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May 06, 2016

COA concludes that a consent judgment does not have preclusive effect where factual issues were not tried in the prior proceeding and where the judgment was intended to be temporary

Collateral estoppel and res judicata does not bar future claims arising from temporary consent judgments, says the Michigan Court of Appeals in In re Guardianship of Bibi/Wallace Minors, No. 327159.  In a guardianship dispute between grandmothers, the Court of Appeals declined to apply principles of preclusion because the consent judgment was temporary, factual issues were never tried, and the circumstances concerning the matter have changed since the prior proceeding.
 
The Windsor-Essex Children’s Aid Society under Ontario’s Child and Family Services Act instituted a child protection proceeding, because the wards’ parents have a long history of substance abuse, transient living, criminal activity, and incarceration for drug offenses.  The parties, including Petitioner, Nadima Bibi, agreed to the consent judgment, which placed the wards under the joint care and custody of Respondent, Lorraine Wallace, and the wards’ nonparty maternal aunt.  The arrangement was for six months and subject to further terms and conditions.  Shortly thereafter, the ward’s father died and their mother was incarcerated in a Florida county jail.
 
Petitioner asked the probate court to appoint her as the wards’ full guardian.  And in a cross-petition, Respondent also asked to be appointed as the wards’ guardian.  The probate court determined that Petitioner’s request was barred by collateral estoppel and res judicata arising from the Canadian consent judgment.  Petitioner appealed and the circuit court affirmed.  The Court of Appeals applied Michigan law to determine whether the Canadian consent judgment should be given preclusive effect.  Petitioner argued that the probate court erred when it applied collateral estoppel to bar her petition.  Collateral estoppel is intended to relieve parties of multiple litigation and does not apply to consent judgments when factual issues are not tried.  The court held that the probate court erred when it applied collateral estoppel because the consent judgment was merely an agreement between the parties, and the issues involved were not identical to the current petition.
 
Furthermore, Petitioner argued that the probate court also erred when it applied res judicata to bar her petition.  Res judicata precludes a claim when: (1) the prior action was decided on the merits, (2) both actions involve the same parties and their privies, and (3) the matter in the second case was, or could have been, resolved in the first.  Res judicata applies to consent judgments but not orders granting temporary relief.  The court opined that the consent judgment was clearly not intended to be the “last word” of the Canadian court.  Additionally, the court concluded that even if the consent judgment could be characterized as a final decision, res judicata does not bar a subsequent action when the facts have changed or new facts have developed.  Since the Canadian proceeding, the wards’ father died, their mother was imprisoned, and the wards began to reside in Wayne County, causing Michigan law to displace Ontario law.  Therefore, the court held that given the changed circumstances, it was error for the probate court to apply res judicata to bar the petition.
 
Also, Petitioner argued that the probate judge made several comments about her wealth that warrant reassignment on remand.  The court agreed that the judge’s comments were inappropriate, but concluded that it does not warrant a reassignment and reassignment is not necessary to preserve the appearance of justice.  As a result, the court reversed the decisions of the circuit and probate courts, and remanded for further proceedings.

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