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### STATE OF MICHIGAN

COURT OF APPEALS

RAJ KAMAL GOVINDARAJULU,

Plaintiff/Counter DefendantAppellant, UNPUBLISHED April 12, 2016

v No. 325822
Oakland Circuit Court SANGEETHA SUNDARARAJAN, LC No. 2014-822159-DM

Defendant/Counter PlaintiffAppellee.

Before: G LEICHER , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

.

Plaintiff appeals as of right t he trial court’s grant of a def ault judgment of divorce in

favor of defendant. We affirm.

The parties have one minor son and lived together in their mar ital home in Novi, Michigan. In 2013, the parties traveled to India with their so n to attempt reconciliation of their marriage. In March 2014, defendant returned to Michigan becaus e her green card was set to expire, but shortly thereafter re turned to India to continue wo rking toward reconciliation with plaintiff. However, when she r eturned, plaintiff had left Indi a with the parties’ son. Plaintiff changed his phone number and his parents would not give defenda nt any information about his whereabouts. She later discovered that plaintiff and the minor child were living in Texas. She returned to Michigan on July 8, 2014. On July 28, 2014, plaint iff filed a complaint for divorce in Michigan, alleging that he and de fendant resided in Novi, Michi gan. On August 22, 2014, plaintiff filed a counterclaim, alleging that her residence was in Michigan, but denying defendant’s residency. After f iling for divorce, plaintiff too k the minor child back to India, where they stayed throughout the remainder of the proceedings. Plaintiff filed a motion challenging jurisdiction, alleging that neither he nor defendan t had resided in Michigan prior to his filing for divorce or the f iling of defendant’s counterclai m. The trial court denied the motion, and entered a default judgment of divorce. Plaintiff appeals.

Plaintiff first argues that the trial court lacked subject mat ter jurisdiction over this case. “The question whether a court ha s subject-matter jurisdiction i s a question of law that we review

de novo.” Kar v Nanda , 291 Mich App 284, 286; 805 NW2d 609 (2011). Whether the requirements of MCL 552.9(1) have been satisfied is a question of fact. Berger v Berger , 277-2- Mich App 700, 702; 747 NW2d 336 (2008). “Questions of domicile and intent are also questions of fact.” Kar , 291 Mich App at 287, citing Leader v Leader , 73 Mich App 276, 283; 251 NW2d 288 (1977). We review factual findings for clear erro r. Berger , 277 Mich App at 702. “A finding is clearly erroneous if, on all the evidence, the Court is left with the definite and

firm conviction that a mistake has been made.” Id

.

Plaintiff specifically argues th at the trial court lacked subj ect matter jurisdiction over both his own complaint as well as def endant’s counterclaim because n either party met the 180-day state residency requirement or the 10-day county residency requ irement of MCL 552.9(1). MCL 552.9(1) provides:

A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resi ded in this state for 180 days immediately preceding th e filing of the complaint and, except as otherwise provided in subsection (2), the complainant or defend ant has resided in the county in which the complaint is filed for 10 days immediat ely preceding the filing of the complaint.

“The statutory residency requirements are jurisdictional, and a divorce is void if it does not comply with the residency requirements.” Kar , 291 Mich App at 287. “Residence” is “a place of abode accompanied with the intention to remain.” Leader , 73 Mich App at 280. Further, “the ordinary, common meaning of the term ‘reside’ does not require an intent to remain permanently or indefinitely,” but it does re quire “an intent to remain.” Kar , 291 Mich App at 288.

A review of the record reveals that it is undisputed that, at the start of both the state and county residency periods, neith er plaintiff nor defendant was p hysically located in Michigan or Oakland County. However, a part y’s “continuing physical presen ce” in the state or county for the entirety of the state and county residency periods is not r equired by MCL 552.9(1). Berger

, 277 Mich App at 703; Leader , 73 Mich App at 283. “[D]etermining residence or domicile requires a multi-factor analysis, but the preeminent factor is the person’s intent.” Berger , 277 Mich App at 704. Further, “an established domicile is not dest royed by a temporary absence if the person has no intention of changing his or her domicile.” Id . While addressing the 10-day county residency requirement of MCL 552.9, the Berger Court held that a temporary absence from the county during the jurisdictional period did not defeat jurisdiction, holding that when the plaintiff “establish and intended” the county to be her residen ce, “her temporary absence did not change it.” Berger , 277 Mich App at 703.

In Leader , the plaintiff and the defendant “had lived in Michigan for a substantial period

of time.” Leader , 73 Mich App at 278. But in October 1975, the plaintiff left Michigan and traveled to Kentucky with the defendant until January 1976. Id . The plaintiff testified that she traveled to Kentucky at the defe ndant’s request to attempt reco nciliation. Id . The plaintiff added that she had no intent of staying in Kentucky, or anywhere else with the defendant, unless the couple reconciled. Id . Even though it was clear that the reconciliation would be un successful, the plaintiff stayed in Kentucky because she did not want to le ave her children without a mother and because the defendant was threatening her. Id

. The Leader Court concluded that, based on the plaintiff’s intent, her resi dence remained in Michigan eventhough she was physically present in Kentucky for most of the jurisdictional period. Id . at 278, 280.-3- Leader is instructive on the case at bar. Here, plaintiff was absent from the state and county for a majority of the residency requirements preceding t he filing of the plaintiff’s complaint or her counterclaim. However, like the facts in Leader , defendant was absent from Michigan and from Oakland Count y due mainly to plaintiff’s acti ons, and it was her intention to

remain. Defendant testified that she lived in her marital home in Novi before the statutory period began, and while she was visiting India it was always her inten tion to return to the marital home in Novi, but she could not due to plaintiff’s actions of taking her son, locking her out of the marital home, emptying their jo int bank accounts, and threateni ng and harassing her via e-mail. Defendant went to India to work on the parties’ marital problem s with family and did not intend to remain in India, as evidenced by her return trip to Michigan to maintain her green card status. Consistent with her stated intention of residing in Michigan, d efendant ultimately returned to Michigan and attempted to continue residing in the marital home even though she did not know where plaintiff and her son we re living. Also significantly, i n the complaint and counterclaim for divorce, plaintiff and defendant each averred that defendan t had resided in Michigan and Oakland County for the requi site statutory period.

Ultimately, resolution of the issue of jurisdiction involved acredibility determination and the trial court found defendant’s testimony regarding her inten t to reside in Michigan to be more credible than plaintiff’s test imony. Indeed, there were signif icant facts that likely impacted the trial court’s determination of plaintiff’s credibility, includi ng that plaintiff had not been present for the entire pendency of the proceeding despite multiple court orders, including a bench warrant for his arrest, had fled the country with the parties’ son, and was in fact facing charges of criminal kidnapping of the minor child. After careful scrutiny of the record, and giving

deference to the trial court’s s uperior fact-fi nding ability, w e are not left with a definite and firm

conviction that the trial court erred when it found that defend ant satisfied the residence requirements of MCL 552.9(1) under the specific circumstances o f this case. See MCR 2.613(C); Berger , 277 Mich App at 715. Thus, subject matter jurisdiction was p roper.

While only one party must satisfy the residency requirements s et forth in MCL 552.9(1), we note that we do not agree with plaintiff that the trial cour t erred in determining that he was also a resident of Michigan and Oakland County. While plaintif f stated in his complaint for divorce that he satisfied the jur isdictional requirements, he l ater challenged the veracity of his own complaint. Plaintiff blamed his own counsel for misinformi ng him of the jurisdictional requirements and provided documen ts purporting to show that he was never physically in Michigan for any of the 180-day statutory period because he fle w directly from India to Texas. But plaintiff’s counsel informed the trial court that plaintiff told him that his residence was in Novi, Michigan and that he woul d only be in Texas temporarily f or a work assignment. The trial court credited plaintiff’s couns el and relied on the plain lang uage of the complaint that plaintiff himself executed and filed, finding that plaintiff’s absence fr om Michigan did not defeat jurisdiction under those circumstances. It should be noted tha t the trial court never had the opportunity to hear testimony from plaintiff because he never a ppeared before the court despite multiple orders. Again, giving deference to the trial court’s superior fact-finding ability, we are

not left with a definite and firm conviction that the trial cou rt erred when it found that plaintiff also satisfied the residence requirements of MCL 552.9(1). See MCR 2.613(C); Berger , 277 Mich App at 715.-4- Plaintiff next argues that the trial court abused its discreti on and failed to follow the procedures required in MCL 552.9f, when it did not address the 6-month waiting period and made no finding of undue hardship or compelling necessity to wa ive the period. Plaintiff failed

to raise this claim of error at t he hearing or in a subsequent motion to set aside the default judgment. Thus, this argument is not preserved. Porter v Porter , 285 Mich App 450, 464; 776 NW2d 377 (2009). However, we may review unpreserved issues if the question presented is one of law concerning which the necessary facts have been presented

. Duffy v Dep’t of Natural

Resources

, 490 Mich 198, 209 n 3; 805 NW2d 399 (2011). Questions of law a re reviewed de

novo. Matley v Matley , 234 Mich App 535, 537; 594 NW2d 850 (1999), vacated on other grounds 461 Mich 897 (1999).

MCL 552.9f provides as follows:

No proofs or testimony shall be taken in any case for divorce until the expiration of 60 days from the time of filing the bill of compl aint, except where the cause for divorce is desertion, or when the testimony is ta ken conditionally for the purpose of perpetuating such testimony. In every case wher e there are dependent minor children under the age of 18 years, no proofs o r testimony shall

be taken in such cases for di vorce until the expiration of 6 mo nths from the day the bill of complaint is filed. In cases of unusual hardship or such compelling necessity as shall appeal to the conscien ce of the court, upo n petition and proper showing, it may take testimony at any time after the expir ation of 60 days from the time of filing the b ill of complaint. Testimony may be taken conditionally at any time for the purpose of perpetuating such testimony. When the defendant in any

case for divorce is not domiciled in this state at the time of commencing the suit

or shall not have been domiciled herein at the time the cause f or divorce arose, before any decree of divorce shal l be granted the complainant m ust prove that the parties have actually lived and cohabited together as husband a nd wife within this state, or that the complainant has in good faith resided in thi s state for 1 year immediately preceding the filing of the bill of complaint for d ivorce. [Emphasis added.]

“The failure to comply with the statute does not render the jud gment of divorce void ab initio

, but renders it voidable in a proper proceeding for that purpose .” Calo v Calo , 143 Mich App 749, 753; 373 NW2d 207 (1985). Judgments that are merely voida ble “may be set aside upon a timely application in the same proceedings as a matter of judic ial discretion.” Abbott v Howard

, 182 Mich App 243, 247; 451 NW2d 597 (1990).

Here, the trial court failed to address waiver of the statutor y period on the record. However, we conclude that reversal or setting aside of the judg ment would be harmless because there was significant evidence in the record to support waiver of the statutory waiting period. Plaintiff filed his complain t for divorce on July 28, 2014. Th e trial court took proofs and ultimately entered a default judgment of divorce on January 12, 2015—16 days before the expiration of the statutory 6-m onth waiting period. During the pendency of this divorce case plaintiff never appeared before the court despite being ordered to do so repeatedly. Plaintiff even stopped communicating with his o wn attorney and did not give th e court an address for himself and the minor child. The trial court resorted to appointing a Guardian Ad Litem (GAL) to track-5- down plaintiff and the parties’ minor child, who defendant had not seen since March 2014. The GAL worked with police and was able to find out that plaintiff had fled the United States and taken the minor child to India. On October 6, 2014, the Novi p olice issued an arrest warrant for plaintiff for parental kidnappi ng but stated if plaintiff retur ned the child to Michigan, the charges would be dropped. Plaintiff did not return to Michigan. Final ly, the GAL reported that on November 14, 2014, police informed her that plaintiff had not r esponded to their e-mail request so they were commencing the extradition process. Thus, the rec ord reflects that there were exigent circumstances involved in this case concerning the wher eabouts and the safety and wellbeing of the parties’ minor child that constituted both “unusua l hardship” and “compelling necessity” that “appeal[ed] to t he conscience of the court.” M CL 552.9f.

Finally, plaintiff argues that the trial court violated his du e process rights when it denied his motions to dismiss his own complaint and defendant’s counte rclaim for lack of jurisdiction without allowing his counsel the o pportunity to present all of his evidence or question defendant. We disagree. Plaintiff failed to raise this argument in the tr ial court, so the issue is unpreserved.

Porter , 285 Mich App at 464. Unpreserved claims of constitutional er ror are reviewed for plain error affecting substantial rights. In re TK , 306 Mich App 698, 703; 859 NW2d 208 (2014).

Due process generally requires “notice of the nature of the pr oceedings and a meaningful opportunity to be heard by an impartial decision maker.” Reed v Reed , 265 Mich App 131, 159; 693 NW2d 825 (2005). Here, the record is clear that the trial court safeguarded plaintiff’s due process protections. Plaintiff chose not to attend the hearing , so by his own choosing he could not personally be heard on the matter. However, plaintiff’s at torney not only attended the hearing but represented plaintiff’s position zealously. Plaint iff’s counsel presented plaintiff’s argument regarding the trial court’s lack of subject matter jur isdiction due to the residency requirements, strenuously voiced o bjections to defendant’s posi tion, and presented documentary evidence allegedly in support of plaintiff’s position. Thus, t he trial court allowed plaintiff a full and fair opportunity to present his case. Therefore, we conclu de that there is nothing in the

record that establishes that e rror occurred with regard to plai ntiff’s due process rights.

Affirmed. Defendant, the prevailing party, may tax costs. MC R 7.219.

/s/ Elizabeth L. Gleicher /s/ Mark J. Cavanagh

/s/ Karen M. Fort Hood