Demski v. Petlick

Citation873 N.W.2d 596,309 Mich.App. 404
Decision Date05 March 2015
Docket NumberDocket No. 322193.
Parties DEMSKI v. PETLICK.
CourtCourt of Appeal of Michigan (US)

Burch & Banyon (by Kevin P. Banyon, Benton Harbor) for Joseph R. Demski.

Armstrong Betker and Schaeffer, PLC (by W. Brendan Neal), for Cassidie and Jeffrey Petlick.

Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.

BOONSTRA, P.J.

Defendants Cassidie Petlick and Jeffrey Petlick appeal by right the February 4, 2014 order of the trial court awarding joint legal custody of a minor child to Cassidie and to plaintiff Joseph Demski, awarding sole physical custody to Cassidie, and granting parenting time to plaintiff; defendants additionally appeal the August 29, 2013 order of filiation determining plaintiff's paternity of the child. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Jeffrey began a romantic relationship with Cassidie in 2006; that relationship ended in March 2010. Shortly thereafter, in April 2010, Cassidie began a romantic relationship with plaintiff. That relationship lasted approximately 4 ½ months, during which time plaintiff and Cassidie engaged in sexual relations. Jeffrey and Cassidie did not have sexual relations during the period of Cassidie's relationship with plaintiff.

In May 2010, Cassidie became pregnant. Plaintiff learned of the pregnancy in June 2010. Plaintiff testified that approximately three or four weeks later, he talked with Cassidie about getting married. In July 2010, while Cassidie was still in a relationship with plaintiff, Jeffrey learned that Cassidie was pregnant. Jeffrey acknowledged at trial that he always knew that the child was not his biological child and that plaintiff was the child's biological father.

In early August 2010, Cassidie's relationship with plaintiff ended, after which Cassidie and Jeffrey resumed their previous relationship. Plaintiff testified that he offered Cassidie financial and emotional assistance at that time, but that she rejected his help. Cassidie told plaintiff that he had no idea what it took to raise a child and that there was "no way" she was "going to hand her kid over to somebody like [plaintiff]." Plaintiff testified that he felt that Cassidie was pressuring him to back away from the situation.

In September or October 2010, Cassidie went to plaintiff's house to show him ultrasound photographs of the unborn child. Jeffrey (who was not present) testified that plaintiff acted as though he did not care to see the photographs and "grope[d]" Cassidie. Cassidie testified that during the first few minutes at plaintiff's house, she discovered that he was "highly under the influence," and that plaintiff tried to put his hands on her. Plaintiff denied touching or attempting to touch Cassidie when she stopped by his house to show him the photographs.

Jeffrey testified that, in late 2010, plaintiff told him that he wanted to "sign off" in regard to raising the child. Plaintiff and Cassidie sent a series of text messages to each other discussing the possibility of plaintiff signing away his rights in exchange for not being required to pay child support. Plaintiff acknowledged that, in November 2010, there was a brief period of time when he did not want to be involved with the child. Plaintiff testified that a few weeks later, he changed his mind. Plaintiff testified that he did not seriously consider walking out of the child's life, but that Cassidie's initial reluctance to receive his help discouraged him because he did not want the child to be raised in an environment with conflict. Jeffrey testified that, by the end of November 2010, he and Cassidie had decided that plaintiff was not going to be involved with the child.

Plaintiff obtained legal counsel who sent Cassidie a letter on January 13, 2011, indicating that plaintiff had retained counsel "in order to assist and facilitate his involvement with prenatal doctor's appointments as well as the birth of your daughter" and to assist in establishing paternity "as well as an eventual custody/parenting time arrangement." The letter also referred to plaintiff's desire to be present at the birth of the child. Cassidie did not contact plaintiff after she received the letter. Cassidie testified that she did not take the letter seriously, because five weeks earlier, plaintiff had told her that he wanted to sign away his rights.

In late January 2011, at approximately 2:30 p.m. or 3:00 p.m., Cassidie's water broke. At approximately 5:30 p.m. or 6:00 p.m. the same day, Jeffrey and Cassidie were married. At trial, Jeffrey testified that he and Cassidie had intended to get married on a date in February 2011, but altered this plan when it became apparent that the child would be born before that date. Jeffrey testified that they wanted to be married before the child was born so that the child would be born as a legitimate child into a family with a married mother and father. Cassidie testified that it was important not to have the child out of wedlock because she wanted to ensure that the child had a family. At approximately 7:00 p.m. on the date that Jeffrey and Cassidie were married, and while they were waiting for the child to be born, plaintiff arrived at the hospital and waited in the waiting room for approximately two or three hours before leaving.

The child, MP, was born the next day. On the day after the birth, Cassidie invited plaintiff to the hospital. Jeffrey testified that at that point he and Cassidie had decided that plaintiff could be involved in MP's life. Plaintiff visited MP at that time and held her for four hours. Cassidie testified that while plaintiff was at the hospital, she told him to " [g]ive us a few days, let us get settled and we'll get ahold of you.’ " According to plaintiff, Cassidie told him when he left the hospital that she would stay in contact with him. Plaintiff asked Cassidie to inform him of how MP's first doctor visit went, but Cassidie did not contact him about the visit.

Within a day or two after MP was born, according to plaintiff, Cassidie and Jeffrey told him via text messages to " ‘back off or further action would be taken.’ " According to Cassidie, she told plaintiff that " ‘you're driving us crazy. Give us a few days[.] " Other than by text messages, Jeffrey and Cassidie did not hear from plaintiff between MP's birth and April or May 2011. Jeffrey and Cassidie testified that after they did not hear from plaintiff, they considered the "door closed" on plaintiff's involvement in MP's life. Plaintiff testified that he was told by Jeffrey and Cassidie that he needed to "back off" or that they would pursue a restraining order or a personal protection order (PPO) against him. Plaintiff said that when he told his attorney of Jeffrey's and Cassidie's threats, his attorney advised him to stay away from them. Jeffrey testified to looking into obtaining a PPO, although it does not appear that one was ever issued.

Later in February 2011, Jeffrey and Cassidie went shopping with MP at Sam's Club. While at the store, MP suffered apnea

and stopped breathing. Jeffrey and Cassidie took MP to a series of hospitals for treatment. Jeffrey testified that, as a result of that experience, he solidified his bond with MP.

On June 19, 2011, Jeffrey sent a Facebook message to plaintiff telling him: "Just do all of us a favor and go on with your life!!!!! We chose the best situation for [MP]!!!! And for you to say I am desperate? ? ? ? You can go f––– yourself!!! Every one Has [sic] made mistakes, and the biggest one Cassidie ever made is with your dumba—!!!!!"

On July 4, 2011, Cassidie and MP went to a festival in Eau Claire, Michigan. Cassidie testified that when she first arrived, plaintiff swerved at her vehicle while he was driving an ATV. Jeffrey (who again was not present) testified that, subsequently, plaintiff came up to Cassidie while she was pushing MP in a stroller and tried to take pictures of MP with his cellular telephone. According to Jeffrey, Cassidie "smacked" plaintiff's hand away. Cassidie testified that plaintiff walked up to her in an aggressive manner and tried to take pictures of MP. Cassidie said that plaintiff appeared to be "under the influence," and testified that she asked plaintiff several times to stop taking pictures. Plaintiff acknowledged that he tried to take a photograph of MP with his cellular telephone but denied acting in a threatening or aggressive manner toward Cassidie or MP.

After the incident at the festival, Jeffrey called plaintiff on July 4, 2011, and told him to stay away from Cassidie and MP because Cassidie was afraid of plaintiff. Also, Jeffrey told plaintiff that if he went near Cassidie, he would obtain a PPO against plaintiff. On August 2, 2011, Jeffrey sent a text message to plaintiff telling him to "[l]eave us alone!!!!!" Jeffrey told plaintiff, "[h]ave you not got the clue that we don't like you and we ALL don't want anything to do with you!!!!" Jeffrey also told plaintiff, " [s]he's not your daughter!!!! Get it through your dumba—brain!!!!!! She will never see you or come in contact with you!!!! Get over it!!!!!" On October 30, 2011, Jeffrey sent another text message to plaintiff telling him that " [y]ou will never see my daughter!!!!! Leave us alone."

On July 5, 2012, plaintiff filed his complaint in this action. Plaintiff's initial complaint, entitled "Complaint to Determine Parentage, Custody, Child Support, and Parenting Time"1 sought a declaration that he was MP's father (although it did not cite the statutory basis for such a determination, i.e., the Paternity Act, MCL 722.711 et seq., or the Revocation of Paternity Act (RPA), MCL 722.1431 et seq. ), joint physical and joint legal custody of MP, and a child support determination. Plaintiff alleged that he believed that he was MP's father, that Cassidie was denying his efforts to be involved in MP's life, and that he could provide MP with a stable living environment. Cassidie answered, denying that plaintiff was MP's...

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