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### STATE OF MICHIGAN

COURT OF APPEALS

LUKE NATHANEAL BOWMAN,

Plaintiff-Appellant, UNPUBLISHED October 10, 2016

v No. 331870

Van Buren Circuit Court CHELSEY ANN BOWMAN, LC No. 16-065846-DM

Defendant-Appellee.

Before: S ERVITTO , P.J., and M ARKEY and G LEICHER , JJ.

P ER C URIAM

.

Plaintiff appeals by leave grante d the trial court’s order den ying his motion to return the minor children to Michigan and declining to exercise jurisdicti on over an initial child-custody determination pursuant to the Uniform Child-Custody Jurisdictio n and Enforcement Act (UCCJEA), MCL 722.1101 et seq . We remand for the trial court to comply with the requirements set forth in MCL 722.1206(2).

Plaintiff and defendant married in 2009. They had two childre n, born in 2011 and 2013.

Their first child was born in Geo rgia before the parties moved to Michigan in 2012. The parties resided in Michigan until around August 2014 when they moved to Wisconsin. Plaintiff and defendant provided conflicting testimony on how long the partie s remained in Wisconsin. Plaintiff testified that he was laid off from his job at the en d of June 2015, and the parties moved back to Michigan shortly thereaf ter, even though their Wisconsi n lease continued through

October. Plaintiff then obtained a job in Indiana. While he w orked in Indiana, defendant and the children remained in Michigan. On the other hand, defendant te stified that she and the children resided in Wisconsin until the lease expired in October 2015. After the lease expired, defendant and the children lived with plaintiff’s family members in Michi gan for approximately one month before the entire family left to visit defendant’s family in Ge orgia for Thanksgiving. After the holiday, plaintiff returned to Indiana, but defendant and the c hildren remained in Georgia, though defendant had not previously i ntended to stay in Georgia.

On December 11, 2015, defendant filed a complaint regarding cu stody and a complaint for separate maintenance in a Georgia trial court. Defendant a lleged that the Georgia court had jurisdiction over the matter beca use no other state could claim to be the children’s “home state” under the UCCJEA. Defendant requested joint legal and primary physical custody of the children. She alleged that it was in the best interests of the children to reside with her because of-2- the “unstable nature” of plainti ff’s employment. Finally, defe ndant alleged that plaintiff had a history of being verbally and em otionally abusive towards her a nd had engaged in adultery. The Superior Court of Bryan County, Georgia, issued an ex parte ord er granting defendant temporary custody of the children until further order of the court.

Thereafter, on January 8, 2016, plaintiff filed a complaint fo r divorce in Michigan. Plaintiff requested that the child ren be returned to Michigan a nd that he be granted sole legal and physical custody. The trial cour t held an evid entiary hearing to consider whether the children should be returned to Michigan and whether Michigan was the pro per forum to resolve the custody dispute. After receiving testimony from both parties, the trial court concluded that Georgia was the more appropriate forum to exercise jurisdiction in the initial child-custody determination. Plaintiff then filed an application for leave t o appeal, and we granted leave to

determine whether the trial c ourt erred in its application of t he UCCJEA.

We review de novo whether a court has subject-matter jurisdict ion over a particular

matter. Fisher v Belcher , 269 Mich App 247, 252-253; 713 NW2d 6 (2005). “[E]ven if a c ourt may exercise jurisdiction under the UCCJEA, the decision to do so is within the discretion of the trial court, and [will] not be reversed absent an abuse of that discretion.” Cheesman v Williams

, 311 Mich App 147, 150; 874 NW2d 385 (2015) (citation and quotat ion marks omitted; second alteration in original). Finally , we apply a “ ‘clear legal er ror standard . . . where the trial court errs in its choice, interpretat ion, or application of the exist ing law.’ ” Cheesman , 311 Mich App at 151, quoting Foskett v Foskett , 247 Mich App 1, 4-5; 634 NW2d 363 (2001).

The UCCJEA “prescribes the pow ers and duties of [a trial] cour t in a child-custody proceeding involving this state and a proceeding or party outsi de of this state.” Fisher , 269 Mich App at 260. Both Michigan and Georgia had adopted the UCCJEA a t the time the dispute arose.

Atchison v Atchison , 256 Mich App 531, 536; 664 NW2d 249 (2003); Croft v Croft , 298 Ga App 303, 305; 680 SE2d 150 (2009).

The trial court, in concluding that Georgia was the more appro priate forum to exercise jurisdiction in this matter, first looked to MCL 722.1201, whic h governs jurisdiction over initial child-custody determinations. Doing so was erroneous. Before a Michigan court makes an initial custody determination, it must first be determined “whe ther an out-of-state child custody proceeding has already commenced.” Fisher , 269 Mich App at 253-25 4. Because defendant undisputedly filed her complaint in the Georgia court first, a child-custody proceeding had already commenced at the time pl aintiff filed the instant actio n. As a result, the trial court should have first looked to MCL 722.1206, which governs simultaneous c hild-custody proceedings and states, in relevant part, as follows:

(1) Except as otherwise provided in [MCL 722.1204 1 ], a court of this state may not exercise its jurisdiction unde r this article if, at the tim e of the commencement of the proceeding, a child-custody proceeding has been commence d in a court of

1 MCL 722.1204 governs situations where a trial court has tempor ary emergency jurisdiction, and it is not relevant to this appeal.-3- another state having jurisdictio n substantially in conformity w ith 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 [MCL 722.1207].

(2) Except as otherwise provided in [MCL 722.1204], before hear ing a childcustody proceeding, a court of this state shall examine the cou rt documents and other information supplied by th e parties as required by [MCL 7 22.1209]. If the court determines that, at the time of the commencement of the p roceeding, a child-custody proceeding has been commenced in a court in anoth er state having jurisdiction substantially in accordance with this act, the cou rt 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 wi th this act does not determine that the court of this state is a more appropriate fo rum, the court of this state shall dismiss the child-custody proceeding.

Pursuant to MCL 722.1206(1), because a child-custody proceedin g had already commenced in Georgia, the next inquiry is whether Georgia had “ jurisdiction substantially in conformity with” the UCCJEA. Whether a state has jurisdiction to make an initial child-custody determination is governed by MCL 722.1201. See MCL 722.1201(2) (indicating that section 201 of the UCCJEA is the “exclusive jurisdictional basis for ma king a child-custody determination by a court of this state”); Ga Code Ann § 19-9-61 (b) (identical provision to MCL 722.1201(2)). MCL 722.1201 states, in rel evant part, the follo wing:

(1) Except as otherwise provided in [MCL 722.1204], a court of this state has jurisdiction to make an initial child-custody determination onl y in the following

situations:

(a) This state is the home state of the child on the date of th e commencement of the proceeding, or was the home state of the child within 6 mon ths before the commencement of the proceeding and the child is absent from thi s state but a parent or person acting as a pare nt continues to live in this s tate.

(b) A court of another state do es not have jurisdiction under s ubdivision (a), or a court of the home state of the child has declined to exercise j urisdiction on the ground that this state is the more appropriate forum under [MCL 722.1207] or [MCL 722.1208], and the court fi nds both of the following:

( i ) The child and the child’s pare nts, or the child and at least 1 parent or a person acting as a parent, have a signi ficant connection with this sta te other than mere physical presence.

( ii ) Substantial evidence is available in this state concerning th e child’s care, protection, training, and pe rsonal relationships.

“Home state” means the state in which a child lived with a par ent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a childcustody proceeding. MCL 722.1102(g). Georgia was not the chil dren’s “home state,” and the children had not resided in Georgia within six months before co mmencement of this proceeding.-4- See MCL 722.1201(1)(a). Accord ingly, MCL 722.1201(1)(b) govern s whether Georgia could exercise jurisdiction in this matter.

To establish jurisdiction under MCL 722.1201(1)(b), a court of another state may not have jurisdiction under MCL 722.1201(1)(a), that is, the childr en must not have a “home state” elsewhere. The trial court properly determined based on the ev idence presented that the children did not have a home state. Furthermore, although Wisconsin had arguably been the children’s

home state within six months of the commencement of this action , neither of the parties

continued to live in Wisconsin i n order for it to have jurisdic tion pursuant to MCL 722.1201(1)(a). 2

Given that no other state had ju risdiction pursuant to that su bsection, MCL 722.1201(1)(b) directs a court to find whether “[t]he child and the child’s parents, or the child and at least 1 parent or a person acting as a parent, have a si gnificant connection with [the] state other than mere physical presence” and whether “[s]ubstantial evidence is available in [the] state concerning the child’s care, p rotection, training, and personal relationships.” MCL 722.1201(1)(b)( i ) and ( ii ). The parties dispute whether Georgia had jurisdiction over t he matter on this basis. We agree with t he trial court that it did.

The term “significant connection” was discussed in White v Harrison-White , 280 Mich App 383, 394; 760 NW2d 691 (2008). Notably, as plaintiff recog nizes, White concerned MCL 722.1202, which governs the exercise of exclusive, continuing j urisdiction, as opposed to MCL 722.1201, which governs initial child-custody determinations. Although both provisions require a child and at least one parent to have a “significant connecti on” to the state, MCL 722.1201(1)(b)( i ) adds that mere physical presence in the state is not enough. We disagree with plaintiff that White is not controlling here because of this additional statutory l anguage. White provides guidance, as it examined the plain language of the UCC JEA and concluded that a state has jurisdiction over a child-cus tody determination where “the child and at least one parent have an important or meaningful r elationship to the state.” 3 White , 280 Mich App at 390. Thus, in the context of MCL 722.1201(1)(b)( i ), a child and at least one pare nt must have an “important and meaningful relationship to the s tate” that is based on more tha n mere physical presence. See id.

The evidence established that d efendant and the children had a significant connection to Georgia. The parties’ eldest child was born in Georgia, and th e parties lived there for approximately 10 months in the year of his birth. The children and defendant then returned to

2 Interestingly, the trial court maintained jurisdiction over th e parties’ divorce proceeding, despite testimony that plaintiff had not resided in Van Buren C ounty for the required statutory period or, arguably, the State of Michigan for the necessary pe riod. The trial court thus

bifurcated the divorce an d child custody issues.

3 In White , this Court determined that a “significant connection” for pur poses of establishing exclusive, continuing jurisdiction “exists where one parent res ides in the state, maintains a meaningful relationship with the child, and, in maintaining the relationship, exercises parenting

time in the state.” White , 280 Mich App at 394.-5- Georgia in November of 2015, where they remained. The evidence established that defendant was born and raised in Georgia, that defendant’s immediate fami ly lived in Georgia, and that the

children had visited the state with defendant to see defendant’ s family at least once a year before they moved back to Georgia. According to defendant, the visits often lasted a month or more. The children and defendant were also attending church in Georgi a, and the older child was enrolled in preschool. Defendant further testified that she is and has been the children’s primary care-giver. This testimony was sufficient to allow the trial c ourt to find that there was a significant connec tion to Georgia. 4

Additionally, MCL 722.1201(1)(b)( ii ) requires that “[s]ubstantial evidence” be “available in [the] state concerning the child’s care, protection, trainin g, and personal relationships.” Although the trial court failed to address this subsection in i ts opinion, any error in failing to do so was harmless. See MCR 2.613(A). Defendant’s family members lived in Georgia and were presumably available to testify. Evidence of the older child’s schooling would also be available there. Finally, plaintiff makes no legitimate claim as to why testimony from his family could not be received in Georgia via depositions or video, just as defend ant’s testimony for purposes of the hearing was taken by telephone. Therefore, because the childre n and defendant had a significant connection with Georgia other than mere physical presence and s ubstantial evidence regarding the children’s well-being was available in Georgia, the trial c ourt did not err by finding that Georgia could exercise jurisdict ion under the UCCJEA. Moreover , Georgia’s jurisdiction need only have been substantially in conformity with the UCCJEA, not completely such that even i f the compliance were not perfect, compliance was substantial eno ugh to find that the trial court

did not err.

Turning back to MCL 722.1206(1), because Georgia had “jurisdic tion substantially in conformity with” the UCCJEA, the Michigan trial court was not p ermitted to exercise jurisdiction over the matter “ 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 conv enient forum under [MCL 722.1207].” MCL 722.1206(1). There is no record evidence that the Georgia court made a finding pursuant to MCL 722.1207 that Michigan was a more conve nient forum for the childcustody proceeding or that the Georgia court terminated the pro ceeding filed by defendant. Accordingly, it was proper for t he trial court to decline to ex ercise jurisdicti on in this case.

However, the trial court erred by failing to comply with MCL 7 22.1206(2). MCL 722.1206(2) requires the trial court to “stay its proceeding an d communicate with t he court of the other state” if it “determines that, at the time of the commenc ement of the proceeding, a child-

4 We do not dispute that plaintiff’s testimony established that there was also a significant connection to Michigan. However, not only are matters of credi bility left to the finder of fact (See, e.g., People v Passage, 277 Mich App 175, 177; 743 NW2d 746 (2007)), because a child custody proceeding had already been initiated in Georgia, the r elevant initial inquiry for our purposes is whether Georgia had “jurisdiction substantially in conformity with” the UCCJEA pursuant to MCL 722.1206(1).-6- custody proceeding has been commenced in a court in another sta te having jurisdiction substantially in accordance with this act.” The trial court re fused to communicate with the Georgia court regarding jurisdiction, contrary to the UCCJEA. We, therefore, remand for the trial court to comply with the requirement of MCL 722.1206(2) t hat it communicate with the Georgia court. MCL 722.1206(2) further provides that, after communicating with the other court, the Michigan court shall dismiss the child-custody proce eding “[i]f the court of the state having jurisdiction substantially in accordance with this act d oes not determine that the court of this state is a more appropriate forum.” Accordingly, if, afte r communication between the two courts, the Georgia court does not determine that Michigan is a more appropriate forum to resolve the child-custody disput e, the trial court shall dismis s this case. 5

This matter is remanded for further proceedings consistent wit h this opinion. We do not retain jurisdiction.

/s/ Deborah A. Servitto /s/ Jane E. Markey

/s/ Elizabeth L. Gleicher

5 The parties also present ar guments regarding MCL 722.1207 (inc onvenient forum) and MCL 722.1208 (unjustifiable conduct by a party establishing jurisdi ction). We need not address these arguments because remand is necessary for the trial court to co mply with MCL 722.1206 before these issues may be addressed. We note, however, that the tria l court raised the issue of inconvenient forum sua sponte in its written opinion. The tria l court erred by not allowing the parties to submit information regarding the relevant factors as required by MCL 722.1207(2). Additionally, with respect to MCL 722.1208, that provision only allows a trial court “of this state” to decline to exercise ju risdiction if the person invoki ng jurisdiction engaged in unjustifiable conduct. MCL 722.1208(1). The statute does not allow a Michigan court to determine that another state may not exercise jurisdiction beca use of a party’s conduct. The proper forum in which to make s uch a claim is in Georgia.