Burnett v. Ahola

Decision Date07 October 2021
Docket Number356502,356505
PartiesNICHOLAS DAVID BURNETT, Plaintiff-Appellee, v. TRACY LYNN AHOLA, Defendant-Appellant, and DEREK AHOLA, Defendant. NICHOLAS DAVID BURNETT, Plaintiff-Appellee, v. TRACY LYNN AHOLA, Defendant, and DEREK AHOLA, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US


Genesee Circuit Court LC Nos. 14-312262-DP, 14-312262-DP

Before: Jane M. Beckering, P.J., and Douglas B. Shapiro and Brock A. Swartzle, JJ.


In these consolidated appeals[1] regarding disputed parentage, in Docket No. 356502, defendant, Tracy Lynn Ahola, appeals as of right the opinion and order of the trial court finding that plaintiff, Nicholas David Burnett, committed intrinsic fraud and fraud on the court during a previous bench trial, holding him in contempt of court, fining him $7, 500, and ordering him to pay 25% of Tracy Ahola's attorney fees accrued since she first moved for relief from the judgment previously issued under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq. In Docket No. 356505, defendant Derek Ahola, appeals as of right the same opinion and order of the trial court, which did not award Derek Ahola any attorney fees. We affirm in part, vacate in part, and remand for further proceedings consistent with the limited instructions in this opinion.


This case has a lengthy and acrimonious procedural and appellate history. This case arose, in 2014, out of a dispute regarding the parentage of JDA. "JDA was conceived while [plaintiff] and Tracy [Ahola] were engaged in an extramarital sexual relationship . . . ." Burnett v Ahola, unpublished per curiam opinion of the Court of Appeals, issued May 26, 2016 (Docket No. 330311) (Burnett I), p 1. Plaintiff sued under the ROPA, which allows an "alleged father" to challenge the paternity of a "presumed father" when the "alleged father" "did not know or have reason to know that the mother was married at the time of conception." MCL 722.1441(3)(a). "[A] significant factual dispute in the trial court was whether [plaintiff] was aware at the time [of conception] that Tracy [Ahola] had not divorced Derek [Ahola] as [plaintiff] claimed Tracy [Ahola] had told him." Burnett I, unpub op at 1. During the ROPA trial, evidence was presented from various witnesses that essentially established plaintiff actually believed Tracy Ahola was divorced at the time of conception of JDA. The trial court believed that evidence, issued a ROPA judgment, and entered an order of filiation establishing plaintiff as JDA's father. The parties do not dispute that plaintiff is JDA's biological father. On appeal, a panel of this Court affirmed the trial court's rulings. Id. at 5.

In a subsequent appeal, Burnett v Ahola, unpublished per curiam opinion of the Court of Appeals, issued December 7, 2017 (Docket No. 338618) (Burnett II), pp 1-3, vacated in part and remanded 501 Mich. 1055 (2018), this Court summarized the proceedings that occurred back before the trial court:

Subsequently, the trial court entered another parenting time order on July 6, 2016, increasing plaintiff's parenting time with JDA. Then, on September 30, 2016, the parties entered into a stipulated custody and parenting time agreement. That stipulated order provided that plaintiff and Tracy [Ahola] would share legal and physical custody of JDA.
Less than one month later, on October 24, 2016, defendants moved the trial court for relief from the trial court's ROPA judgment. Defendants argued that during the ROPA bench trial, plaintiff committed fraud or misconduct against an adverse party pursuant to MCR 2.612(C)(1)(c), and fraud on the court itself pursuant to MCR 2.612[(C)](3). Defendants relied on recorded conversations between Tracy [Ahola] and plaintiff, which allegedly contained statements from plaintiff that he lied and got witnesses to lie on his behalf at trial. Defendants provided transcribed excerpts from the conversations, which defendants alleged occurred on June 1, 2016, June 8, 2016, and June 27, 2016. In light of the recordings, defendants requested that the trial court vacate its ROPA judgment and order, dismiss the case with prejudice, and enter an order for plaintiff to show cause why he should not be held in contempt of court and have his case referred to the Michigan State Police.

After considering the parties' arguments, the trial court ultimately denied the relief requested by defendants, noting that the delay in presenting evidence of plaintiff's fraud and the stipulated order for joint custody and equal parenting time amounted to an implied waiver by defendants. On appeal, a panel of this Court agreed with that reasoning and affirmed, holding that "in settling the issue of custody and expanding plaintiff's role in JDA's life, defendants' actions showed that they were prepared to move on from the issue of paternity and begin working toward a coparenting relationship." Burnett II, unpub op at 6-7. Our Supreme Court then entered an order vacating the portions of this Court's opinion regarding waiver of the fraud issues and remanded to this Court with instructions to remand to the trial court for an evidentiary hearing while maintaining jurisdiction. Burnett v Ahola, 501 Mich. 1055 (2018). This Court entered that order on May 1, 2018.[2]

During the remand proceedings, the trial court declined to accept additional evidence of plaintiff's alleged fraud, and instead, determined that because defendants could have discovered the perjury and suborned perjury at the time of the ROPA trial, it was not newly discovered evidence, and thus, defendants were not entitled to relief from the ROPA judgment. In defendants' third appeal to this Court, this Court affirmed. Burnet v Ahola (On Remand), unpublished per curiam opinion of the Court of Appeals, issued August 30, 2018 (Docket No. 338618) (Burnett III), pp 7-12, reversed and remanded 503 Mich. 941 (2019). Once again, our Supreme Court disagreed and entered an order reversing this Court's opinion in Burnett III, vacating the trial court's order, and remanding to the trial court. Burnett v Ahola, 503 Mich. 941 (2019). Our Supreme Court held that plaintiff's arguments regarding waiver and collateral estoppel did not apply to the case. Id. Thus, our Supreme Court once again remanded to the trial court, this time instructing the trial court to "(1) conduct an in-person evidentiary hearing to determine whether the plaintiff committed intrinsic fraud or fraud on the court during the ROPA proceedings, which shall include consideration of relevant evidence discovered after entry of the ROPA judgment; and (2) if so, determine to what, if any, remedy the defendants are entitled." Id.

After additional motion practice, discovery, and interlocutory appeals, [3] the trial court held a two-day evidentiary hearing commencing on January 21, 2021. The trial court accepted testimony from plaintiff, Tracy Ahola, Derek Ahola, and other witnesses who did or could have testified during the ROPA trial. The trial court also admitted the recorded conversations, and the transcripts of those conversations, as evidence. Tracy Ahola testified that she believed plaintiff was being serious in the recordings when he said he perjured himself, suborned perjury, and attempted to bribe various members of the judicial system. For his part, plaintiff testified that he was "trolling" Tracy Ahola, which he explained as a way to try to upset someone on purpose by using exaggeration and lies. Plaintiff testified that no reasonable person would believe his outrageous claims in the recordings were actually true. Tracy Ahola, Derek Ahola, and plaintiff also testified regarding what they believed would be in JDA's best interests, should the trial court determine plaintiff committed intrinsic fraud or fraud on the court.

The trial court considered the evidence and invited the parties to file written explanations of their proposed findings of fact and conclusions of law. After considering those written documents as well, the trial court issued its opinion and order, in which if found plaintiff had committed both intrinsic fraud and fraud on the court. The trial court held plaintiff in contempt and ordered him to pay a fine of $7, 500. As to the fraud, the trial court ordered plaintiff to pay 25% of Tracy Ahola's attorney fees as a sanction for the misconduct. The trial court declined to vacate the ROPA judgment and revoke plaintiff's paternity of JDA after finding it would not be in JDA's best interests to do so. Defendants moved the trial court to reconsider its decision regarding the appropriate remedies for plaintiff's fraud, which the trial court denied. This appeal followed.


In originally challenging the trial court's ROPA judgment defendants moved for relief from judgment under MCR 2.612(C)(1)(c) and (C)(3). According to MCR 2.612(C)(1)(c), "On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds: . . . [f]raud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." Under MCR 2.612(C)(3), the trial court has the power to "set aside a judgment for fraud on the court."

Now on appeal defendants argue that the trial court abused its discretion by refusing to vacate the ROPA judgment and revoke plaintiff's paternity of JDA after determining plaintiff committed intrinsic fraud and fraud on the court. "This Court reviews a trial court's decision whether to set aside a judgment under MCR 2.612 for an abuse of discretion." Adler v Dormio, 309 Mich.App. 702 707; 872 N.W.2d 721 (2015). "A trial court has not abused its discretion if its decision results in an outcome...

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