Issue No. 6 | June 2021

By Austin W. Probst

Recently, the Michigan Court of Appeals decided, in an unpublished opinion, the custody case of Kostreva v. Kostreva.[1] The facts are simple: the parties were divorced in 2017, they had one minor daughter, (“LKK”). As part of the divorce Judgment, Father was to be the sole caretaker for LKK’s passport. While Mother’s Mother (“Grandmother”) was visiting from Poland, she unexpectedly passed away. In preparation for the memorial and burial, which was to occur in Poland, Mother asked Father to consent to Mother taking LKK to Poland for two weeks for the memorial, Father did not consent. Two days before she was set to leave for Poland, Mother filed an emergency motion (A) to authorize travel, (B) release of LKK’s passport, and (C) for attorney fees. The trial court granted the motion and authorized travel from July 20, 2019, to August 3, 2019 and set the matter for hearing. Father could not object or respond to the motion until after the travel had already occurred. When Mother returned, and the hearing took place, the trial court awarded Mother attorney fees and, on its own motion, ruled that the caretaker of the passport be modified to Mother. Father appealed the trial court’s ruling.

The Court of Appeals reviewed Father’s position which included, among other arguments[2], that the trial court violated Father’s due process rights by issuing the order without hearing. Father argued that the trial court deprived him of due process by issuing an Ex-Parte[3] Order permitting the child to travel to Poland. The Court of Appeals disagreed. Interestingly, the Court began its opinion on this matter by stating,

Preliminarily, neither the court below nor either party on appeal has addressed the issue of mootness in conjunction with defendant’s objections to the ex parte order. But Plaintiff had gone to, and returned from, Poland by the time the defendant filed his written response to Plaintiff’s emergency motion. An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief.

The Court is essentially saying that since the trip to Poland had long passed by the time the case was presented to the Court of Appeals, the issue was dead, not redressable, and therefore moot. However, the Court not so subtly states that even though the issue may be moot the Court decided the matter in consideration of the mootness exception contained in Contesti v. Attorney General.[4]

As an aside, if any of our readers regularly subscribe to Attorney Alan May’s reviews of probate cases in the Court of Appeals[5], you will recognize that mootness has become a particularly hot topic in recent rulings. Nevertheless, the Court of Appeals rejected Father’s argument. It reasoned that the trial court had based its decision on a bona fide emergency compelling the issuance of the Ex-Parte Order. We are watching how this case, although unpublished, will be applied to ongoing divorce and custody matters moving forward.

[1] Kostreva v. Kostreva, No. 352029, 2021 WL 2600813, at *1 (Mich. Ct. App. June 24, 2021).

[2] For brevity, this piece will only focus on the due process argument.

[3] Without a hearing.

[4] Contesti v. Attorney General, 164 Mich App 271, 278; 416, nw2d 410 (1987).


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