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### STATE OF MICHIGAN

COURT OF APPEALS

In re GUARDIANSHIP OF ALEXANDER VICTOR BIBI and NADIA FRANCIS WALLACE, also known as NADIA BIBI, MINORS.

NADIMA BIBI,

Petitioner-Appellant, FOR PUBLICATION May 3, 2016 9:05 a.m.

v No. 327159 Wayne Circuit Court LORRAINE WALLACE, LC No. 14-012529-AV

Respondent-Appellee.

Before: J ANSEN , P.J., and S ERVITTO and M. J. K ELLY , JJ.

P ER C URIAM

. In this dispute over guardianshi p, petitioner, N adima Bibi, ap peals by leave granted 1 the circuit court’s appellate opinion and order, which affirmed the probate court’s guardianship decision in favor of respondent, Lorraine Wallace. We conclude that the probate court erred when it applied principles of pr eclusion to Bibi’s petition and the circuit court erred when it affirmed the probate court’s order. Accordingly, we reverse an d remand for further proceedings in the probate court.

I. BASIC FACTS

This case arises out of a guardianship dispute between the min or wards’ grandmothers, which arose following the entry of a consent judgment in an ear lier Canadian proceeding. According to the parties, the wards’ parents have a long histor y of substance abuse, transient living, criminal activity, and incarceration for drug offenses. The Canadian proceeding was a “child protection proceeding” instituted by the Windsor-Essex C hildren’s Aid Society (Children’s Aid) under Ontario’s Child and Family Services Act. The parties to that proceeding,

1 In re Guardianship of Bibi/Wallace Minors , unpublished order of the Court of Appeals, entered September 30, 2015 (Docket No. 327159).-2- including Bibi, agreed to the consent judgment. Under the term s of the consent judgment, the court “placed” the wards under th e joint care and custody of Wa llace and the wards’ nonparty maternal aunt, “subject to the supervision of [Children’s Aid] for a period of six months,” and subject to further terms and c onditions. The following spring, the wards’ father died. Around that same time, their mother was incarcerated in a Florida coun ty jail.

Bibi subsequently petitioned th e probate court and asked it to appoint her as the wards’ full guardian. In a cross-petition, Wallace also asked to be a ppointed the wards’ guardian. The probate court determined that Bibi’s petitions were barred by c ollateral estoppel and res judicata arising from the Canadian consen t judgment. It then granted Wa llace’s request.

Bibi appealed the probate court’s decision in the circuit cour t and the circuit court affirmed. It determined that the probate court properly applie d collateral estoppel to bar Bibi’s petition. In the alternative, it agreed with Wallace’s argumen t that Bibi failed to establish grounds for revisiting an existing custody order. Specifically , it stated that Bibi failed to establish proper cause or a chang e of circumstances sufficient to justify “reopening the guardianship decision of the Ontario Court.”

Bibi now appeals in this Court.

II. ANALYSIS

A. STANDARDS OF REVIEW

Bibi argues on appeal that th e probate and circuit courts erre d in applying res judicata and estoppel and erred in applying th e relevant law. This Court re views de novo whether the trial court properly interpreted and ap plied the relevant statutes. Kaeb v Kaeb , 309 Mich App 556, 564; 873 NW2d 319 (2015). This Court also reviews de novo whet her the trial court properly applied legal doctrines such as res judicata and collateral est oppel. Estes v Titus , 481 Mich 573, 578-579; 751 NW2d 493 (2008). We likewise review de novo issue s concerning choice and conflicts of law. Talmer Bank & Trust v Parikh , 304 Mich App 373, 383; 848 NW2d 408 (2014), vacated in part on ot her grounds 497 Mich 857 (2014).

This Court, however, reviews a probate court’s d ispositional r ulings for an abuse of discretion and the f actual findings underlyi ng its decision for clear error. In re Lundy Estate , 291 Mich App 347, 352; 804 NW2d 773 (2011). A probate court “abuse s its discretion when it chooses an outcome outside the range of reasonable and principl ed outcomes.” In re Temple Marital Trust , 278 Mich App 122, 128; 748 NW2d 265 (2008). A probate court’ s “finding is clearly erroneous when a reviewin g court is left with a definit e and firm conviction that a mistake has been made, even if there is evidence to support the finding.” In re Estate of Bennett
, 255 Mich App 545, 549; 662 NW2d 772 (2003).

B. CHOICE OF LAW

We must first determine whether Michigan or Canadian law governs the preclusive effect of the Canadian consent judgment. As a matter of comity, our C ourts have recognized the validity of judgments from foreign nations. See Dart v Dart , 460 Mich 573; 597 NW2d 82 (1999). Likewise, “a consent judgment is a settlement or a con tract that becomes a court-3- judgment when the judge sanctions it, Acorn Investment Co v Mich Basic Prop Ins Ass’n , 495 Mich 338, 354; 852 NW2d 22 (2014) (quotation marks and citation omitted), and, subject to exceptions, “interpretation of c ontract provisions is governed by the law of the state in which the contract was entered,” Jones v State Farm Mut Auto Ins Co , 202 Mich App 393, 397; 509 NW2d 829 (1993), mod on other grounds by Patterson v Kleiman , 447 Mich 429, 433 n 3; 526 NW2d 879 (1994). One exception is that, “[i]f the court of last res ort in the foreign [jurisdiction] has not declared the applicable foreign law with absolute certainty , then Michigan law controls an action instituted in a Michigan forum.” Jones , 202 Mich App at 398 (quotation marks and citations omitted). This exception applies to a foreign jurisd iction’s application of preclusion principles. See id. at 398-401. Both collateral est oppel and res judicata are appl ied in a flexible, discretionary manner under Canadian law. See Penner v Niagara Regional Police Servs Bd

, 2013 SCC 19 (Can Sup Ct, 2013); see also R v Mahalingan , 2008 SCC 63, 109-110 ( Can Sup Ct, 2008). Therefore, we shall apply Michigan law to determine whe ther the Canadian consent judgment should be given preclusive effect. See Jones , 202 Mich App at 398.

C. UNIFORM CHILD-CUSTODY JURIS DICTION AND ENFORCEMENT ACT

As a preliminary matter, we shall address the parties’ argumen ts concerning the application of the Uniform Child-Custody Jurisdiction and Enfor cement Act (UCCJEA), MCL 722.1101 et seq. Under the UCCJEA, a guardianshi p proceeding qualifies as a “chi ld-custody proceeding,” MCL 722.1102(d), and the phrase “child-custody det ermination” is broadly defined as “a judgment, decree, or other court order providing for lega l custody, physical custody, or parenting time with respect to a child,” including “a permanent , temporary, initial, and modification order,” MCL 722.1102(c) . The UCCJEA f urther defin es “physical custody” as “the physical care and supervision of a child.” MCL 722.1102(n). T hus, despite the fact that the consent judgment established a te mporary placement for the ward s, it nevertheless qualifies as a “child-custody determination” r egarding “physical custody” unde r the UCCJEA.

Because the consent judgment qualified as a child-custody dete rmination, after the probate court became aware of the Canadian proceeding, before i t could exercise its jurisdiction to issue a guardianship decision, it had to confer with the Ont ario court regardi ng jurisdiction. See Fisher v Belcher , 269 Mich App 247, 255; 713 NW2d 6 (2005). After conferring w ith the Ontario court, the probate court was permitted to exercise its jurisdiction under the UCCJEA if the prior “proceeding [was] terminated or [] stayed by the [for eign] court . . . because a court of this state is a more convenien t forum[.]” MCL 722.1206(1); see Fisher , 269 Mich App at 255.

At the July 2014 petition hearing, the probate court made a re cord of the fact that it had conferred with the Ontario court and received “confirmation” th at there was “nothing pending over in the [Ontario c]ourt,” and that the Ontario court would accordingly terminate its jurisdiction over the wards. Because Bibi, Wallace, and the wa rds all now reside in Michigan, this state was clearly the more convenient forum. Consequently , after the Ontari o court indicated that it had “nothing pending” in the prior action, and that it would terminate its jurisdiction as soon as the probate court assume d jurisdiction, the UCCJEA no l onger applied.-4- D. COLLATERAL ESTOPPEL

Bibi argues that the probate court erred when it applied colla teral estoppel to bar her petition. “Collateral estoppel is a flexible rule intended to relieve parties of multiple litigation, conserve judicial resources, a nd encourage reliance on adjudica tion.” Rental Properties Owners Ass’n of Kent Co v Kent Co Treasurer , 308 Mich App 498, 529; 866 NW2d 817 (2014). “The doctrine of collateral estoppel must be applied so as to strike a balance between the need to eliminate repetitious and needless litigation and the interest in affording litigants a full and fair adjudication of the issues involved in their claims.” Storey v Meijer, Inc , 431 Mich 368, 372; 429 NW2d 169 (1988). However, collateral estoppel “does not ap ply to consent judgments where factual issues are neither tried nor conceded.” Smit v State Farm Mut Auto Ins Co , 207 Mich App 674, 682; 525 NW 2d 528 (1994), citing Van Pembrook v Zero Mfg Co , 146 Mich App 87, 103; 380 NW2d 60 (1985). There is no indication that the f actual issues involved in the prior proceeding were actually tried or conceded by entry of the cons ent judgment. On the contrary, the consent judgment was merely an agreement between the partie s regarding a temporary placement for the wards under the supervision of Children’s Aid

. Additionally, the consent judgment was not a final decision onthe merits. By its own terms, the consent judgment was a temporary resolution of the w ards’ placement “for a period of six months,” subject to ongoing re view, not a final, conclusive resolution of the child protection proceedings. The issues involved in the prior proceeding also differ from those at issue here. For collateral estoppel to precl ude relitigation of an issue, “ the ultimate issue to be concluded must be the same as that involved in the first action.” Rental Properties , 308 Mich App at 529. “The issues must be identical, and not merely similar.” Id. In the Canadian proceeding, the ultimate issue was what steps were necessary and appropriate un der Canadian law to protect the wards from harm, with due consider ation of the children’s best interests; it did not involve a determination of who would be the best guardian for the childre n under Michigan’s Estates and Protected Individuals C ode (EPIC), MCL 700.1101 et seq. The issues involved in this petition are not identical to those invol ved in the Canadian proceeding and, for that reason, the probate court erred when it applied colla teral estoppel to bar Bibi’s p etition.

E. RES JUDICATA

The probate court similarly erred when it applied res judicata to bar Bibi’s petition. 2 “The doctrine of res judicata is intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and encourage reliance o n adjudication, that i s, to foster the finality of litigation.” Bryan v JPMorgan Chase Bank , 304 Mich App 708, 715; 848 NW2d 482 (2014) (quotation marks and citation omitted). For res judicat a to preclude a claim, three elements must be satisfied: “(1) the prior action was decided o n the merits, (2) both actions involve the same parties or their privies, and (3) the matter i n the second case was, or could have been, resolved in the first.” Adair v Michigan , 470 Mich 105, 121; 680 NW2d 386 (2004).

2 Because we conclude that the probate court erred when it appli ed collateral estoppel and res judicata, we do not consider Bib i’s arguments that the probate court also erred by failing to hold an evidentiary hearing or by failing to state sufficient factua l findings to support its decision.-5- “[T]he burden of proving the appl icability of . . . res judicat a is on the party asserting it.” Baraga Co v State Tax Comm , 466 Mich 264, 269; 645 NW2d 13 (2002).

Although “[r]es judicata applies to consent judgments,” Ditmore v Michalik , 244 Mich App 569, 576; 625 NW2d 462 (2001), the consent judgment at issu e here was not a final decision for purposes of res judicata. “To be accorded the con clusive effect of res judicata, the judgment must ordinarily be a firm and stable one, the ‘last wo rd’ of the rendering court[.]” Kosiel v Arrow Liquors Corp , 446 Mich 374, 381; 521 NW2d 531 (1994) (quotation marks and citation omitted). Thus, neither orders granting temporary rel ief “until [] further order” of the court, id. , nor interlocutory orders, Indiana Ins Co v Auto-Owners Ins Co , 260 Mich App 662, 671 n 8; 680 NW2d 466 (2004), generall y carry preclusive effect under res judicata. The consent judgment was clearly not intended to be the “last word” of the Canadian court with regard to the wards. It was, rather, an agreem ent between the parties regard ing a temporary placement. Indeed, it ordered Wallace and the maternal aunt to maintain a certain residence until “further Order of the Court.”

Even if the consent judgment coul d be characterized as a final decision, “[r]es judicata does not bar a subsequent action between the same parties or th eir privies when the facts have changed or new facts have developed,” Bennett v Mackinac Bridge Auth (On Remand) , 289 Mich App 616, 636 n 10; 808 NW2d 471 (2010), or where there has been an intervening change of law that “alters the legal principles on which the court will resol ve the subsequent case,” Ditmore
, 244 Mich App at 582. More than a year passed between the entry of the consent judgment and the probate court’s decision, durin g which there were interveni ng changes of both fact and law. During that time, the wards’ fath er died; their mother was impr isoned; Children’s Aid’s authority to supervise the wards expired; and, the proper venue for a gua rdianship or custody changed from Ontario to Michigan. Moreover, according to Bibi’s allega tions, which Wallace did not contest in the probate court, numerous other material facts had changed: the maternal aunt no longer lived with Wallace to provide joint care and custody for the wards, the relationship between Bibi and Wallace deteriorated significantly—Bibi claime d that Wallace asked her for compensation in exchange for allowing her to visit the children and then ultimately denied her access to them—Wallace became dependent on the aid of others to provide proper care and custody for the wards, Wallace began to permit her autistic son to babysit the wards, Wallace admitted in written correspondence that she was having difficul ty caring for the wards, and, despite the mother’s addiction issues, Wallace permitted her to live with and care for the wards. Finally, because the wards began to reside in Wayne County, Mic higan law eventually displaced Ontario law.

Given the changed circumstances, it was error for the probate court to apply res judicata to bar Bibi’s petitions. In guardianship matters involving min or children, our probate courts are charged to “appoint as guardian a person whose appointment serv es the minor’s welfare,” even if that person is a “professional guardian.” MCL 700.5212. But i nstead of basing its guardianship decision on what would serve the wards’ welfare, the probate co urt relied on its erroneous application of preclusion prin ciples, reasoning that, because B ibi’s petitions wer e barred, it could simply grant Wallace’s compe ting petitions. In doing so, the p robate court abdica ted its statutory authority to decide the issue on the merits. As such, it abuse d its discretion. See Loutts v Loutts
, 298 Mich App 21, 24; 826 NW2d 152 (2012). In situations such a s this, where our courts are entrusted with safeguarding the interests of minor children, re s judicata must be applied with-6- great care. See Pierson Sand & Gravel, Inc v Keeler Brass Co , 460 Mich 372, 383; 596 NW2d 153 (1999) (“The goal of res judicata is to promote fairness, n ot lighten the loads of the state court by precluding suits w henever possible.”).

F. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES

We next consider the alternate grounds for affirming adopted b y the circuit court. See Middlebrooks v Wayne Co , 446 Mich 151, 166 n 41; 521 NW2d 774 (1994). Bibi argues tha t the circuit court erred by concluding that her purported failure to establish proper cause or changed circumstances under the Child Custody Act was a valid ground fo r affirming the probate court’s guardianship decision. Contrary to Wallace’s arguments on appe al, MCL 722.27(1)(c) does not apply to guardianship decisions by the probate court; it applie s to custody actions, orders, and judgments in “the circuit court. ” MCL 722.27(1); see also MCL 722.26(1) (stating that the act applies to “circuit court child custody disputes and actions”); MCL 722.26b(1) and (5) (granting guardians standing to bring custody actions and providing that the probate judge who appointed the guardian should act as the circuit judge for such child cus tody actions). The probate court generally has exclusive jurisdiction over a proceeding that con cerns a guardianship. MCL 700.1302(c). Because there was no custody order from the circu it court involving the wards, the probate court’s guard ianship order neither could nor did modify “an order or judgment of the circuit court[.]” Consequently , MCL 722.27(1)(c) did not apply and the circuit court erred when it determined otherwise.

G. REASSIGNMENT ON REMAND

Bibi argues that the probate judge made several comments that warrant reassignment on remand. “The general concern when deciding whether to remand t o a different trial judge is whether the appearance of justice will be better served if anot her judge presides over the case.” Bayati v Bayati , 264 Mich App 595, 602; 691 NW2d 812 (2004). In deciding whet her to remand to a different judge, this Court considers whether “the origina l judge would have difficulty in putting aside previously expressed views or findings,” whether “reassignment is advisable to preserve the appearance of justice,” and whether “reassignment will not entail excessive waste or duplication.” Id. at 603.

Bibi contends that the probate judge made comments that sugges t a bias against her:

Just because she [Bibi] has a lot of money and has the abilityto access the Courts, doesn’t mean that she gets to constantly re-litigate th e same issues over and over again. And that’s the way I see it, is that this [act ion] is a re-litigation of things that took place in 2012 in the Canadian Court system. A nd I don’t see anything with respect to [] Wallace’s care of these children th at should cause me to open up this can of worms on this competing guardianship mat ter. . . .

We agree that the probate judge’s comments about Bibi’s wealth were inappropriate, but we do not agree that the comments warrant reassignment. The re cord does not show that the probate judge would have difficu lty in putting aside her previo usly expressed views or findings. Id. Reassignment is also not necessary to preserve the appearance of justice. Even though the probate court’s application of p reclusion principles was errone ous, that fact does not demonstrate-7- bias or prejudice that would tend to give the appearance of imp ropriety. See In re Susser Estate
, 254 Mich App 232, 237; 657 NW2d 147 (2002).

III. CONCLUSION

We reverse the decisions of the circuit and probate courts and remand this matter to the probate court for considerati on of the petitions on the merits.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ Deborah A. Servitto /s/ Michael J. Kelly