Tyszka v Tyszka (Mich.App. 1993)503 N.W.2d 726

Henry Tyszka, Plaintiff-Appellant-Cross-Appellee


Michele Tyszka, Defendant-Appellee-Cross-Appellant

Docket Number 148606, Court of Appeals of Michigan

Submitted: 10 Feb 1993
Decided: 21 Jun 1993
Released for Publication: 24 Aug 1993

James N. Renfroe, Bingham Farms, for plaintiff-appellant.

Prather & Foley, P.C. by Kenneth E. Prather and James R. Stearns,
Detroit, for defendant-appelle.

Before: Jansen, P.J.; Mark J.; Cavanagh, JJ; Schaefer, * JJ.

[* Circuit judge, sitting on the Court of Appeals by assignment.]


Plaintiff Henry Tyszka, a Michigan resident, appeals as of
right from a January 16, 1992, judgment of divorce awarding him
and defendant Michele Tyszka joint custody of their children, with
defendant awarded physical custody. Defendant, a resident of
France, cross appeals by leave granted. The parties challenge the
trial court’s jurisdiction and its decisions regarding custody,
division of the marital assets, and a request for attorney fees.
We vacate that part of the judgment relating to the custody of the
parties’ children and in all other respects affirm.

According to the record, the parties were married in France
on February 15, 1986 and moved to Michigan one month later. The
family returned to France in June of 1989, and the evidence
indicates that their intent was to reside in France permanently.

On August 11, 1990, plaintiff and the children came to
Michigan for a vacation, with the understanding that they would
return at the start of the school year in September. On September
4, 1990, plaintiff informed defendant that he was going to remain
in Michigan with the children and that he had filed for divorce in
the Wayne Circuit Court and obtained an ex parte interim order
awarding him custody of the children.

Defendant moved for a modification of the ex parte interim
custody order on the basis of the 1980 Hague Convention on the
Civil Aspects of International Child Abduction. 42 U.S.C. Sec.
11501 et seq. (International Child Abduction Remedies Act.) In an
opinion issued on February 21, 1991, the trial court determined
that, “under Article 3 of the Hague Convention, plaintiff’s
retention of the children was wrongful and defendant would appear
to be entitled to an order directing plaintiff to return the
children.” Regarding other pending matters, the trial court
decided to “hold in abeyance any consideration of the custody
issue beyond ordering that the children be returned to their
mother in France, until such time as the appropriate French court
adjudicates the issue.” Defendant’s request for attorney fees,
brought under Article 26 of the Hague Convention, was taken under

Notwithstanding the opinion issued in February, the trial
court then conducted a divorce and custody proceeding and issued a
judgment of divorce in which joint legal custody was awarded to
both parties, a Fidelity Investment Fund Account was divided
equally, and each party was made responsible for their respective
attorney fees.

On appeal, plaintiff claims that the trial court failed to
make findings of fact regarding the best interests of the
children, pursuant to M.C.L. Sec. 722.23; M.S.A. Sec. 25.- 312(3),
and that any findings of fact were against-the great weight of the
evidence. On cross appeal, defendant claims that the issue of
custody should have been left to the French courts, that the equal
division of the Fidelity Investment Fund Account was an abuse of
discretion, and that she is entitled to attorney fees. Because we
agree with defendant that France should decide the merits of the
custody issue, we have no reason to address the claims raised in
plaintiff’s appeal. With respect to the division of the marital
assets and the payment of attorney fees, we find no abuse of

In 1986, the United States ratified the Hague Convention on
the Civil Aspects of International Child Abduction. The enabling
legislation giving force to this convention was enacted shortly
thereafter as the International Child Abduction Remedies Act. 42
U.S.C. Sec 11601-11610. WMHFN 01 The convention’s goal is to curb
international abductions of children by providing judicial
remedies to those seeking the return of a child who has been
wrongfully removed.

Under Article 3, the removal or retention of a child is to be
considered wrongful where:

a. it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone under the
law of the State which the child was habitually
resident immediately before the removal or
retention; and

b. at the time of removal or retention those
rights were actually exercised, either jointly
or alone, or would have been so exercised but
for the removal or retention.

Pursuant to Article 16, a judicial authority, after receiving
notice of a wrongful retention, “shall not decide on the merits of
rights of custody until it has been determined that the child is
not to be returned under this Convention or unless an application
under this Convention is not lodged within a reasonable time
following receipt of notice.” Furthermore, under Article 12, if a
wrongful retention is found and the exceptions found in Article 13
do not apply, the judicial authority of the “Contracting State
where the child is . . . shall order the return of the child
forthwith.” The issue of custody would then be decided in the
place of habitual residence by a tribunal with subject-matter
jurisdiction. See Tahan v Duguette, (1992) 259 NJ.Super. 328, ‘
332, [613 A.2d 486]Sheikh v Cahill (1989) 145 Misc.2d 171, 178
[546 N.Y.S.2d 517]. Also see 51 Fed Reg 10505 (1986), which
explains that the.”convention is premised upon the notion that the
child should be promptly restored to his or her country of
habitual residence so that a court there can examine the merits of
the custody dispute and award custody in the child’s best

[1] In this case the trial court determined that the children
had been wrongfully retained in this country by their father and
that they should be returned to their mother in France. Given
these initial determinations, we are firmly convinced that the
issue of custody should be resolved by French tribunal with
subject-matter jurisdiction.

[2, 3] Defendant also challenges the trial court’s decisions
denying her request for attorney fees and awarding plaintiff an
equal share of a Fidelity Investment Fund Account. With respect to
the request for attorney fees, the trial court concluded, and we
must agree, that a frivolous claim was not presented. See Sarin v
Samaritan Health Center (1989) 176 Mich.App. 790, 799 [440 N.W.2d
80]. Consequently, the trial court’s denial of fees is affirmed.
With respect to the division of the Fidelity Investment Fund
Account, the division seems equitable in light of the length of
the marriage and the contributions of both parties to the
marriage. See Sparks v Sparks (1989), 440 Mich. 141, 159-160 [485
N.W.2d 893].

We vacate that part of the divorce judgment that relates to
the custody of the parties’ children and in all other respects

1. The United States became a Contracting State on 01 Jul 1988.
See Art. 38 of The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980 [The Convention].