             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


    REBEKAH ANN KORTMAN,                                              UNPUBLISHED
                                                                      February 13, 2020
                 Plaintiff-Appellant,

    v                                                                 Nos. 349270; 349632
                                                                      Newaygo Circuit Court
    PAUL EVERT KORTMAN,                                               LC No. 19-056348-DM

                 Defendant-Appellee.


Before: SAWYER, P.J., and MARKEY and STEPHENS, JJ.

PER CURIAM.

        In these consolidated appeals, plaintiff, Rebekah Ann Kortman, appeals as of right the trial
orders concluding that Mexico had jurisdiction over the parties’ divorce proceedings and
dismissing plaintiff’s divorce complaint that was filed in Michigan. On appeal, plaintiff argues
that the trial court erred in finding that Mexico had subject-matter jurisdiction over the parties’
divorce pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA).1
However, because the children had been living in Mexico for six consecutive months before
defendant, Paul Evert Kortman, filed his divorce compliant in Mexico and divorce proceedings
were initiated there first, we believe that the trial court properly determined that Mexico had
jurisdiction in this case.

                                        I. BACKGROUND

       This case arises out of divorce proceedings involving a family which had traveled outside
of the United States beginning in March 2014. The parents described themselves as “location
independent” in a blog which chronicled their travels. The parties married in Grand Rapids,
Michigan, on October 24, 2003. The couple had four children during the marriage. The parties
and the children are all United States citizens. They lived in Newaygo until March 2014, when
the parties decided to travel. Between March and October 2014, the family visited several
countries, including the Philippines, Thailand, Malaysia, Singapore, South Africa, Qatar, Bulgaria,


1
    MCL 722.1101 et seq.


                                                -1-
Spain, and Portugal. The family returned to Michigan from October 2014 until November 2015
when they traveled through Central America and Mexico, living in a mobile home and home
schooling the minor children. The parties separated on May 20, 2018, but continued to live
separately in Mexico for a time. Plaintiff removed the children from Mexico on August 2, 2018.
She returned to the United States and eventually settled back in Newaygo. On November 14, 2018,
defendant filed for divorce in Mexico and a separate Hague Petition in the United States District
Court for the Western District of Michigan, asking for the return of the children to Mexico.
Plaintiff filed for divorce in Newaygo on February 15, 2019. The parties entered into a settlement
of the federal litigation and entered a stipulation that was adopted by the Michigan trial court as a
court order in the instant case. The stipulation filed in the circuit court, in pertinent part, read:

               1. In lieu of addressing the merits of the Hague Proceeding in the US Federal
       District Court for the Western District of Michigan, the Parties have agreed to the
       voluntary withdrawal of the Hague petition and to instead address the issue of
       which country has subject matter jurisdiction under the UCCJEA in this Court.

               2. The parties agree that if this Court finds that Mexico has subject matter
       jurisdiction over the minor children under the UCCJEA then the parties shall
       proceed with the divorce proceeding in the pending Mexican Divorce Proceeding
       and a voluntary Hague return order shall enter ordering the Plaintiff/Mother to
       return with the children to Guanajuato, Mexico within 14 days of the entry of a final
       order (unless otherwise stayed by this court or a court of competent jurisdiction)
       addressing a motion to dismiss and for other relief to be brought by the
       Defendant/Father in this matter within the next 14 days.

              3. Should this Court find that Mexico lacks subject matter jurisdiction over
       the minor children over [sic] the UCCJEA then the parties agree to enter a stipulated
       order of dismissal in the Mexican Divorce proceeding and to proceed with the
       divorce action in Michigan.

               4. This stip [sic] and order shall not cause the Defendant to be deemed to
       have waived any defenses which need to be raised in his initial pleadings, such
       defenses (if any) shall still be permitted to be raised in the motion he is to file in the
       next 14 days or in his answer to the complaint. The same shall apply for the Plaintiff
       in the divorce action pending in Mexico.

        The circuit court consulted with the trial judge in the case filed in Mexico. Subsequently,
the circuit court held an evidentiary hearing on the issues related to jurisdiction. The trial court
found that both Michigan and Mexico could be considered the children’s “home state” and
therefore each had jurisdiction over the divorce. The court determined that Mexico had jurisdiction
over the parties’ divorce proceedings because the children were present in Mexico for six months
preceding defendant’s filing his divorce complaint in Mexico. The court also determined that
Michigan had jurisdiction over the divorce proceedings because the children were in Michigan for
the six months preceding plaintiff’s filing for divorce. However, the court held that under the
UCCJEA, Michigan could not exercise its jurisdiction where divorce proceedings were first filed
in Mexico and they had not been terminated or stayed. As a result, the trial court entered the
voluntary return order directing plaintiff to return with the children to Mexico pursuant to the

                                                  -2-
adopted stipulation of the parties. The trial court then dismissed plaintiff’s Michigan divorce
complaint and any other filings provided by the parties. This appeal followed.

                                          II. ANALYSIS

       First, plaintiff argues that the UCCJEA does not apply in this case because the parties were
on an extended vacation with the children in Mexico. We disagree.

        “Whether a trial court has subject-matter jurisdiction presents a question of law that this
Court reviews de novo.” Nash v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008) (quotation
marks and citation omitted). This Court also reviews “issues of statutory construction de novo as
questions of law.” Id. at 108-109. However, the trial court’s determination whether to exercise
jurisdiction pursuant to the UCCJEA is reviewed for an abuse of discretion. Id. at 108. “[I]f the
trial court’s decision results in an outcome within the range of principled outcomes, it has not
abused its discretion.” Jamil v Jahan, 280 Mich App 92, 100; 760 NW2d 266 (2008). The
UCCJEA, which replaced the Uniform Child Custody Jurisdiction Act, MCL 600.651 et seq., was
designed to “rectify thirty years of inconsistent case law and revise child-custody jurisdiction in
light of overlapping federal enactments . . . .” Atchison v Atchison, 256 Mich App 531, 536; 664
NW2d 249 (2003). Further, this Court stated that

       [t]he UCCJEA was designed to: (1) rectify jurisdictional issues by prioritizing
       home-state jurisdiction, (2) clarify emergency jurisdictional issues to address time
       limitations and domestic-violence issues, (3) clarify the exclusive continuing
       jurisdiction for the state that entered the child-custody decree, (4) specify the type
       of custody proceedings that are governed by the act, (5) eliminate the term “best
       interests” to the extent it invited a substantive analysis into jurisdictional
       considerations, and (6) provide a cost-effective and swift remedy in custody
       determinations. [Id.]

“The UCCJEA prescribes the powers and duties of the court in a child-custody proceeding
involving [Michigan] and a proceeding or party outside of this state . . . .” Chessman v Williams,
311 Mich App 147, 151; 874 NW2d 385 (2015) (quotation marks and citation omitted; alterations
and ellipsis in original). “A foreign country is treated as a state of the United States when applying
the general and jurisdictional provisions of the UCCJEA.” Atchison, 256 Mich App at 537. See
also MCL 722.1105(1).

        These parties specifically agreed to have the trial court decide whether Michigan or Mexico
had jurisdiction pursuant to the UCCJEA. Stipulation aside, the trial court did not err in analyzing
the case pursuant to the UCCJEA. The trial court rejected plaintiff’s contention that the UCCJEA
did not apply because the parties were merely on an extended vacation in Mexico and did not plan
to stay. The defendant argued that the parties in fact intended to remain in Mexico. The trial court
found that the parties’ residential intentions were not dispositive given the undisputed actions. It
was undisputed that the family left Michigan in early 2014 and visited several different countries.
The family returned to Michigan and then traveled to Mexico in November 2015. Defendant and
the children were granted permanent residency in Mexico in 2017. Plaintiff never obtained
permanent resident status in Mexico. Plaintiff and the children returned to the United States in
August 2018 and the parties instituted the three cases concerning their dissolution of the marriage

                                                 -3-
and child custody. It is objectively true that the family had been in Mexico for three years prior to
their transport to the United States and that defendant remained in Mexico at the onset of the
proceedings. The trial court properly analyzed the case pursuant to the UCCJEA where a child-
custody proceeding was initiated in both Michigan and Mexico, and one party resided outside of
Michigan. See Chessman, 311 Mich App at 151.

      Second, plaintiff argues that even if the UCCJEA did apply in this case, only Michigan had
home state jurisdiction. We disagree.

      MCL 722.1201(2) states that MCL 722.1201(1) “is the exclusive jurisdictional basis for
making a child-custody determination by a court of this state.” MCL 722.1201(1) states:

               (1) Except as otherwise provided in section [MCL 722.1204,] a court of this
       state has jurisdiction to make an initial child-custody determination only in the
       following situations:

               (a) This state is the home state of the child on the date of the commencement
       of the proceeding, or was the home state of the child within 6 months before the
       commencement of the proceeding and the child is absent from this state but a parent
       or person acting as a parent continues to live in this state.

               (b) A court of another state does not have jurisdiction under subdivision (a),
       or a court of the home state of the child has declined to exercise jurisdiction on the
       ground that this state is the more appropriate forum under section [MCL 722.1207]
       or [MCL 722.1208], and the court finds both of the following:

              (i) The child and the child’s parents, or the child and at least 1 parent or a
       person acting as a parent, have a significant connection with this state other than
       mere physical presence.

               (ii) Substantial evidence is available in this state concerning the child’s care,
       protection, training, and personal relationships.

              (c) All courts having jurisdiction under subdivision (a) or (b) have declined
       to exercise jurisdiction on the grounds that a court of this state is the more
       appropriate forum to determine the custody of the child under section 207 or 208.

                (d) No court of another state would have jurisdiction under subdivision (a),
       (b), or (c).

According to MCL 722.1102(g), “home state” is

       the state in which a child lived with a parent or a person acting as a parent for at
       least 6 consecutive months immediately before the commencement of a child-
       custody proceeding. In the case of a child less than 6 months of age, the term means
       the state in which the child lived from birth with a parent or person acting as a
       parent. A period of temporary absence of a parent or person acting as a parent is
       included as part of the period.

                                                 -4-
“Commencement” is “the filing of the first pleading in a proceeding.” MCL 722.1102(e).
“Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor
sufficient to make a child-custody determination.” MCL 722.1201(3).

        In this case, plaintiff is correct that the trial court determined that Michigan was the home
state of the children when plaintiff filed her divorce complaint in Michigan in February 2019
because the children had been living in Michigan since August 2018. See MCL 722.1201(1)(a).
However, the trial court continued its analysis pursuant to MCL 722.1206(1)(a), which provides

               Except as otherwise provided in [MCL 722.1204] a court of this state may
       not exercise its jurisdiction under this article if, at the time of the commencement
       of the proceeding, a child-custody proceeding has been commenced in a court of
       another state having jurisdiction substantially in conformity with this act, unless the
       proceeding has been terminated or is stayed by the court of the other state because
       a court of this state is a more convenient forum under [MCL 722.1207].

        In this case, defendant filed a divorce complaint (involving the custody of the children) in
Mexico on November 14, 2018. It is undisputed that the parties and the children lived in Mexico
from November 2015 until August 2018. Therefore, as of August 2, 2018 (when plaintiff and the
children returned to the United States), the children’s home state was Mexico. Accordingly, when
defendant filed his complaint on November 14, 2018, Mexico was still the children’s home state
as it was within six months of August 2, 2018. See MCL 722.1201(1)(a). See also Nash, 280
Mich App at 111 (concluding that the home state for a child who lived in Texas from August 2006
until May 2007 was Texas when her parents filed a proceeding in Michigan in August 2007
because she had only lived in Michigan for two months).

        Plaintiff argues that the parties did not intend to remain in Mexico. However, this Court
explained that “the focus of the UCCJEA concerns a child’s actual presence, not his or her intent
to remain.” Ramamoorthi v Ramamoorthi, 323 Mich App 324, 339; 918 NW2d 191 (2018).
Moreover, plaintiff’s contention that the Mexican court cannot have jurisdiction because the
children do not have a strong connection with Mexico is not determinative in this case. First,
although the children had been living in Michigan for six months when plaintiff filed her divorce
complaint, at the time that defendant filed his divorce complaint in November 2018, the children
did not yet have strong ties to Michigan as they had not been in Michigan since 2015. Instead they
had been living in Mexico for almost three years. Second, plaintiff may raise this argument and
any other arguments regarding the appropriate forum in the Mexican court proceedings.

        Plaintiff also asserts that Mexico cannot have jurisdiction in substantial compliance with
the UCCJEA because Mexico is not bound by the UCCJEA and the Mexican court had not
accepted jurisdiction of the children. However, regardless of Mexico’s divorce or custody laws,
the Mexican court had jurisdiction of defendant’s divorce complaint pursuant to the UCCJEA. See
In re McDonald, 74 Mich App 119, 127-128; 253 NW2d 678 (1977) (concluding that pursuant to
the Uniform Child Custody Jurisdiction Act, “a state exercises jurisdiction in substantial
conformity with the Act when, regardless of the state’s own law on the matter, it has jurisdiction
under the criteria enumerated in the Act”). Additionally, plaintiff explained that the Mexican court
would not move forward until plaintiff filed an answer and the court held a preliminary hearing to


                                                 -5-
decide jurisdiction. At any rate, we are not aware that the court in Mexico has declined to exercise
jurisdiction. See MCL 722.1201(1)(b).

        Although the facts of this case are unique considering the lifestyle of the parties, we do not
believe that the trial court abused its discretion by declining to accept jurisdiction over the court
in Mexico. See Nash, 280 Mich App at 108. The trial court applied the plain language of the
statute to the facts of the case. Defendant filed for divorce in Mexico first within six months of
the children’s home state being Mexico as the parties had lived in Mexico for almost three years
before the parties separated and plaintiff returned to the United States. See MCL 722.1201(1)(a);
MCL 722.1102(g). Additionally, the trial court contacted the Mexican court to discuss
jurisdiction, and the Mexican court explained that it would decide jurisdiction after it heard the
case. Indeed, at the May 16, 2019 hearing, plaintiff asked the trial court to adjourn defendant’s
motion to dismiss and allow the Mexican court to decide whether it would exercise jurisdiction in
the case. The trial court noted that there may be some issues with plaintiff traveling to Mexico
and defendant’s residency status in Mexico, but those issues had not been established in the
existing record (the parties merely presented these issues in argument and pleadings no actual
evidence was provided). As a result, the trial court’s decision to decline jurisdiction despite having
some concerns was not an abuse of discretion. See Nash, 280 Mich App at 108.

        Third, plaintiff argues that defendant breached the stipulation and waived his defense that
he filed for divorce first in Mexico by filing a counterpetition under the Hague Convention with
his motion to dismiss concerning plaintiff’s divorce case in Michigan. We disagree.

        A waiver “is the intentional relinquishment of a known right.” Sweebe v Sweebe, 474 Mich
151, 156-157; 712 NW2d 708 (2006) (quotation marks and citation omitted). However, “[l]ack of
subject-matter jurisdiction may be raised at any time, and parties to an action can neither confer
jurisdiction by their conduct or action nor waive the defense by not raising it.” Winters v Dalton,
207 Mich App 76, 79; 523 NW2d 636 (1994).

         In this case, after the parties agreed to the stipulation and order and the federal case was
dismissed, defendant filed a motion to dismiss and a counterpetition under the Hague Convention,
asking for the return of the children. In response, plaintiff filed a motion for summary disposition
pursuant to MCR 2.116(C)(9) and (10), arguing that defendant availed himself to the Michigan’s
court’s jurisdiction by filing the counterpetition. Plaintiff’s waiver argument is unsupported by
caselaw. Moreover, the parties’ stipulation stated that defendant was permitted to present defenses
in a responsive pleading or motion filed within 14 days of the stipulation and order. One of the
defenses raised by defendant was that plaintiff wrongfully removed the children from Mexico
without defendant’s consent. Defendant further argued that even if the trial court found that
Michigan had jurisdiction pursuant to the UCCJEA, it should waive that jurisdiction pursuant to
MCL 722.1208 because plaintiff abducted the children to establish jurisdiction in Michigan. As a
result, the counterpetition was filed in anticipation of the trial court finding that Michigan had
subject-matter jurisdiction pursuant the UCCJEA and to preserve defendant’s defenses as
contemplated by the stipulation. At best, the defendant waived personal jurisdiction objections. It
is the court which must determine subject-matter jurisdiction and, defendant cannot waive that
determination. See Winters, 207 Mich App at 79.



                                                 -6-
       Plaintiff additionally contends that the trial court erred in failing to make any findings
regarding the Hague Convention or allow plaintiff to present her defenses. We disagree.

       “Stipulated orders that are accepted by the trial court are generally construed under the
same rules of construction as contracts.” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183
(2000). “Like contracts, stipulated orders are agreements reached by and between the parties.” Id.

        In this case, the trial court followed this stipulation. The trial court determined that Mexico
had jurisdiction under the UCCJEA and then issued the voluntary return order directing plaintiff
to return with the children to Mexico as contemplated in ¶ 2. The parties simply agreed to
participate in the divorce proceedings in the location as determined by the trial court’s finding
regarding jurisdiction pursuant to the UCCJEA. On appeal, plaintiff does not contend that she did
not agree to this arrangement or that the stipulation is somehow improper. Although plaintiff
argues that defendant’s filing of the counterpetition invited the trial court to complete an analysis
pursuant to the Hague Convention, defendant filed his counterpetition to preserve his defenses or
in anticipation of the trial court finding that Michigan had jurisdiction. The invitation was not a
mandate. The trial court has not committed any error, especially considering that plaintiff did not
file her second motion for summary disposition (involving her arguments under the Hague
Convention) until after the trial court issued its opinion regarding jurisdiction and the voluntary
return order.

         In addition, plaintiff raises constitutional arguments for the first time on appeal, arguing
that her due-process rights were violated because she was not allowed to present defenses and that
the trial court should have considered the UCCJEA and the Hague Convention together. She also
asserts that the UCCJEA’s treatment of a foreign county as another “state” is unconstitutional.
However, considering the parties’ stipulation and plaintiff’s failure to raise any of her
constitutional arguments in the lower court proceedings, plaintiff has not shown that the trial
court’s voluntary return order constituted plain error affecting her substantial rights. See Wolford
v Duncan, 279 Mich App 631, 641; 760 NW2d 253 (2008). As a result, the trial court did not err
in issuing the voluntary return order pursuant to the parties’ stipulation and the trial court’s
determination that Mexico had jurisdiction.

        Finally, defendant argues that this Court should lift the trial court’s stay. However, this
request is not properly before this Court because defendant failed to file a cross-appeal on this
issue. See Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 88-89; 869 NW2d 213
(2015).

       Affirmed.

                                                               /s/ David H. Sawyer
                                                               /s/ Jane E. Markey
                                                               /s/ Cynthia Diane Stephens




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