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STATE OF MICHIGAN
COURT OF APPEALS


ROCHELLE LYNN NASH and JEFFREY SEAN SALTER, Plaintiffs-Appellants, v

FOR PUBLICATION August 7, 2008 9:05 a.m.

STEVE SALTER and KAREN SALTER, Defendants-Appellees.

No. 282311 Wayne Circuit Court Family Division LC No. 07-722692-DC Advance Sheets Version

Before: Zahra, P.J., and Whitbeck and Beckering, JJ. ZAHRA, J. Plaintiffs, Rochelle Nash and Jeffrey Salter, appeal as of right the order of the circuit court dismissing their complaint for determination of custody. On appeal, they argue that the circuit court erred in finding that it lacked subject-matter jurisdiction under the Uniform ChildCustody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1201, to make a child-custody determination with respect to their daughter. Plaintiffs had asked the circuit court to take jurisdiction of this custody dispute and deny enforcement of a Texas custody order that plaintiffs contend was rendered without jurisdiction. We conclude that plaintiffs cannot establish homestate jurisdiction under the UCCJEA. We also conclude that the circuit court properly determined that the Texas court established jurisdiction substantially in conformity with the UCCJEA. Further, we conclude that defendants, Steve Salter and Karen Salter, properly intervened in the custody action in Texas instituted by plaintiff Jeffrey Salter. We affirm. I. Basic Facts and Proceedings This case arises from a custody dispute between plaintiffs, the parents of the child, and defendants, who are Jeffrey Salter's parents. Plaintiffs and the child, who was born August 3, 2006, lived with defendants in Texas from approximately August 5, 2006, until March 20, 2007. On March 20, 2007, Rochelle Nash moved to Michigan, and, the next day, Jeffrey Salter filed a petition in the 356th Judicial District Court of Texas ("the Texas court") asking that court to enter an order making him "sole managing conservator" of the child. On or about May 20, 2007, Jeffrey Salter moved to Michigan with the child. He apparently did not further pursue the petition for custody. The child resided in Michigan with both plaintiffs commencing on or about May 21, 2007. On July 23, 2007, defendants filed a "Petition in Intervention of Grandparents in

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Suit Affecting the Parent-Child Relationship" in the Texas court. They claimed that "appointment of [plaintiffs] as joint managing conservators would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development," and asked the Texas court to appoint them joint managing conservators with the "exclusive right to designate the primary residence of the child." Plaintiffs filed their complaint for determination of jurisdiction and custody in the Wayne Circuit Court ("the Michigan court") on August 22, 2007. They argued that the Texas court did not have jurisdiction under the UCCJEA and that the Michigan court had jurisdiction. Accordingly, plaintiffs asked the Michigan court to award them custody of the child. On October 1, 2007, the Texas court entered an order appointing defendants temporary sole managing conservators and plaintiffs temporary possessory conservators of the child. The Texas court's order provided that defendants had the right to physical custody of the child and that plaintiffs were to have possession of the child at times mutually agreed upon in advance by the parties. The order further provided that defendants "shall take immediate possession of the child at [plaintiffs'] residence" in Michigan. Defendants successfully moved to dismiss plaintiffs' complaint in the Michigan court. An order dismissing the Michigan action for lack of subject-matter jurisdiction was entered on November 7, 2007. The child moved back to Texas and has resided with defendants since December 3, 2007. Plaintiffs returned to Texas to be near the child. II. Standard of Review "Whether a trial court has subject-matter jurisdiction presents a question of law that this Court reviews de novo." Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003). However, "the determination whether to exercise jurisdiction under the UCCJEA [is] within the discretion of the trial court, and would not be reversed absent an abuse of that discretion." Young v Punturo (On Reconsideration), 270 Mich App 553, 560; 718 NW2d 366 (2006). The jurisdictional determination in this case involves the UCCJEA, codified in Michigan as MCL 722.1101 et seq. We review issues of statutory construction de novo as questions of law. Atchison, supra at 534-535. We also review constitutional questions de novo. Blackburne & Brown Mortgage Co v Ziomek, 264 Mich App 615, 620; 692 NW2d 388 (2004). III. Analysis A. Jurisdiction in Michigan Plaintiffs first argue on appeal that the Michigan court erred in determining that it lacked subject matter jurisdiction for the sole reason that Michigan did not have home-state jurisdiction under the UCCJEA, MCL 722.1201. Although plaintiffs are correct that this is not the only basis for jurisdiction, we nevertheless conclude that the Michigan court properly dismissed plaintiffs' complaint. The UCCJEA became effective in Michigan on April 1, 2002. Section 201, codified in Michigan as MCL 722.1201, sets forth the basic jurisdictional requirement for making an initial custody determination:

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(1) Except as otherwise provided in section 204,[1] a court of this state has jurisdiction to make an initial child-custody determination only in the following situations: (a) This state is the home state[2] of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. (b) A court of another state does not have jurisdiction under subdivision (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 207 or 208, and the court finds both of the following: (i) The child and the child's parents, or the child and at least 1 parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. (ii) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. (c) All courts having jurisdiction under subdivision (a) or (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under section 207 or 208. (d) No court of another state would have jurisdiction under subdivision (a), (b), or (c). (2) Subsection (1) is the exclusive jurisdictional basis for making a childcustody determination by a court of this state. (3) Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination.

Section 204, MCL 722.1204, provides for temporary emergency jurisdiction in a court of this state "if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." This provision is not relevant here because plaintiffs made no such allegation in their complaint. "`Home state' means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding." MCL 722.1102(g).
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As plaintiffs concede, the Michigan court correctly determined that Michigan was not the child's home state on the date of the commencement of the Michigan proceeding, nor had Michigan been the child's home state within six months before the commencement of the proceeding. The Michigan proceeding was commenced on August 22, 2007, when plaintiffs filed a complaint in the Michigan court. The child lived in Texas from the time she was born on August 3, 2006, until May 20, 2007, when she moved to Michigan with her father. Accordingly, Texas was the child's home state. MCL 722.1201(1)(a). When the Michigan proceeding was commenced, the child had only lived in Michigan for approximately three months and had not lived in Michigan previously. Plaintiffs nonetheless argue that the Michigan court erred by ruling that Michigan lacked subject-matter jurisdiction to make a custody determination solely because the Michigan court did not have home-state jurisdiction. Home-state jurisdiction under MCL 722.1201(1)(a) is not the only jurisdictional basis for making an initial custody determination. Plaintiffs argue that MCL 722.1201(1)(b) provides an alternative ground to support a finding of jurisdiction in Michigan. Plaintiffs refer to this jurisdictional ground as "significant connection" jurisdiction. Plaintiffs' argument is without legal merit. Jurisdiction cannot be premised on the family's significant connection to Michigan unless the court first establishes: (1) there is no "home state" as that term is used in MCL 722.1201(1)(a), or (2) "a court of the home state of the child has declined to exercise jurisdiction . . . ." MCL 722.1201(1)(b). Neither of the above circumstances exists in the present case. Texas is the child's home state and the Texas court did not decline to exercise jurisdiction. Thus, Michigan does not have significant connection jurisdiction over this matter. B. Dismissal After Concluding Texas Had Jurisdiction in Substantial Conformity With The
UCCJEA
Plaintiffs' second argument on appeal is that the Michigan court erred in determining that, because the Texas court had jurisdiction substantially in conformity with the UCCJEA, it was required to dismiss plaintiffs' complaint. We again find no merit to plaintiffs' argument. MCL 722.1206, which governs simultaneous proceedings, provides in pertinent part: (1) Except as otherwise provided in section 204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement[3] of the proceeding, a child-custody proceeding has been commenced in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section 207.

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"`Commencement' means the filing of the first pleading in a proceeding." MCL 722.1102(e).

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(2) Except as otherwise provided in section 204, before hearing a childcustody proceeding, a court of this state shall examine the court documents and other information supplied by the parties as required by section 209. If the court determines that, at the time of the commencement of the proceeding, a childcustody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this act, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this act does not determine that a court of this state is a more appropriate forum, the court of this state shall dismiss the child-custody proceeding. Thus, because a child-custody proceeding had been commenced in Texas at the time of the commencement of the Michigan proceeding on August 22, 2007, the issue is whether Texas had "jurisdiction substantially in conformity with this act." MCL 722.1206(1). When Jeffrey Salter filed his petition in the Texas court on March 21, 2007, the child had lived with one or both plaintiffs in defendants' home since she was born on August 3, 2006--more than six months. Accordingly, Texas was the child's home state on the date of the commencement of the proceeding and therefore had subject-matter jurisdiction under section 201 of the UCCJEA.4 Plaintiffs also argue that the Michigan court was required to find that the temporary restraining order of the Texas court5 violated

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