in Re Guardianship of bibi/wallace Minors

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, FOR PUBLICATION

May 3, 2016

Petitioner-Appellant, 9:05 a.m.

v No. 327159

Wayne Circuit Court

LORRAINE WALLACE, LC No. 14-012529-AV

Respondent-Appellee.

Before: JANSEN, P.J., and SERVITTO and M. J. KELLY, JJ.

PER CURIAM.

In this dispute over guardianship, petitioner, Nadima Bibi, appeals by leave granted1 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 preclusion to Bibi’s petition and the circuit court erred when it

affirmed the probate court’s order. Accordingly, we reverse and remand for further proceedings

in the probate court.

I. BASIC FACTS

This case arises out of a guardianship dispute between the minor wards’ grandmothers,

which arose following the entry of a consent judgment in an earlier Canadian proceeding.

According to the parties, the wards’ parents have a long history 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 Children’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In re Guardianship of Bibi/Wallace Minors, unpublished order of the Court of Appeals, entered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).

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including Bibi, agreed to the consent judgment. Under the terms of the consent judgment, the

court “placed” the wards under the joint care and custody of Wallace 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 conditions. The following spring, the wards’ father died. Around

that same time, their mother was incarcerated in a Florida county jail.

Bibi subsequently petitioned the probate court and asked it to appoint her as the wards’

full guardian. In a cross-petition, Wallace also asked to be appointed the wards’ guardian. The

probate court determined that Bibi’s petitions were barred by collateral estoppel and res judicata

arising from the Canadian consent judgment. It then granted Wallace’s request.

Bibi appealed the probate court’s decision in the circuit court and the circuit court

affirmed. It determined that the probate court properly applied collateral estoppel to bar Bibi’s

petition. In the alternative, it agreed with Wallace’s argument that Bibi failed to establish

grounds for revisiting an existing custody order. Specifically, it stated that Bibi failed to

establish proper cause or a change 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 the probate and circuit courts erred in applying res judicata and

estoppel and erred in applying the relevant law. This Court reviews de novo whether the trial

court properly interpreted and applied the relevant statutes. Kaeb v Kaeb, 309 Mich App 556,

564; 873 NW2d 319 (2015). This Court also reviews de novo whether the trial court properly

applied legal doctrines such as res judicata and collateral estoppel. Estes v Titus, 481 Mich 573,

578-579; 751 NW2d 493 (2008). We likewise review de novo issues concerning choice and

conflicts of law. Talmer Bank & Trust v Parikh, 304 Mich App 373, 383; 848 NW2d 408

(2014), vacated in part on other grounds 497 Mich 857 (2014).

This Court, however, reviews a probate court’s dispositional rulings for an abuse of

discretion and the factual findings underlying its decision for clear error. In re Lundy Estate, 291

Mich App 347, 352; 804 NW2d 773 (2011). A probate court “abuses its discretion when it

chooses an outcome outside the range of reasonable and principled 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 reviewing court is left with a definite 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 Courts 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 contract that becomes a court

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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 contract 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 resort 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 jurisdiction’s application of preclusion

principles. See id. at 398-401. Both collateral estoppel and res judicata are applied 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 whether the Canadian consent

judgment should be given preclusive effect. See Jones, 202 Mich App at 398.

C. UNIFORM CHILD-CUSTODY JURISDICTION AND ENFORCEMENT ACT

As a preliminary matter, we shall address the parties’ arguments concerning the

application of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL

722.1101 et seq. Under the UCCJEA, a guardianship proceeding qualifies as a “child-custody

proceeding,” MCL 722.1102(d), and the phrase “child-custody determination” is broadly defined

as “a judgment, decree, or other court order providing for legal 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 further defines “physical custody” as “the

physical care and supervision of a child.” MCL 722.1102(n). Thus, despite the fact that the

consent judgment established a temporary placement for the wards, it nevertheless qualifies as a

“child-custody determination” regarding “physical custody” under the UCCJEA.

Because the consent judgment qualified as a child-custody determination, after the

probate court became aware of the Canadian proceeding, before it could exercise its jurisdiction

to issue a guardianship decision, it had to confer with the Ontario court regarding jurisdiction.

See Fisher v Belcher, 269 Mich App 247, 255; 713 NW2d 6 (2005). After conferring with 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 [foreign] court . . . because a court of

this state is a more convenient forum[.]” MCL 722.1206(1); see Fisher, 269 Mich App at 255.

At the July 2014 petition hearing, the probate court made a record of the fact that it had

conferred with the Ontario court and received “confirmation” that 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 wards all now reside in Michigan,

this state was clearly the more convenient forum. Consequently, after the Ontario court indicated

that it had “nothing pending” in the prior action, and that it would terminate its jurisdiction as

soon as the probate court assumed jurisdiction, the UCCJEA no longer applied.

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D. COLLATERAL ESTOPPEL

Bibi argues that the probate court erred when it applied collateral estoppel to bar her

petition. “Collateral estoppel is a flexible rule intended to relieve parties of multiple litigation,

conserve judicial resources, and encourage reliance on adjudication.” 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 apply 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 NW2d 528 (1994), citing Van Pembrook v Zero Mfg Co, 146 Mich App

87, 103; 380 NW2d 60 (1985). There is no indication that the factual issues involved in the prior

proceeding were actually tried or conceded by entry of the consent judgment. On the contrary,

the consent judgment was merely an agreement between the parties regarding a temporary

placement for the wards under the supervision of Children’s Aid.

Additionally, the consent judgment was not a final decision on the merits. By its own

terms, the consent judgment was a temporary resolution of the wards’ placement “for a period of

six months,” subject to ongoing review, 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 preclude 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 under Canadian law to protect the

wards from harm, with due consideration of the children’s best interests; it did not involve a

determination of who would be the best guardian for the children under Michigan’s Estates and

Protected Individuals Code (EPIC), MCL 700.1101 et seq. The issues involved in this petition

are not identical to those involved in the Canadian proceeding and, for that reason, the probate

court erred when it applied collateral estoppel to bar Bibi’s petition.

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 on adjudication, that is, 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 judicata to preclude a claim, three

elements must be satisfied: “(1) the prior action was decided on the merits, (2) both actions

involve the same parties or their privies, and (3) the matter in 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 applied collateral estoppel and res

judicata, we do not consider Bibi’s arguments that the probate court also erred by failing to hold

an evidentiary hearing or by failing to state sufficient factual findings to support its decision.

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“[T]he burden of proving the applicability of . . . res judicata 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 issue here was not a final

decision for purposes of res judicata. “To be accorded the conclusive effect of res judicata, the

judgment must ordinarily be a firm and stable one, the ‘last word’ 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 relief “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), generally 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 agreement between the parties regarding 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 could be characterized as a final decision, “[r]es judicata

does not bar a subsequent action between the same parties or their 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 resolve 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, during which there were intervening changes of both fact and law.

During that time, the wards’ father died; their mother was imprisoned; Children’s Aid’s authority

to supervise the wards expired; and, the proper venue for a guardianship or custody changed

from Ontario to Michigan. Moreover, according to Bibi’s allegations, 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 claimed 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 difficulty 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, Michigan 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 minor children, our probate courts are

charged to “appoint as guardian a person whose appointment serves the minor’s welfare,” even if

that person is a “professional guardian.” MCL 700.5212. But instead of basing its guardianship

decision on what would serve the wards’ welfare, the probate court relied on its erroneous

application of preclusion principles, reasoning that, because Bibi’s petitions were barred, it could

simply grant Wallace’s competing petitions. In doing so, the probate court abdicated its statutory

authority to decide the issue on the merits. As such, it abused its discretion. See Loutts v Loutts,

298 Mich App 21, 24; 826 NW2d 152 (2012). In situations such as this, where our courts are

entrusted with safeguarding the interests of minor children, res judicata must be applied with

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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, not lighten the loads of the state

court by precluding suits whenever possible.”).

F. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES

We next consider the alternate grounds for affirming adopted by the circuit court. See

Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994). Bibi argues that 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 for affirming the probate court’s

guardianship decision. Contrary to Wallace’s arguments on appeal, MCL 722.27(1)(c) does not

apply to guardianship decisions by the probate court; it applies 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 custody actions). The probate court

generally has exclusive jurisdiction over a proceeding that concerns a guardianship. MCL

700.1302(c). Because there was no custody order from the circuit court involving the wards, the

probate court’s guardianship 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 to a different trial judge is

whether the appearance of justice will be better served if another judge presides over the case.”

Bayati v Bayati, 264 Mich App 595, 602; 691 NW2d 812 (2004). In deciding whether to remand

to a different judge, this Court considers whether “the original 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 suggest a bias against her:

Just because she [Bibi] has a lot of money and has the ability to access the

Courts, doesn’t mean that she gets to constantly re-litigate the same issues over

and over again. And that’s the way I see it, is that this [action] is a re-litigation of

things that took place in 2012 in the Canadian Court system. And I don’t see

anything with respect to [] Wallace’s care of these children that should cause me

to open up this can of worms on this competing guardianship matter. . . .

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 record does not show that the

probate judge would have difficulty in putting aside her previously expressed views or findings.

Id. Reassignment is also not necessary to preserve the appearance of justice. Even though the

probate court’s application of preclusion principles was erroneous, that fact does not demonstrate

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bias or prejudice that would tend to give the appearance of impropriety. 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 consideration 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

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