If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

REBEKAH LYNN SELVIG, formerly known as

REBEKAH LYNN SMITH,

Plaintiff-Appellee,

UNPUBLISHED

September 12, 2019

v No. 343514

Clinton Circuit Court

GARY ANTHONY SMITH, LC No. 2010-022344-DM

Defendant-Appellant.

Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

PER CURIAM.

Defendant appeals as of right the order of the circuit court denying his motion to set aside 

a judgment and awarding attorney fees to plaintiff. We affirm.

I. FACTUAL BACKGROUND

In 1994, the parties married and subsequently had three children. In 2011, the parties 

divorced and stipulated to joint legal custody of the children, sole physical custody with plaintiff, 

and “reasonable and liberal” parenting time for defendant. At some point following the 

judgment of divorce, plaintiff remarried, and in August 2011, defendant stipulated to allow 

plaintiff to move with the children from Michigan to Montana. Defendant also relocated to Ohio 

during this period.

In February 2016, plaintiff notified the Clinton Circuit Court that she had filed a petition 

with the Yellowstone County District Court in Montana so that the stipulated parenting time

order could be enforced in that state. The parties then stipulated to the fact that Montana was a 

more convenient forum for matters related to custody and parenting time because neither they 

nor their children lived in Michigan and the children had resided in Montana for more than six 

months. The parties stipulated to the Clinton Circuit Court declining to exercise continued 

jurisdiction, and to the state of Montana assuming jurisdiction over any further issues of custody, 

parenting time, and child support. However, despites the parties’ stipulation as to jurisdiction, in 

February 2018, defendant filed a motion in the Clinton Circuit Court to set aside the 2011 order 
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changing domicile. Defendant referred to the order as a “default judgment” and alleged that he 

had been trying to rescind his stipulation to the order since shortly after he made it. 

At the hearing on defendant’s motion, the circuit court noted that no “default judgment” 

had been entered related to the change of domicile. The court noted that, based on the stipulation 

regarding jurisdiction, it did not have jurisdiction over the case. The court also found that

defendant had filed his motion in bad faith. The court noted that defendant had previously asked 

a Montana court for relief related to parenting time and was therefore inarguably aware that the 

Montana court was the proper forum for proceedings in the case. The court denied defendant’s 

motion, found that it was frivolous, and awarded $750 to plaintiff for attorney fees. 

II. DUE PROCESS

Defendant primarily asserts that his right to due process was violated when the court

denied his motion and determined that it lacked jurisdiction over the case. We disagree. 

At the hearing on defendant’s motion, defendant claimed that he had been “served 

incorrectly” with notice of entry of the order changing domicile. Although he did not clearly 

explain why he believed service was improper, the record indicates that he believed the notice 

was untimely. On appeal, defendant clarifies his position that he “did not receive seven days’ 

notice of entry of the default judgment as required under MCR 2.603(B)(3).” As explained 

above, however, no default judgment was ever entered in this case, and MCR 2.603 deals solely 

with defaults and default judgments. Moreover, as noted by the trial court at the motion hearing, 

there is simply no evidence that service of the order changing domicile was improper.

On August 12, 2011, plaintiff filed a notice that the order changing domicile would be 

entered pursuant to MCR 2.602(B)(3) if no objections to the order were filed within seven days 

after service of the notice. Contained within the notice was a proof of service indicating that the 

order and notice were sent to defendant’s last known address via first-class mail on August 10, 

2011. The order was not entered for another 12 days, and at no time between service of the 

notice and entry of the order did defendant file any objections pursuant to MCR 2.602(B)(3) as 

to the accuracy and completeness of the proposed order. 

In fact, to the extent that defendant intended to rely upon MCR 2.602(B)(3) as the basis 

of his argument, the argument is still misplaced. Defendant’s argument on appeal is premised on 

the idea that he sought to withdraw his consent to the change of domicile. First, there is no 

evidence in the record of any attempts by defendant to withdraw his consent. There is only a

very clear, signed stipulation in the lower court record dated June 22, 2011, that states: 

I, Gary A. Smith, in agreement with Rebekah L. Smith acknowledge that she and 

our three children . . . will be leaving the state of Michigan and will be moving to 

the state of Montana. Visitation will be decided on as our two schedules permit

and as communicated between Rebekah and I.

Second, the purpose of MCR 2.602(B)(3) is to ensure that written judgments and orders comport 

with the actual decisions made by the trial court; the court rule is not a basis for challenging the 

substance of a trial court’s ruling. Defendant has clearly demonstrated that he had no actual 

objections to the “accuracy or completeness” of the order; he simply changed his mind and 
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wanted the court to reconsider the underlying decision. Accordingly, to the extent that defendant 

intended to argue that MCR 2.602(B) provides a basis to challenge the underlying decision 

supporting the order changing domicile, that argument lacks merit. 

In any event, as the circuit court stated, even if service of notice in 2011 regarding the 

order to change domicile was improper, the parties stipulated in 2016 that Montana would have 

jurisdiction over the case. That is, defendant stipulated to the change of jurisdiction, and now 

claims that he actually never stipulated to the change of domicile in the first place. Defendant

does not explain why he waited until 2018 to file a motion to set aside the order, and defendant 

further neglects to address the puzzling fact that, to the extent defendant never agreed to the 

order changing domicile, he nonetheless stipulated to Montana assuming jurisdiction over any 

further issues of custody, parenting time, and child support five years later. 

Lastly, we note defendant’s argument that the Clinton Circuit Court retained jurisdiction 

despite the stipulated order giving the state of Montana jurisdiction on the basis of a previously 

entered contempt order. In March 2016, the court found plaintiff in contempt of court for 

violating its August 2015 parenting time order, apparently by failing to accommodate 

defendant’s scheduling requests for parenting time during the Christmas holiday in 2015. The 

court awarded attorney fees to defendant and ordered that he was to have an additional week of 

parenting time during the Christmas holiday in 2016. Defendant acknowledges that plaintiff paid 

the attorney fees ordered by the court, but asserts that she failed to cure the contempt order 

because defendant did not exercise parenting time during Christmas 2016. Thus, according to 

defendant, plaintiff’s continuing contempt provided the Clinton Circuit Court with continuing 

jurisdiction over the case. We are not persuaded by this argument.

Defendant has provided no authority—and we have found no authority—to support the 

idea that an order finding a party in contempt of court serves to overpower a subsequent order 

transferring jurisdiction to another state. Moreover, defendant’s argument contradicts the exact 

stipulation that he made: that the Clinton Circuit Court would decline to exercise continuing 

jurisdiction and that “any further issues of custody, parenting time, and child support” would be 

litigated in Montana. Under the plain terms of the agreement defendant made, it would seem that 

any issues he might have had with respect to parenting time during the Christmas holiday in 

2016 should have been raised in Montana. Finally, the stated purpose of defendant’s motion to 

set aside the default judgment was to object to the 2011 order changing domicile. Even if the 

court retained jurisdiction over the issue for which it found plaintiff in contempt—failure to 

comply with a 2015 parenting time order—we cannot conclude that the court would also have 

retained jurisdiction over the issue of domicile, especially in light of the 2016 stipulation. We 

decline to conclude that the court had jurisdiction on the basis of its previous contempt order, 

and we affirm the court’s decision denying defendant’s motion based on its finding that it lacked 

jurisdiction to hear the matter. 

III. ATTORNEY FEES

Defendant lastly disputes the court’s determination that his motion was frivolous, and 

argues that he did not intend to waste the court’s time or harass or delay the opposition by filing 

the motion. However, a party’s intent is not the sole factor in determining whether an action was 

frivolous under MCL 600.2951. Under the statute, a “frivolous” action is one where: 
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(i) The party’s primary purpose in initiating the action or asserting the 

defense was to harass, embarrass, or injure the prevailing party.

(ii) The party had no reasonable basis to believe that the facts underlying 

that party’s legal position were in fact true.

(iii) The party’s legal position was devoid of arguable legal merit. [MCL 

600.2591(3)(a).]

In the instant case, the circuit court reasonably concluded that defendant “had no 

reasonable basis to believe” that he had a right to bring his motion in Michigan, in light of his 

statements that he had previously sought relief in Montana, and based on the fact that he had 

signed two stipulations either agreeing to allow his children to move to Montana or 

acknowledging Montana had jurisdiction over future disputes regarding custody and parenting 

time. Because defendant could not have reasonably believed that the Clinton County Circuit 

Court retained jurisdiction, the court’s decision to award attorney fees to plaintiff was not an 

abuse of its discretion. See MCL 600.2591(3)(a)(ii) and (iii).

Affirmed. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219. 

/s/ Christopher M. Murray 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood