Altman v. Nelson

• Decision Date: 21 December 1992
• Docket Number: Docket No. 149244
• Citation: 495 N.W.2d 826,197 Mich.App. 467
• Parties: Thomas Aaron ALTMAN, Plaintiff-Appellant, v. Vicky NELSON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 826

495 N.W.2d 826

197 Mich.App. 467

Thomas Aaron ALTMAN, Plaintiff-Appellant, v. Vicky NELSON, Defendant-Appellee.

Docket No. 149244.

Court of Appeals of Michigan.

Submitted July 7, 1992, at Grand Rapids.

Decided Dec. 21, 1992, at 9:00 a.m.

Released for Publication March 18, 1993.

Kevin J. Kozma, White Cloud, for plaintiff-appellant.

Springstead & Jaunese, P.C. by Douglas A. Springstead, Fremont, for defendant-appellee.

Before DOCTOROFF, C.J., and REILLY and JANSEN, JJ.

REILLY, Judge.

This matter began as a paternity action and eventually evolved into a custody dispute. Plaintiff, Thomas A. Altman, now appeals as of right from a Newaygo Circuit Court order setting aside the order of filiation and dismissing his child custody petition for lack of jurisdiction. We reverse.

The pertinent facts are undisputed. On January 20, 1988, plaintiff filed a complaint pursuant to the Paternity Act, M.C.L Sec. 722.711 et seq.; M.S.A. Sec. 25.491 et seq., requesting blood tests and seeking a declaration that he was the biological father of the female child born to defendant, Vicky Nelson, on March 29, 1983. Plaintiff asserted that "at the time of said birth, Defendant was and remains an unmarried woman." The child was residing with defendant.

In her answer, defendant denied that she was an unmarried woman at the time of the child's birth or thereafter. In support of her denial, defendant submitted a copy of a marriage license indicating that she was married to Gregory L. Nelson on November 14, 1981. Defendant also attached a copy of the child's birth certificate identifying Gregory Nelson and defendant as the parents. Defendant requested that the case be dismissed or, in the alternative, if an order of filiation was entered, that plaintiff be ordered to pay confinement expenses and child support. Defendant did not otherwise raise the issue of standing.

Paternity blood testing showed the probability of plaintiff being the father was 99.95 percent. An order was entered on November 2, 1988, declaring plaintiff to be the legal father of the child. In that order, the trial court stated that the parties agreed to a settlement of the other issues, and therefore granted legal custody to both parties, with physical custody to defendant. Plaintiff was given visitation rights and ordered to pay support. The trial judge never addressed the issues of marital status and standing. The order of filiation was not appealed.

Plaintiff filed a petition for transfer of child custody in the paternity action on December 28, 1989, alleging that defendant was living with an unrelated adult male, she was not married, and she had "in essence abandoned the minor child in favor of Greg Nelson." Defendant opposed the petition and responded that the man she was living with was Gregory Nelson, her husband, who was the "legal and equitable father" of the child.

However, on January 10, 1991, defendant agreed to relinquish custody. Pursuant to defendant's stipulation, the trial court entered an order on January 11, 1991, transferring physical custody of the child to the plaintiff. The child then lived with plaintiff continuously until the trial court, on February 19, 1992, granted defendant's motion to dismiss the case for want of jurisdiction.

At the hearing on defendant's motion, the trial court, relying on Girard v. Wagenmaker, 437 Mich. 231, 470 N.W.2d 372 (1991), determined that plaintiff did not have standing in the paternity action. The court admitted its error in failing to consider defendant's marital status and plaintiff's standing before it entered the filiation order. The court acknowledged that the plaintiff was granted custody only as a result of the determination of filiation. If the filiation order had been properly denied, the court stated, the plaintiff would not have had standing to seek physical custody, either as the noncustodial parent or as a third party having physical custody of the child. The trial court concluded, therefore, that all previous orders including the order of filiation and the order awarding physical custody to the plaintiff should be declared void ab initio for lack of jurisdiction. The court vacated its prior orders and entered an order that the child be returned immediately to the defendant.

The plaintiff appealed. This Court ordered a stay of proceedings in the trial court and restored custody to plaintiff pending the appeal.

On appeal, plaintiff contends the issue of standing was waived because defendant never challenged plaintiff's standing in the paternity action or in the custody proceeding, either by affirmative defense or by a motion for summary disposition under MCR 2.116(C)(5). Plaintiff further contends that the circuit court, having subject-matter jurisdiction over custody disputes, erred when it ruled that plaintiff did not have standing to petition for the change in custody.

The plaintiff argues that, even if he did not have standing as the biological father, he did have standing as a third person who was given physical custody of the child voluntarily on January 10, 1991. Plaintiff relies on Duong v. Hong, 191 Mich.App 462, 478 N.W.2d 922 (1991), which held that a third party with whom a child resides has standing to bring an action for custody of that child in circuit court. Id. at 465-466, 478 N.W.2d 922. However, our Supreme Court reversed this Court's decision in Duong, holding that a third party does not gain standing to petition for custody by reason of the fact that the child resides with the third party. Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992).

Our review of this case convinces us that the real issue presented is whether the circuit court properly determined that it did not have jurisdiction to enter the order of filiation because plaintiff did not have standing, the allegations in the paternity complaint being untrue.

Subject-matter jurisdiction and standing are not the same thing. Jurisdiction of the subject matter is the right of the court to exercise judicial power over a class of cases, not the particular case before it; to exercise the abstract power to try a case of the kind or character of the one pending. Joy v. Two-Bit Corp., 287 Mich. 244, 253-254, 283 N.W. 45 (1938); In re Waite, 188 Mich.App. 189, 199, 468 N.W.2d 912 (1991). The question of jurisdiction does not depend on the truth or falsity of the charge, but upon its nature: it is determinable on the commencement, not at the conclusion, of the inquiry. Fox v. Martin, 287 Mich. 147, 152, 283 N.W. 9 (1938); Waite, supra 188 Mich.App. at 199, 468 N.W.2d 912. Jurisdiction always depends on the allegations and never upon the facts. When a party appears before a judicial tribunal and alleges that it has been denied a certain right, and the law has given the tribunal the power to enforce that right, if the adversary has been notified, the tribunal must proceed to determine the truth or falsity of the allegations. The truth of the allegations does not constitute jurisdiction. Id.

There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal. This fundamental distinction runs through all the cases. Jackson City Bank & Trust Co. v. Fredrick, 271 Mich. 538, 544, 260 N.W. 908 (1935); Bowie, supra 441 Mich. at 49, 490 N.W.2d 568. When there is a want of jurisdiction over the parties or the subject matter, no matter what formalities may have been taken by the trial court, the action is void because of its want of jurisdiction. Consequently, its proceedings may be questioned collaterally as well as on direct appeal. Jackson, supra.

Where jurisdiction of the subject matter and the parties exist, errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, do not render the judgment void; until the judgment is set aside, it is valid and binding for all purposes and cannot be collaterally attacked. Once jurisdiction of the subject matter and the parties is established, any error in the determination of questions of law or fact upon which the court's jurisdiction in the particular case depends is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon the correctness of the determination made. Jackson, supra 271 Mich. at 545-546, 260 N.W. 908; Waite, supra 188 Mich.App. at 200, 468 N.W.2d 912.

If the court has jurisdiction of the parties and of the subject matter, it also has jurisdiction to make an error. Buczkowski v. Buczkowski, 351 Mich. 216, 221, 88 N.W.2d 416 (1958).

The loose practice has grown up, even in some opinions, of saying that a court had no "jurisdiction" to take certain legal action when what is actually meant is that the court had no legal "right" to take the action, that it was in error. If the loose meaning were correct, it would reduce the doctrine of res judicata to a shambles and provoke endless litigation, since any decree or judgment of an erring tribunal would be a mere nullity. [Id. at 222, 88 N.W.2d 416.]

Subject-matter jurisdiction over paternity actions has been conferred by statute on the circuit court. M.C.L. Sec. 722.714(3); M.S.A. Sec. 25.494(3). Syrkowski v. Appleyard, 420 Mich. 367, 375, 362 N.W.2d 211 (1985). The circuit court also has subject-matter jurisdiction of custody disputes pursuant to the Child Custody Act. M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq.; Bowie, supra 441 Mich. at 52, 490 N.W.2d 568.

This case is distinguishable from Stamadianos v. Stamadianos, 425 Mich. 1, 385 N.W.2d 604 (1986), cited by defendant in support of the trial court's finding of lack of jurisdiction. In Stamadianos, the parties were granted a consent default judgment of divorce. In...