Lorenz v. Lorenz

1

CORNELIA S. LORENZ, Petitioner-Appellee, v. BENJAMIN LORENZ, Respondent-Appellant.

Nos. 359832, 361127

Court of Appeals of Michigan

March 9, 2023

UNPUBLISHED

Wayne Circuit Court LC Nos. 21-110748-DC; 21-105412-DC

Before: CAVANAGH, P.J., and SERVITTO and GARRETT, JJ.

PER CURIAM.

These consolidated appeals challenge the trial court's orders in a cross-continent childcustody dispute between respondent-father, Benjamin Lorenz, and petitioner-mother Cornelia S. Lorenz. Acting under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., the trial court enforced a child-custody order from a German court awarding custody of the parties' two children to Cornelia. Benjamin now appeals raising two interrelated arguments about notice: (1) he was deprived of due process when he was not given proper notice of the German custody proceedings, and (2) the trial court erred by finding that he failed to prove a lack-of-notice defense to registration of the German custody order. Benjamin also argues that the trial court reversibly erred by confirming registration of the German custody order because the foreign order did not consider the children's best interests and thus was not in substantial conformity with Michigan law.

Benjamin has not met his burden to establish that he lacked proper notice of the German proceedings, so we cannot conclude that the trial court deprived him of due process of law or erred by registering and enforcing the German custody order. The trial court also did not err by confirming registration of the German custody order because the German court was not required to consider Michigan's best-interest factors under the UCCJEA. For these reasons, we affirm.

I. BACKGROUND

The facts leading to this child-custody dispute are largely undisputed. The parties were married in 2000, and they have two children, one born in 2009 and the other in 2011. The family lived in Michigan until January 2014, when they moved to Germany. The parties agreed that Benjamin could take the children to visit relatives in the United States from July 21, 2020 to September 5, 2020. But Benjamin failed to return to Germany with the children, prompting this litigation.

Benjamin filed a complaint in Wayne Circuit Court for an initial custody determination under the UCCJEA, seeking sole legal and physical custody of the children and requesting entry of an order prohibiting the children's removal from Michigan. The trial court^[1] dismissed the complaint for lack of jurisdiction because Michigan was not the children's "home state" under the UCCJEA.^[2] Benjamin appealed, and we affirmed the dismissal. Lorenz v Lorenz, unpublished per curiam opinion of the Court of Appeals, issued May 20, 2021 (Docket No. 355973), p 1.

Separately, Cornelia initiated proceedings in United States federal court^[3] and German district court. In December 2020, a German district court awarded temporary custody of the parties' minor children to Cornelia. The German court's order explained that Benjamin kept the parties' children in the United States contrary to the parties' agreement and refused to return the children to Cornelia. The German court found that Benjamin "obtained by fraud" Cornelia's consent to Benjamin taking the children to Michigan during the summer of 2020. The German court also found that Benjamin's conduct was a "serious breach of trust," that Cornelia was "the children's main caregiver," and that Germany was the habitual environment of both children. The court's order noted that Benjamin "could not be formally summoned to the court hearing on 10/26/2020."

In June 2021, Cornelia petitioned in Wayne Circuit Court for registration of the German court's child-custody order under the UCCJEA. Soon after, the trial court entered an order registering the German court's child-custody determination in Michigan. Benjamin filed a written objection to the validity of the registered child-custody determination. On the form contesting the registration, Benjamin checked the box raising the following defense:

The respondent or person contesting registration was entitled to notice in the proceeding before the court that issued the custody determination for which registration is sought, but notice of those proceedings was not given in accordance with the standards of [MCL 722.1108] of the UCCJEA.

The trial court held a hearing on Benjamin's objection, and the parties' attorneys vigorously disputed whether Benjamin received proper notice of the German proceedings. Seeking clarity, the trial court took testimony from Benjamin on this issue. Benjamin testified that Cornelia emailed him in October 2020 to inform him of a custody hearing in Germany the following week. Benjamin also testified that he returned home from visiting relatives and received notice of a hearing sent by regular mail on a Saturday night, which informed him of an upcoming hearing in Germany on Monday. Benjamin stated that it would have been "physically impossible" to get there in time. After additional argument, the trial court denied Benjamin's objection, finding that "by his own admission, he clearly received notice and he was served." Benjamin requested an opportunity to amend his objection to registration to "address the issue of whether the German laws were in substantial conformity with Michigan law pursuant to the UCCJEA." The trial court stated that Benjamin could file a new motion to raise the alleged jurisdictional defect.

Benjamin never filed an amended objection. Instead, before the trial court entered its order denying his objection, Benjamin moved for reconsideration. He argued that the trial court should reconsider its decision declining to determine "whether Germany's laws are in substantial conformity with Michigan's child custody laws." He also alleged that he lacked a "meaningful opportunity" to appear for the German proceedings, and that he "received late notice for [an] inperson hearing only, without any permission to appear remotely, and could not travel due to COVID."

In October 2021, the trial court confirmed registration of the German custody order. The court found that Benjamin "failed to present sufficient evidence to establish one of the defenses to the validity of registration under MCL 722.1304(4)." Later, the court denied Benjamin's motion for reconsideration. The court noted that Benjamin filed his motion before the court even entered its order confirming the registered German custody order, and thus the motion was not ripe for decision. The court also found that Benjamin offered no legal basis for seeking reconsideration.

In a separate action in Wayne Circuit Court, Cornelia filed an emergency verified petition for enforcement of the German child-custody determination. In December 2021, the trial court found that Cornelia met the requirements for enforcement of a foreign custody determination and issued an order requiring Benjamin to appear in court with the children and their passports the next day. Benjamin complied with this enforcement order, and the children were returned to Germany.

These appeals followed. In Docket No. 359832, Benjamin appeals as of right the trial court's December 2021 order enforcing the German custody order. In Docket No. 361127, Benjamin appeals by delayed leave granted^[4] the trial court's October 2021 order confirming registration of the German custody order.

II. PRESERVATION AND STANDARD OF REVIEW

In Docket No. 359832, Benjamin argues that he was deprived of due process when he did not receive notice of the German proceedings. Whether a party was denied due process of law presents a question of constitutional law, which we generally review de novo. Bonner v City of Brighton, 495 Mich. 209, 221; 848 N.W.2d 380 (2014). But Benjamin failed to preserve any due-process argument below. In order to preserve an issue for appeal, a party must raise the issue in the trial court. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227; 964 N.W.2d 809 (2020). Benjamin contends that he preserved his due-process challenge in his motion for reconsideration. This assertion is erroneous for several reasons. First, Benjamin did not file a motion for reconsideration in the lower court file associated with Docket No. 359832. Second, his motion for reconsideration-filed in the case associated with Docket No. 361127-does not raise a due-process argument. And third, even if it did, an issue first raised in a motion for reconsideration is not properly preserved for appeal. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich.App. 513, 519; 773 N.W.2d 758 (2009). Thus, Benjamin's due-process argument is unpreserved, and we review this unpreserved issue for plain error affecting substantial rights. Whitmer v Bd of State Canvassers, 337 Mich.App. 396, 412; 976 N.W.2d 75 (2021).

In Docket No. 361127, Benjamin contends that the trial court erred by confirming registration of the German custody order because he proved a defense to registration under MCL 722.1304(4)(c) and because the German court's order was not in substantial conformity with Michigan child-custody law. While we have found no published caselaw addressing the standard of review in these particular circumstances, this Court applied the abuse-of-discretion standard in a published decision involving a trial court's order vacating its registration of a child-custody determination under the UCCJEA. See Nadimpali v Byrraju, 326 Mich.App. 73, 91; 931 N.W.2d 38 (2018). Thus, we conclude that the abuse-of-discretion standard of review applies to a trial court's decision confirming registration of a child-custody order under the UCCJEA. "Generally, if a trial court's decision results in an outcome within a range of principled outcomes, the court has not abused...