                           STATE OF MICHIGAN

                            COURT OF APPEALS



KYLE CHEESMAN,                                                       FOR PUBLICATION
                                                                     June 18, 2015
               Plaintiff-Appellant,                                  9:00 a.m.

v                                                                    No. 320446
                                                                     Wayne Circuit Court
                                                                     Family Division
DANILIA THERESA WILLIAMS,                                            LC No. 13-109854-DC

               Defendant-Appellee.


Before: MARKEY, P.J., and OWENS and GLEICHER, JJ.

PER CURIAM.

        Plaintiff appeals by right an order dismissing this child custody case. The issues raised
on appeal relate to a previous order wherein the trial court declined to exercise jurisdiction over
the instant case. We reverse and remand for further proceedings consistent with this opinion.

        This case arises out of a custody dispute involving KC, who was born to plaintiff and
defendant on June 11, 2003. The parties were never married, but plaintiff and defendant
executed an affidavit of parentage on June 13, 2003, listed plaintiff’s name on KC’s birth
certificate, and continuously held out KC as plaintiff’s daughter. KC “lived jointly between”
plaintiff and defendant until 2009, when defendant was incarcerated. After defendant’s release,
KC remained in Detroit, Michigan, until 2011, when she moved to Ohio with defendant.
Between 2011 and 2013, KC moved from Ohio to Georgia and back to Ohio with defendant, but
she visited plaintiff in Michigan during the summer and school breaks. It appears that the trial
court dismissed this case based on its conclusion that Michigan did not have jurisdiction, and,
even if did, Michigan constituted an inconvenient forum.

        Plaintiff first argues on appeal that the trial court abused its discretion when it failed to
exercise jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act
(UCCJEA), MCL 722.1101 et seq. We agree, but only to the extent that we conclude that the
trial court failed to fully consider whether it had jurisdiction under the UCCJEA.

        Absent a factual dispute, this Court reviews de novo, as a question of law, whether a trial
court has jurisdiction under the UCCJEA. Foster v Wolkowitz, 486 Mich 356, 362; 785 NW2d
59 (2010). But even if a court may exercise jurisdiction under the UCCJEA, the decision do so
is “within the discretion of the trial court and [will] not be reversed absent an abuse of that
discretion.” Nash v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008)(citation omitted).
                                                -1-
“Generally, an appellate court should defer to the trial court’s judgment, and if 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). Additionally, “[t]he
clear legal error standard applies where the trial court errs in its choice, interpretation, or
application of the existing law.” Foskett v Foskett, 247 Mich App 1, 4-5; 634 NW2d 363 (2001).
This Court reviews issues of statutory construction de novo. Nash, 280 Mich App at 108.

         The UCCJEA, MCL 722.1101 et seq., “prescribes the powers and duties of the court in a
child-custody proceeding involving [Michigan] and a proceeding or party outside of this state.”
Fisher v Belcher, 269 Mich App 247, 260; 713 NW2d 6 (2005). Because it is undisputed that
defendant resides outside of Michigan, this case requires the interpretation and application of the
UCCJEA. This Court previously summarized rules of statutory interpretation in a case in which
it interpreted the jurisdictional provisions of the UCCJEA:

       The primary goal of statutory interpretation is to give effect to the intent of the
       Legislature. This determination is accomplished by examining the plain language
       of the statute itself. If the statutory language is unambiguous, appellate courts
       presume that the Legislature intended the meaning plainly expressed and further
       judicial construction is neither permitted nor required. Under the plain-meaning
       rule, courts must give the ordinary and accepted meaning to the mandatory word
       “shall” and the permissive word “may” unless to do so would frustrate the
       legislative intent as evidenced by other statutory language or by reading the
       statute as a whole. [Atchison v Atchison, 256 Mich App 531, 535; 664 NW2d 249
       (2003) (citations omitted).]

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

       (1) Except as otherwise provided in section 204, [which concerns temporary
       emergency jurisdiction,] 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 207 or
       208, 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.
                                                -2-
              (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).

Additionally, “[p]hysical 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).

        At the settlement conference, the trial court appeared to conclude that it did not have
jurisdiction over the case on the sole basis that Michigan was not KC’s “home state” as defined
in MCL 722.1102(g). Likewise, as both parties agree, it is evident that the trial court could not
exercise jurisdiction over this case pursuant to MCL 722.1201(1)(a), as Michigan was not the
“home state” of KC on the date of the commencement of the proceeding or within six months
before the commencement of the action. “Home state” is defined as follows:

       [T]he 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. . . . A period of temporary absence of a parent or person
       acting as a parent is included as part of the period. [MCL 722.1102(g).]

“Commencement” is defined as “the filing of the first pleading in a proceeding.” MCL
772.1102(e). The complaint, which was the first pleading filed in this child custody proceeding,
was filed on August 19, 2013, so the relevant six-month period is between February 19, 2013
and August 19, 2013. According to the residency timelines provided in the pleadings and briefs
submitted by both parties and defendant’s statements on the record at the settlement conference
hearing, KC resided in Michigan until 2011 and resided in either Ohio or Georgia at least
between December 2011 and June 2013, although the parties dispute the dates on which
defendant and KC moved from state to state. Likewise, both parties acknowledge that KC was
physically present in Michigan when plaintiff filed his complaint on August 19, 2013. Thus,
because KC did not live in Michigan for at least six consecutive months before the filing of the
complaint on August 19, 2013, and Michigan was not KC’s home state within six months before
the filing of the complaint, the trial court could not exercise jurisdiction over the case pursuant to
MCL 722.1201(1)(a). See Nash, 280 Mich at 110-111.

        Nonetheless, the trial court failed to consider whether it had jurisdiction over the case
pursuant to any of the other sources of jurisdiction under MCL 722.1201(1), despite the fact that
plaintiff argued in the trial court that the court should exercise jurisdiction pursuant to MCL
772.1201(1)(b) or MCL 772.1201(1)(d).1 Although this Court may review de novo whether a




1
  We note that the trial court could not have jurisdiction under MCL 722.1201(1)(c), as both
parties acknowledge that no other custody proceeding regarding KC has been initiated in another

                                                 -3-
trial court has jurisdiction under the UCCJEA when there are no factual disputes, Foster, 486
Mich at 362, the parties dispute (1) the length of time during which KC lived in Ohio and
Georgia, (2) the state with which KC has the strongest relationship, and (3) the state in which the
most evidence regarding KC is located.

         Nevertheless, despite the conflicting dates, it appears that neither Ohio nor Georgia could
exercise “home state” jurisdiction under MCL 722.1201(1)(a). According to the timelines
provided by the parties, KC had not resided in Ohio for at least six consecutive months
immediately before the complaint was filed and had not resided in Ohio for a consecutive six-
month period that ended within the six months before the complaint was filed. Additionally,
even if we assume that KC did, in fact, live in Georgia for six consecutive months based on some
of the timelines the parties provided, it is undisputed that neither defendant nor KC continued to
live in Georgia after April 2013. The fact that neither Ohio, Georgia, or any other state, could
exercise home state jurisdiction under MCL 722.1201(1)(a) would fulfill the first part of MCL
722.1201(1)(b). But despite the fact that the first part of MCL 722.1201(1)(b) may be satisfied,
the trial court did not consider any evidence regarding the factors that comprise the second part
of MCL 722.1201(1)(b), i.e., (i) whether KC and plaintiff had a “significant connection” with
Michigan other than mere presence and (ii) whether substantial evidence is available in Michigan
concerning KC’s care, protection, training, and personal relationships. Instead, it appears that
the trial court only considered where defendant and KC had lived and defendant’s ties to Ohio in
making its determination. Additionally, the record does not include any evidence—apart from
the parties’ conclusory assertions in their briefs—regarding whether plaintiff and KC have a
significant connection with Michigan and whether more evidence is available in Michigan, as
opposed to Ohio or Georgia, concerning KC. MCL 722.1201(b)(i)-(ii). In fact, given this
Court’s construction of “significant connection,” i.e., “where one parent resides in the state,
maintains a meaningful relationship with the child, and, in maintaining the relationship, exercises
parenting time in the state,” White v Harrison-White, 280 Mich App 383, 394; 760 NW2d 691
(2008), and the parties’ characterization of plaintiff’s relationship with KC, which included an
ongoing relationship and parenting time in Michigan, it appears that it would have been
especially important for the trial court to consider additional evidence and determine whether it
could exercise jurisdiction pursuant to MCL 722.1201(1)(b). Unfortunately, given the limited
evidence in the record regarding the factors under MCL 722.1201(1)(b), this Court is unable to
review de novo whether Michigan could have jurisdiction pursuant to that subsection.

        Additionally, by focusing solely on residency, the trial court failed to consider whether
defendant and KC have a significant connection with Ohio or Georgia other than mere presence
and whether substantial evidence is available in either state regarding KC’s care, protection,
training, and personal relationships. As a result, the trial court failed to consider whether Ohio or
Georgia may have jurisdiction under MCL 722.1201(1)(b), and, as a result, failed to determine
whether Michigan could exercise jurisdiction pursuant to MCL 722.1201(1)(d). Because the
lower court record lacks evidence concerning both factors under MCL 722.1201(1)(b) with
regard to Ohio and Georgia, this Court is also unable to determine whether the trial court could
exercise jurisdiction under MCL 722.1201(1)(d). Consequently, the trial court erroneously

state, so no other state has already declined to exercise jurisdiction over this case in favor of
Michigan.


                                                -4-
applied the jurisdictional provisions of the UCCJEA when it failed to consider whether it could
exercise jurisdiction under MCL 722.1201(1)(b) and MCL 722.1201(1)(d). Foskett, 247 Mich
App at 4-5.

        Because there are factual disputes regarding KC’s residency and there is insufficient
evidence in the lower court record for this Court to review de novo whether a Michigan court
may exercise jurisdiction over the instant case pursuant to those subsections, we remand this case
pursuant to MCR 7.216(A)(5) so that the trial court may take additional evidence and determine
whether Michigan may exercise jurisdiction pursuant to MCL 722.1201(1)(b) or MCL
722.1201(1)(d). If the trial court concludes that it has jurisdiction over the case, it is within the
discretion of the court to determine whether to exercise that jurisdiction. Nash, 280 Mich App at
108.

        Next, plaintiff argues that the trial court abused its discretion when it declined to exercise
jurisdiction over the case based on its finding that Michigan is an inconvenient forum because it
failed to take testimony from both parties regarding disputed facts and relied on an ex parte
communication from defendant. We agree, but on the basis that the trial court failed to comply
with MCL 722.1207. We review issues of statutory construction de novo and a court’s decision
to decline to exercise jurisdiction for an abuse of discretion. Nash, 280 Mich App at 108.

       MCL 722.1207 expressly addresses the circumstances under which a trial court may
decline to exercise its jurisdiction under the UCCJEA based on a finding that the state is an
inconvenient forum and the procedures that the trial court must follow in doing so. MCL
722.1207 provides, in relevant part:

              (1) A court of this state that has jurisdiction under this act to make a child-
       custody determination may decline to exercise its jurisdiction at any time if it
       determines that it is an inconvenient forum under the circumstances and that a
       court of another state is a more appropriate forum. The issue of inconvenient
       forum may be raised upon the motion of a party, the court’s own motion, or the
       request of another court.

               (2) Before determining whether it is an inconvenient forum, a court of this
       state shall consider whether it is appropriate for a court of another state to exercise
       jurisdiction. For this purpose, the court shall allow the parties to submit
       information and shall consider all relevant factors, including all of the following:

               (a) Whether domestic violence has occurred and is likely to continue in the
       future and which state could best protect the parties and the child.

               (b) The length of time the child has resided outside this state.

              (c) The distance between the court in this state and the court in the state
       that would assume jurisdiction.

               (d) The parties’ relative financial circumstances.



                                                 -5-
               (e) An agreement by the parties as to which state should assume
       jurisdiction.

                (f) The nature and location of the evidence required to resolve the pending
       litigation, including the child’s testimony.

              (g) The ability of the court of each state to decide the issue expeditiously
       and the procedures necessary to present the evidence.

              (h) The familiarity of the court of each state with the facts and issues of
       the pending litigation. [Emphasis added.]

        First, the trial court appeared to conclude that it did not have jurisdiction over the case at
the settlement conference hearing. If the trial court did, in fact, conclude that it did not have
jurisdiction, it could not subsequently decline to exercise jurisdiction that it did not possess. See
MCL 722.1207(1) (“A court of this state that has jurisdiction under this act to make a child-
custody determination may decline to exercise its jurisdiction at any time if it determines that it
is an inconvenient forum under the circumstances and that a court of another state is a more
appropriate forum.” [Emphasis added.]).

        Assuming, however, that the trial court concluded that Michigan is an inconvenient
forum even if it did have jurisdiction over the case, we note that the record contains no indication
that the trial court considered all of the factors requisite under MCL 722.1207(2). Instead, the
trial court only provided the following reasoning:

               It would be foolish to have jurisdiction here when the child lives with
       mom in Ohio. She has been married, remarried for two years and her husband has
       a job there. And even if I had jurisdiction and she filed a change of domicile[,] I
       would likely grant it, so it would be foolish for me to take jurisdiction of a case I
       don’t -- I’ve not had.

               I don’t think Michigan is the home state, and based on MCL
       722.1102(G)[,] which defines home state, and then I find that this is an
       inconvenient forum for these parties to litigate any further issues regarding this
       child, so I’m not going to take jurisdiction. And if dad wants to change his
       parenting time or anything else[,] he needs to file an action in Ohio in the county
       that this child lives in, okay.

       It is evident from the lower court file that the trial court should have acknowledged
evidence already in the record or requested additional information as it considered each factor
under MCL 722.1207(2). For example, the parties’ pleadings and a stamp on plaintiff’s
complaint indicate that a previous case between the parties related to child support and custody
was filed, and ultimately dismissed, in the Wayne Circuit Court and assigned to the trial court
judge who presided over the instant case, which suggests that the trial court should have
considered its familiarity with the facts of the instant case pursuant to MCL 722.1207(2)(h).
Further, the lower court record received on appeal includes no information—apart from the
conclusory assertions in the parties’ briefs regarding jurisdiction and an email that purportedly
contains a “diary” entry that KC wrote on a Kindle device—regarding the various factors listed
                                                 -6-
in MCL 722.1207(2). As such, it is evident that the trial court determined that Michigan was an
inconvenient forum without sufficient evidence regarding the relevant factors and without
considering all of the relevant factors.

       Moreover, MCL 722.1207(2) provides that the court “shall allow the parties to submit
information,” but it does not appear that the trial court did so before it determined that Michigan
was an inconvenient forum. Additionally, MCL 722.1207(3) states:

       If a court of this state determines that it is an inconvenient forum and that a court
       of another state is a more appropriate forum, it shall stay the proceedings upon
       condition that a child-custody proceeding be promptly commenced in another
       designated state and may impose any other condition the court considers just and
       proper.

Thus, even if the trial court had properly concluded that Michigan was an inconvenient forum, it
erred by dismissing the case instead of staying the proceeding in accordance with the procedure
proscribed in MCL 722.1207(3).

       A trial court abuses its discretion when it misinterprets or misapplies the law. Bynum v
ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002). Thus, because the trial court
failed to determine whether it has jurisdiction under MCL 722.1201(1)(b) or MCL
722.1201(1)(d)—which was necessary for it to conclude whether it did, in fact, have jurisdiction
before it could decline to exercise that jurisdiction, MCL 722.1207(1)—and subsequently failed
to consider each of the relevant factors as required under MCL 722.1207(2), the trial court
abused its discretion when it declined to exercise jurisdiction over the case based on its finding
that Michigan is an inconvenient forum.

        There are no published Michigan cases that directly address a trial court’s failure to make
explicit findings under MCL 722.1207. But in general, the remedy for a failure to make proper
findings of fact under the Child Custody Act (CCA), MCL 722.21 et seq., is to remand the case
to the trial court for a reevaluation of the relevant factors. See Rittershaus v Rittershaus, 273
Mich App 462, 475-476; 730 NW2d 262 (2007) (remanding the case after the trial court made no
factual findings regarding the best-interest factors delineated in the CCA and denied the
defendant’s motion to change custody with no explanation). We conclude that the same standard
should apply to a trial court’s failure to make factual findings under MCL 722.1207(2) before it
concludes that it is an inconvenient forum. Accordingly, on remand, the trial court must take
additional evidence and consider each factor under MCL 722.1207(2).

       Finally, plaintiff argues that the trial court’s orders should be reversed because it relied
on an ex parte communication from defendant. We disagree.

        “Generally, to preserve an issue for appellate review, the issue must be raised before and
decided by the trial court.” Detroit Leasing Co v City of Detroit, 269 Mich App 233, 237; 713
NW2d 269 (2005). Plaintiff did not object to the trial court’s consideration of the ex parte
communication, i.e., a statement of residency that defendant faxed to the trial court. Thus, this
issue is not preserved for appeal. Unpreserved claims are reviewed for plain error, which
“occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3)

                                                -7-
prejudiced the party, meaning it affected the outcome of the lower court proceedings.” Duray
Dev, LLC v Perrin, 288 Mich App 143, 150; 792 NW2d 749 (2010).

        We note that plaintiff has failed to cite any case law in his brief on appeal regarding the
applicable standard to review this issue or support with authority his assertion that the trial
court’s orders must be reversed due to the ex parte communication. An appellant may not
merely announce a position then leave it to this Court to discover and rationalize the basis for
the appellant’s claims; nor may an appellant give an issue only cursory treatment with little or no
citation of authority. McIntosh v McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2009).
Further, “[t]his Court will not search for authority to sustain or reject a party’s position.”
Phillips v Deihm, 213 Mich App 389, 401; 541 NW2d 566 (1995). Consequently, we find that
plaintiff has abandoned this argument. Moreover, were there any error, it was harmless.

       In Grievance Adm’r v Lopatin, 462 Mich 235, 262-263; 612 NW2d 120 (2000), quoting
Shaman, Lubet & Alfini, Judicial Conduct and Ethics (3d ed), § 5.01, pp 159-160, our Supreme
Court discussed the danger of ex parte communications:

       Ex parte communications deprive the absent party of the right to respond and be
       heard. They suggest bias or partiality on the part of the judge. Ex parte
       conversations or correspondence can be misleading; the information given to the
       judge “may be incomplete or inaccurate, the problem can be incorrectly stated.”
       At the very least, participation in ex parte communications will expose the judge
       to one-sided argumentation, which carries the attendant risk of an erroneous
       ruling on the law or facts. At worst, ex parte communication is an invitation to
       improper influence if not outright corruption.

The Code of Judicial Conduct, Cannon 3(A)(4), also provides guidance for the judiciary
regarding ex parte communications.

        The transcript of the settlement conference indicates that the trial court was not aware
that counsel for the parties had not received a copy of the statement of residency that defendant
personally faxed to the trial court. But, even assuming that the trial court erred by considering
the ex parte communication, the record contains no indication that plaintiff was prejudiced by the
trial court’s consideration of the document. The trial court acknowledged that it had received a
statement of residency by fax at the beginning of the settlement conference, and when the court
realized that neither attorney had received a copy of the document, the court immediately had
copies provided to counsel. The trial court also asked defendant to “corroborate that document”
on the record. Defendant did, in fact, verify and explain her timeline of KC’s residency since
June 2011, but she was not under oath when she did so. While defendant was confirming the
timeline, plaintiff’s counsel stated on the record that based on school records, she disputed the
amount of time that defendant claimed that she and KC lived in Georgia. As such, it is apparent
that plaintiff had the opportunity to challenge information in the ex parte communication and, in
fact, disputed its accuracy. Likewise, it appears that the risks of incomplete or inaccurate
information and one-sided argumentation identified by the Michigan Supreme Court in Lopatin
were cured by the parties’ discussion on the record during the settlement conference regarding
the facts in the document. Lopatin, 462 Mich at 262-263.


                                                -8-
        Further, MCR 2.613(A) provides the following with regard to harmless errors: “[A]n
error or defect in anything done or omitted by the court . . . is not ground for . . . vacating,
modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears
to the court inconsistent with substantial justice.” Given that plaintiff had an opportunity to
challenge, and actually did challenge, the information in the ex parte communication, we find no
indication that the trial court’s consideration of the document was inconsistent with substantial
justice. Therefore, because the trial court’s considering the ex parte communication did not
constitute a plain error that affected plaintiff’s substantial rights, and was instead harmless error,
we will not reverse or otherwise modify the orders entered on that basis. Id.; Duray, 288 Mich
App at 150.

        We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction. As the prevailing party plaintiff may tax costs pursuant to MCR 7.219.

                                                              /s/ Jane E. Markey
                                                              /s/ Donald S. Owens
                                                              /s/ Elizabeth L. Gleicher




                                                 -9-
