McKay v. McKay

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Philip McKay v. Korinne McKay

No. 363186

Court of Appeals of Michigan

November 1, 2022

LC No 21-011460-DM

Christopher M. Murray Presiding Judge Kirsten Frank Kelly Thomas C. Cameron Judges

ORDER

Pursuant to MCR 7.205(E)(2), the trial court's August 16, 2022 order is VACATED, and the matter REMANDED for reconsideration of the motion for partial summary disposition. The motion for partial summary disposition challenges whether the trial court has jurisdiction over the custody aspect of the divorce proceeding in light of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. As the trial court recognized, this presents a question of the trial court's subjectmatter jurisdiction. See, e.g. Guardalupe Hernandez v Mayoral-Martinez, 329 Mich.App. 206; 942 N.W.2d 80 (2019); Nash v Salter 280 Mich.App. 104, 108-109; 760 N.W.2d 612 (2008); Jamil v Jahan, 280 Mich.App. 92, 99-100; 760 N.W.2d 266 (2008). The trial court declined, however, to address the merits of that question, deeming it waived because defendant purportedly failed to raise it in her first responsive pleading and had otherwise participated in the action. As is very well-established, a court's subject-matter jurisdiction "cannot be stipulated by the parties or waived by a party's failure to object." LME v ARS, 261 Mich.App. 273, 278; 680 N.W.2d 902 (2004). Nor can a party be estopped from challenging subject-matter jurisdiction. In re Contempt of Dorsey, 306 Mich.App. 571, 581; 858 N.W.2d 84 (2014), vacated in part on other grounds 500 Mich. 920 (2016). On remand, the trial court must address the merits of the motion and determine whether it has jurisdiction over the custody aspect of the case. See Ramamoorthi v Ramamoorthi, 323 Mich.App 334-335; 918 N.W.2d 191 (2018) (even if a trial court lacks jurisdiction to make a custody determination under the UCCEJA, the court...