2.10​Trial Court’s Authority After Appeal

A.​District Courts and Agencies

Jurisdiction vests in the circuit court after a claim of appeal is filed or leave to appeal is granted. MCR 7.107. “After a claim of appeal is filed [with the circuit court] or leave to appeal is granted [by the circuit court], jurisdiction vests in the circuit court.” Id. “The trial court or agency may not set aside or amend the judgment, order, or decision appealed except by circuit court order or as otherwise provided by law. In all other respects, the authority of the trial court or agency is governed by MCR 7.208(C) through [MCR 7.208](I).”³⁶ MCR 7.107.

For more information on circuit court appeals, see the Michigan Judicial Institute’s Appeals & Opinions Benchbook, Chapter 2.

B.​Trial Courts (Exclusive of District Court and Agencies)

Filing the entry fee and a claim of appeal from a final judgment in the circuit court transfers jurisdiction to the Court of Appeals in an appeal of right, except as otherwise provided in MCR 3.993(D)(3) and MCR 6.425(G)(1). MCR 7.204(B); MCL 600.308. See also Michigan State Emp Ass’n v Civil Serv Comm, 177 Mich App 231, 245 (1989). The lower court reacquires jurisdiction when the clerk returns the record to it. Dep’t of Conservation v Connor, 321 Mich 648, 654 (1948); Luscombe v Shedd’s Food Products Corp, 212 Mich App 537, 541 (1995). See MCR 7.210(H)-(J.).

“After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from except

(1) by order of the Court of Appeals,

(2) by stipulation of the parties,

(3) after a decision on the merits in an action in which a preliminary injunction was granted, or

(4) as otherwise provided by law.” MCR 7.208(A).

See also Wiand v Wiand, 205 Mich App 360, 369-370 (1994) (holding that “the trial court properly found that it lacked jurisdiction to grant plaintiff’s motion [to amend her complaint and add a claim] under MCR 7.208(A) because a claim of appeal had already been filed from the order of dismissal”).

The statutes authorizing a trial court to amend child and spousal support orders after the entry of judgment if circumstances require, MCL 552.17(1) and MCL 552.28, satisfy the “as otherwise provided by law” exception in MCR 7.208(A)(4). Lemmen v Lemmen, 481 Mich 164, 167 (2008). The “as otherwise provided by law” exception in MCR 7.208(A)(4) is applicable to custody situations. Safdar v Aziz, 501 Mich 213, 219 (2018) (holding the reasoning of Lemmen, 481 Mich at 167, extends to custody issues because MCL 722.27(1) of the Child Custody Act authorizes the trial court to modify or amend its previous orders).

“Except as otherwise provided by rule and until the record is filed in the Court of Appeals, the trial court or tribunal has jurisdiction

(1) to grant further time to do, properly perform, or correct any act in the trial court or tribunal in connection with the appeal that was omitted or insufficiently done, other than to extend the time for filing a claim of appeal or for paying the entry fee or to allow delayed appeal;

(2) to correct any part of the record to be transmitted to the Court of Appeals, but only after notice to the parties and an opportunity for a hearing on the proposed correction.

After the record is filed in the Court of Appeals, the trial court may correct the record only with leave of the Court of Appeals.” MCR 7.208(C).

“The probate court retains continuing jurisdiction to decide other matters pertaining to the proceeding from which an appeal was filed.” MCR 7.208(D).

“When an appeal is filed while property is being held for conservation or management under the order or judgment of the trial court, that court retains jurisdiction over the property pending the outcome of the appeal, except as the Court of Appeals otherwise orders.” MCR 7.208(E).

“A trial court order entered before final judgment concerning custody, control, and management of property; temporary alimony, support or custody of a minor child, or expenses in a domestic relations action; or a preliminary injunction, remains in effect and is enforceable in the trial court, pending interlocutory appeal, except as the trial court or the Court of Appeals may otherwise order.” MCR 7.208(F).

“The trial court retains authority over stay and bond matters, except as the Court of Appeals otherwise orders.” MCR 7.208(G). Generally, the trial court can still enforce its orders unless there is a stay. See MCR 7.209(A)(1). The trial court must first address a motion for bond or stay of proceedings before a party can file such a motion with the Michigan Court of Appeals. MCR 7.209(A)(2).

“Throughout the pendency of an appeal involving an indigent person, the trial court retains authority to appoint, remove, or replace an attorney except as the Court of Appeals otherwise orders.” MCR 7.208(H).