*1 STAMADIANOSv STAMADIANOS (Calendar 11). Docket No. 74171. Submitted December No. 29, 1986. April Decided Eugenia granted P. judgment Stamadianos was a default of consent, divorce from Thomas G. with his Livingston Court, Mahinske, Circuit Paul R. J. In her sworn during testimony, for divorce and Mrs. Stamadianos alleged Livingston County that she had lived in for at least ten days immediately preceding complaint. Ap- of her later, proximately year sought one Mr. Stamadianos to have judgment set aside or to have modified certain incorporated judgment regarding property a settlement payment fees, attorney alleging of Mrs. Stamadianos’ upon Mrs. Stamadianos had committed fraud the court misrepresenting court, residency. following hearing, her a allegations residency found that Mrs. Stamadianos’ and, holding jurisdiction false that it had been without to enter judgment divorce, proceedings dismissed the and assessed attorney against plaintiff. defendant’s costs and fees Appeals, Kelly, P.J., The Court of M. J. Burns, and R. B. J. (Benson, J., dissenting), held that the rule concerned only venue and not the court’s and remanded the (Docket 66909). proceedings case for further No. The Court of Beaudry certified Beaudry, conflict with opinion In an joined by Riley, Justice Chief Justice and Justices Brickley, Cavanagh, Boyle,
Williams
Supreme Court held:
granted
that in order to be
a
person
divorce
a
must have resided in the
in which the
days immediately pre-
for divorce was filed for ten
References
2d,
Separation
Am Jur
Divorce and
240-244.
§§
2d,
Am Jur
Domicil 5.§
Validity
imposing
residency requirements
statute
durational
applicants.
divorce
57 ALR3d 221.
op
the Court
requirement,
filing,
180-day
ceding
like the
state
venue, provision.
jurisdictional, and not a
is a
grant
judgment of divorce
court to
of a circuit
Jurisdiction
obligate
residency requirements
from statute. State
derives
*2
period of time
person seeking
for a certain
a divorce to reside
providing
specific language of the statute
The
within the state.
coupled
requirement
county residency
with the
ten-day
the
residency requirement
history
legislative
judicial
that
of
may be drawn
a distinction
no bases on which
evidences
requirement
residency
and the ten-
180-day state
between the
Thus,
requirement.
day county residency
the decision
judgment
plaintiffs
Appeals
and the
must be reversed
Court of
divorce set aside.
Reversed.
appeal
Levin, dissenting,
should
stated that
Justice
improvidently
appeal
ground
was
that leave to
dismissed on the
advocacy
requisite
in the
granted
there is not
because
importance.
question
Leave
Supreme
Court to decide
Appeals
granted
the Court of
was
the decision of
because
by
conflicting
that Court
a decision rendered
seen as
with
Supreme
the decision of
another case and with
Lehman,
party in this
Neither
jurisdictional to the of a should be decided. part this case. no in the decision of
Justice Archer
took
(1984)
App 430;
reversed.
Riley, Stamadianos Opinion of the Court Appeals1 certified question by decide a panel in the instant case erred as to whether rule ten-day county in MCL MSA 25.89 is a venue set forth provision. than a provision rather this Court is the issue raised Also before (treated application as an leave plaintiff fees, assessments, regarding attorney appeal)2 costs. decision in reverse the Court of
We Stamadianos v and hold that
350 NW2d Thus, provision jurisdictional. divorce, and need not we set aside the plaintiff. reach the other issue raised
I. FACTS granted judg- a consent default *3 27, 1981, April Living- ment of divorce on the by plaintiff alleged ston Circuit Court. The her divorce, complaint sworn for and testified at pro hearing complaint, confesso on her she in Livingston had lived for at least ten County preceding the her days immediately filing of com- plaint.
A property
apportioning
settlement
the assets
and liabilities of the parties
among
the several
Court,
by
order of the
On
the certification
the Court of
Appeals pursuant
to Administrative Order No. 1984-2 that
its
in the
decision
instant case is
conflict with its decision in
Beaudry Beaudry,
20 Mich
granted was a Also included the court. plain- pay requiring toward to $625 defendant sion tiffs ing entry year Approximately attorney one follow- fees. judgment, the defendant this default property modify settlement motion filed a provisions, attorney-fee provision. as the as well modification, the defendant alternative to As an requested judgment of the default the entire plaintiff alleging had aside, that the be set divorce committed ing misrepresenting upon court, includ- frauds several a resident that she was required statutorily County Livingston ten for the immediately preceding days plaint. admitting the com- plaintiff eventually an affidavit filed comply with the failure to rule. hearing Following mo- defendant’s on the that it had been without tion, court found the trial judgment of divorce. How- to enter judge that, concluded since ever, further the trial plaintiff remarried, than set aside rather the the settlement had property aside the he would set attorney
provisions and the award of plaintiffs addition, denied the the court fees. pursuant request attorney accrued fees which plaintiff modify. sub- motion to defendant’s sequently alleging for divorce filed an amended seeking alimony, followed fault and change alternative, or, of venue motion for granted proceedings. The court a dismissal attorney request and assessed for dismissal $6,107.38) totaling against plain- fees and costs tiff. *4 trial court to award It the refusal of the attorney against of fees and costs and the assessment fees plaintiff Court of raised
her that the plaintiff Appeals. However, did not chai- while the v Stamadianos Opinion of the Court lenge ruling the trial it juris- court’s lacked decree, diction to enter a divorce dispos- concluded that was the issue, 552.9; itive that MCL MSA 25.89 is therewith, a venue provision. they Consistent rein- stated the consent default judgment divorce and vacated the award of attorney fees and costs against plaintiff. The case was remanded trial court for consideration of whether attorney fees and costs pursuant incurred to defendant’s motion for resulting appeal modification and the should against be assessed either party.
II. DISCUSSION
In Michigan,
there is no common-law authority
grant
of divorce. The
judgment
jurisdiction of
the circuit
courts
matters of divorce is strictly
Yedinak,
409;
Yedinak
statutory.
v
Mich
(1970),
625;
NW2d 706
Flynn
Flynn,
Hatch,
6
court
to establish that either of the
had
year.
resided in the State of
Cum
Supp
See
No
2,
CL
§
25.89).
(CLS
1929,
[4]
1945, §12731,
§
12731,
Michigan
as
amended
for a
Stat Ann 1946
period of 1
PA
[*]
[*]
[*]
the defendant
answer
While
withdrew his
(1981),
189;
Lynch Lynch,
Colony
See
NC
SE2d
Old
Porter,
581;
Trust Co v
324 Mass
this state case unless: First, party applying therefor shall have resided year immediately preceding state for 1 the time of petition or .... bill therefor Opinion of the Court consented that bill of be taken as confessed, plaintiff proceed and consented case, pro at once as does confesso still such consent jurisdiction. not establish Bradfield v Bradf 468) (129 ield, Rep Am St [117 (1908)], say: we NW that, urged "It even should the court hold complainant was not a resident of this State statute, meaning defendant within admitting allegation in his of the bill answer *6 raising precluded to her residence is from relative question. juris- Such admission did not confer otherwise, upon If the law were diction the and collusive and fraudulent divorces Such the court. defeated, very purpose of the statute would be encouraged. against public policy. Upon would question the conclusion of the court is founded supported (Citing upon by authority.” reason and Smith, (1901)], 219 721 Smith v 10 ND NW and [86 Prettyman, 125 Ind 149 NE 179 Prettyman v [25 (1890)].) Mich [325 615-616.] White, 242 219 See also White v Mich NW (1928), supra, Bradfield, and Pier 593 Bradfield v Pierson, 667; 347 779 son v 132 Mich NW2d Having Michigan sup- reaffirmed that case law ports quirement the conclusion that the state re- jurisdic-
of MCL
MSA 25.89 is
ten-day county
tional,
conclude, also,
we
set forth
the same stat-
represents
jurisdictional
also
ute
limitation on
power
the circuit court’s
to enter a divorce decree.
Lehman,
This
held in
312
Lehman v
Mich
102, 105;
§
county
in the
for divorce must be filed
"Bills
parties
one of the
where
resides.”_
5
Lehman,
county residency
At the time of
solely
where
or one of them reside
specific
requirement.
no
time
would be decreed. There was
divorce
1929 CL 12728.
9
Opinion of the Court
See, also,
Chippewa
Judge,
Titus v
Circuit
(1912)]. [Emphasis
origi-
Mich 507
NW 487
[134
nal.
lished,
the trial court was without
granted
should have
defendant’s motion to dismiss
complaint.
White,
the
NW 593
White v
Mich
[219
(1928)];
Lehman,
Lehman v
contrary, Abadi, 78 Mich 1977, in in Abadi v (1977), 73, 870 county requirement lv den 76-77; NW2d ten-day Appeals found the in the same statute set forth provision.7 to be a venue pri- recognize the statute includes We complainant or defen- requirement mary dant reside immediately in for 180 the state require- complaint. That preceding jurisdictional, as to so ment is intended to be complainants who prevent shopping” by "forum diffi- may cult no-fault divorces are more live states where Michigan they under the obtain than are to Iowa, 419 US divorce law. See Sosna 553; 393; 2d Ct 42 L Ed 95 S However, 10-day requirement with we find the is respect action which Regarding the provision only. brought is a venue case, plaintiff state present has resided change in her status but the marital since disrupted life unexpectedly style has her family her out- prompted her to solace with seek Michigan. 10-day residency requirement side designed persons plaintiff as to bar such not dissolving their marital this state. from bonds Judge However, noted his dissent as Benson supra, the conclusion in Abadi regarding be- was dictum hearing judge, following cause question trial on plaintiff’s plain- residency, found that tiff had in fact requirement satisfied Thus, 552.9; there of MCL MSA 25.89. was no reason for the Court of in Abadi ten-day county determine quirement not re- whether or provi- was a venue or a sion_ merged into the the state and
same 1974 PA MCL MSA 25.89. section. *9 the of Court stating dictum, it Nevertheless was the Abadi ten-day residency requirement was a that Appeals panel provision, that venue addition, in the instant case followed. In acknowledging while holding in Lehman that residency requirement jurisdictional, was distinguished Appeals Lehman from the Court of this case on the basis of the fact that Lehman involved presently statute than the one a different question,8 decided, Lehman was in and that when Michigan Legislature yet not "the had embraced concept subsequently modern of venue as set the forth Chapter the Revised Judicature Act supra, 435-436.9 . . . .” While it is true that the Lehman case involved existing statute, different we also believe that (1929 county requirement at the time of Lehman 12728) positive no more in its command CL was residency requirement imple- that he limitation on the circuit mented as a language 552.9; the current MCL court than compel disparate and, thus, MSA 25.89 does not application.
Regarding the Court of conclusion that it de- Lehman need not be followed because was concept prior to the modern of venue em- cided Chapter braced in 16 of the 1961 Revised Judica- agree Legislature Act, ture we do not that provisions Chapter intended the venue supersede jurisdic- Revised Judicature Act to provision 552.9; tional set forth MCL MSA 25.89. history 552.9; MSA
We believe that the
of MCL
legislative
25.89 evidences a
intent
that
the ten-
county residency requirement
jurisdic-
day
(MSA 25.86),
Lehman, supra,
Stama
involved
tional. statutes, precursor this Court construed gan being 552.9; MSA 25.89 as PA MCL supra. (1929 12728.) Lehman, CL jurisdictional. Act 16 of the Revised Judicature Chapter the venue provided This act enacted. not Chapter jurisdictional. provisions However, there is 27A.1601. MSA MCL the Revised Judicature nothing Chapter 16 of or affects addressing any way Act venue 552.9; MSA 25.89.10 This influences MCL intended to if had Legislature believes of Lehman by codifying abrogate the rule Act, it Revised Judicature venue *10 in the Revised provision included a would have in divorce cases. addressing Act venue Judicature However, it do. this did not the
Furthermore, the enactment of following Michigan Act in the Revised Judicature Beaudry, affirmed Lehman in Court of supra. And, Legislature when the subsequently, 552.9; 25.89 in 1974 PA amended MCL MSA in to that used they language did so with similar Beaudry in the time of and provision effect at compiled in that of the kept provision section not concerning divorce and the venue laws Judge 10 In stated further his dissent Benson reject Appeals analysis case: reason to in this import provisions through statutory It of no that the current on 600.1601; MSA 27A.1601 MCL venue embodied MCL 600.1659; group at the MSA 27A.1659 were not codified as a Most, all, provisions Lehman if not of the set time was decided. (rja) Chapter Act forth in 16 of the Revised Judicature compiled laws when Lehman was embodied elsewhere decided or time of Lehman. the venue divorce actions. I fail to see how the pre-existing represented law of this state at the the common Moreover, simple fact is that not one of rja Chapter applies provisions specifically 16 of Legislature’s codification of rja legislative a venue reflects intent to overrule Lehman. [133 437.] Stamadianos 13 Opinion op the Court provisions of the Revised Judicature Act. In ana- lyzing pattern legislative judicial of action only related to MCL MSA we can 25.89, 552.9; Legislature conclude that the that knew interpreted chapter courts had not the venue affecting prior the Revised Judicature Act as hold- ings ten-day county residency require- that jurisdictional. citing Beaudry, ment was Lehman. Legislature, promulgating On two occasions the Chapter the Revised Judicature Act (following holding), the Lehman and later in enacting (following Beaudry PA the decision), change judicial interpreta- did not act statutory provision. county residency tion of the legislative Thus, this Court believes silence only interpreted judici- can ary’s position as consent to the ten-day county residency juris- of MCL MSA 25.89 is a provision. dictional and not a venue Finally, specific language statute, coupled legislative judicial history with the requirement, the vinces this Court quirement further con- re- jurisdictional provision.
is a But for the days requisite satisfy number of residency requirements, needed to requiring period
one days requiring state, within the and one period county, language of ten within the residency requirements of the two are identical. plain language Moreover, the of the statute indi- *11 application by cates similar the use of the word county residency "and” between the state and requirements. Also, we note that nowhere Consequently, statute is the term venue used. reading clear of the statute evidences no basis requirement applied differently to be residency requirement. than the state This Court substantially believes, because of the similar lan- Mich Levin, J. Dissenting Opinion guage addressing the state and used both requirements, Legislature in- that applied similarly. Fur- tended the ther, residency require- 180-day because state juris- consistently determined to be ment has been language specific dictional,11 the of the statute require- ten-day county residency that the dictates ment must also be jurisdictional. Appeals
Thus, decision we reverse requirement is a that the provision. plaintiff’s judgment of di- venue appeal attorney is and her as to vorce set aside fees, assessments, and costs thus need not be con- sidered. public question being costs, a
No involved. Williams, C.J., Brickley, Cavanagh, Boyle, JJ., J. Riley, concurred with (dissenting). question
Levin, J. is the subject opinion matter of the of the Court is ten-day county residency provision* whether the jurisdictional. Eugenia is, If it then the failure of Livingston County Stamadianos to have resided preceding days immediately for at least ten complaint might require of her consent default of divorce be set aside.
i appeal granted Leave to deci- because the Appeals sion of the Court was seen as conflict- ing panel with a decision rendered another Michigan holding There is no case law the state anything jurisdictional. in divorce is but Even where the ten-day county requirement Court of determined the to be a provision, residency requirement venue to be the state was still determined jurisdictional. Stamadianos, supra. Abadi and MCL MSA 25.89. *12 15 Dissenting Levin, J. Opinion in a different case and with Lehman, Lehman v in opinion this Court’s 312 (1945). Mich NW2d Neither party advocating this case is provision be construed as ten-day county residency provision. a venue It appears Eugenia that both time, point and Thomas G. at one agreed posi- to have the divorce set aside. Their tions have changed throughout litigation.2 This question is not a case which the whether provision is one of venue or one of jurisdiction should be decided. divorce cases there a many disgrun- will be
tled party looking ground appeal. on which to I opinion calling would not issue an attention to a invalidating basis for a divorce at significantly discovers, point later in time a party because or reveal, chooses to the county residency re- quirement was not satisfied. cases,
In many estoppel or laches should bar a 2Eugenia initially Livingston County stated that she had lived in requisite preceding immediately for the ten of her complaint. subsequently comply She said that she failed to with the ten-day county residency provision because "she never intended to Livingston County permanent make her home and had not under necessity establishing legal residency.” stood the of such intent in 430, 433; subjective aspect Mich residency NW2d might judicial gloss. be a party arguing provi- Neither that the provision. sion is a venue Thomas has not filed a in this brief Court. Initially, Eugenia sought the divorce and obtained a consent default judgment Livingston 27, April Circuit Court on 1981. The Stamadi- County, Eugenia had anoses resided in Washtenaw but commenced Livingston County request the action to at the of Thomas who wished community. year avoid shame the Ann Arbor Greek Almost a later, modify property Thomas filed a motion to settlement and or, attorney-fee provision alternative, to set aside the default judgment Eugenia on the basis that had committed on the fraud court. filed, Eugenia on June an amended answer to Thomas’ modify judgment motion to alternative relief of divorce and consented sought, namely that the entire of divorce changed position setting set opposed aside. Thomas then his aside the divorce. Dissenting Levin, J. setting
party courts from aside the divorce. Some have court’s residency that if both submitted to the reasoned jurisdiction, party raised a and neither they
issue, are later barred from chal- grounds.3 lenging the on those divorce *13 satisfying may subjective There be a element to requirement ten-day county residency which the frequently perhaps satisfy. many, In will difficult to be spouse cases, most a moves out of when spouse might home, that not relocate the marital in a there is an intention to make which permanent transitory It time in a a new home. is a person’s life.
n
Appeals
The Court of
ruled that
requirement
provision,
residency
a venue
not
was
jurisdictional prerequisite
a
of a com-
plaint
seeking legislative intent,
In
for divorce.4
Gunn,
198, 200;
See Gunn v
205 Mich
Because there has not requisite been the advo- cacy this Court to decide a question of this importance, leave was granted and improvidently appeal should dismissed. J., part took no in the decision of this
Archer, case. jurisdiction. plaintiff Beaudry lack commenced 22, 1968, County Oakland complaint on June and ten later filed her July period for divorce on 1968. Because the computed excluding day, ten-day county requirement the first not satisfied. *14 pre-no-fault The other case said to be in conflict is the divorce case Lehman, supra, Lehman v where this Court said that the residency requirement jurisdictional. The statute at that time provided: matrimony may "A divorce from the bonds be decreed the circuit court of the where the or one of them requirement. held, reside.” There was no durational The Court be- party cause sought neither resided in the in which the divorce was just "visiting parents,” but were the circuit court was grant
without the divorce decree. 435.