Safdar v. Aziz
Docket No. 156611
Trial Lawyer’s Takeaway: a circuit court can modify a child custody or spousal support order while the underlying divorce judgment is under appeal.
Under MCR 7.208(A), once a party has appealed an order or judgment to the Michigan Court of Appeals, a lower cannot modify that order or a judgment, with a limited number of exceptions. One of those exceptions, listed in 7.208(A)(4), is when the power to modify the prior order is “otherwise provided by law.” The question in this case was whether MCL 722.27(1), a provision of the Child Custody Act, which gives a circuit court the power to resolve custody disputes, constitutes the power to modify a prior order “as provided by law.”
In a short per curiam opinion, the Court said that it does grant such a power. For that reason, even though an initial divorce judgment was under appeal, the circuit court was permitted to rule on a motion to change the domicile of a minor child established by that judgment.
The Court said a statute satisfies the exception in 7.208(A)(4) whenever “the Legislature has authorized continuing jurisdiction to amend or modify a final judgment.” The Court had previously recognized a similar exception under this provision for the power to modify child and spousal support orders in divorce proceedings in a case called Lemmen v. Lemmen.
Although the Court of Appeals reached its conclusion by reading this statute at issue here in pari materia with the statute in Lemmen, the Court’s opinion said this was unnecessary. Instead, the Court resolved this case by applying the principle that a specific provision governs a general provision. In other words, the general provision (that a court can’t modify an order under appeal) gives way to the specific provision (that a court can always modify a child custody order in the best interests of the child).
Full opinion here.