                          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 In re Guardianship of Bibi/Wallace Minors, unpublished order of the Court of Appeals, entered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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