Persistence did not pay off well in divorce case

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Marie Matyjaszek

The Michigan Court of Appeals recently decided an unusual jurisdiction case – Vijayalakshmi v. Sivagnanam Thamilselvan, which involved competing jurisdiction claims from Oakland County and India.

Both parties are Indian citizens and were married in India as an arranged marriage. Only three weeks after their marriage, the husband moved to Florida, and the wife joined him a year later. They had a daughter in the U.S. and moved to Michigan when she was an infant, settling in Farmington Hills.

In late 2017, the wife and daughter left the husband, citing abuse, but remained in Michigan. The husband wanted to reconcile and decided to try and accomplish this by filing for divorce in Oakland County, hoping the family would return to him after he filed a motion for their daughter to return home. His plan didn’t work, so he dismissed the divorce filing.

The wife filed her own divorce action in Oakland County a month later, which forced the husband to concoct another plan to stay together. His reach was much farther this time, asking the Family Court in India “for restoration of his conjugal rights, as a form of reconciliation or mediation with [his wife].” 

As far as can be determined, Michigan has no equivalent to this type of petition, and I was surprised to learn this was an actual option. Not willing to stop there, he also petitioned the India high court for an “anti-suit injunction,” which would stop his wife from pursuing the Michigan divorce.

The wife fought the India legal actions, but an injunction was ultimately entered in India. In the meantime, the husband filed the typical answer to complaint for divorce in Oakland County. He also filed two motions to dismiss the Michigan divorce, arguing that only India had the jurisdiction to divorce the couple. The court disagreed and would not enforce the India injunction, because doing so would prevent the wife from obtaining her legal right to a divorce. After a trial, the Oakland County divorce was granted in May 2019.

The husband appealed the finding of jurisdiction ruling, lack of recognition of the India order, and some property values.  The Michigan Court of Appeals found in favor of the wife on all issues.

Michigan’s jurisdiction of the court is found in MCL 552.9(1), which mandates that a judgment of divorce cannot be granted unless one of the parties has lived in Michigan for 180 days immediately preceding the filing of the divorce, and with few exceptions, one of the parties must have lived in the county where the complaint was filed for 10 days immediately preceding the filing. 

The Court of Appeals emphasized that a party’s intent is the key factor in determining residence, and that the statute only mandates the residence requirement for one party, not both.  In examining the family’s history in the U.S., they had lived and worked in Michigan for more than 18 years, educated their daughter here, purchased two Michigan homes, and paid taxes.  The Court of Appeals gave deference to the trial court’s determination of the wife’s testimony as being credible to residency.

What also proved key was the fact that the husband availed himself to the jurisdiction of Oakland County when he first filed for divorce and also when he answered the complaint. Basically, you can’t have it both ways. He also argued that only an India court could grant a divorce, yet he never petitioned the India court for a divorce – in fact, he did the exact opposite.

The husband also took issue with the lack of comity afforded to the injunction issued by the India court. Unfortunately for him, ‘[t]he rule of comity...is a discretionary doctrine...and is not allowed to operate when it will contravene the rights of a citizen of the State where the action is brought.” While it takes two to get married, you only need one to get a no-fault divorce in Michigan. If the Michigan court recognized the India injunction, it would be denying the wife’s inalienable legal right to a divorce.

The saying “throw it against the wall and see what sticks” is particularly fitting for this case, given the husband’s persistence in preventing the divorce. This same persistence cost him thousands as he was ordered to pay part of his wife’s attorney fees, proving that persistence doesn’t always pay off.

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The author is an Attorney Referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. She can be reached at matyjasz@hotmail.com.