DeVormer v. DeVormer

• Decision Date: 26 June 2000
• Docket Number: Docket No. 216986.
• Citation: 240 Mich. App. 601,618 N.W.2d 39
• Parties: Julie Kay DeVORMER a/k/a Julie Kay Gage, Plaintiff-Appellee, v. James Edwin DeVORMER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

618 N.W.2d 39

240 Mich. App. 601

Julie Kay DeVORMER a/k/a Julie Kay Gage, Plaintiff-Appellee, v. James Edwin DeVORMER, Defendant-Appellant.

Docket No. 216986.

Court of Appeals of Michigan.

Submitted January 4, 2000, at Grand Rapids.

Decided April 21, 2000, at 9:20 a.m.

Released for Publication June 26, 2000.

McKaig and Balice (by Lawrence P. McKaig), Ionia, for the plaintiff.

Law Group of Rademaker & Kelley, P.C. (by Amy M. Rademaker), Grand Rapids, for the defendant.

Before SAWYER, P.J., and GRIBBS and McDONALD, JJ.

PER CURIAM.

Defendant appeals by leave granted a circuit court order denying his motion for parenting time with his son pursuant to M.C.L. § 722.27a(5); MSA 25.312(7a)(5). We reverse and remand for the trial court to determine whether awarding parenting time to defendant would be in the best interest of the child.

The relevant facts are not disputed. Plaintiff and defendant were married in 1989. Plaintiff had a daughter from a previous marriage. Plaintiff and defendant had a son, Jacob, during their marriage, who is the child involved in the present dispute. Jacob was born January 15, 1992. On October 18, 1993, defendant pleaded guilty of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(a); MSA 28.788(3)(1)(a) (sexual contact with a person under thirteen) for acts involving plaintiff's daughter. Shortly thereafter, on November 17, 1993, plaintiff filed for divorce. While the divorce was pending, defendant was sentenced to four to fifteen years' imprisonment for his criminal sexual conduct conviction. The interim order for custody, visitation, and child support granted sole custody of Jacob to plaintiff and reserved the issue of visitation, noting that "visitation may be established upon [defendant's] release from incarceration by petition to the [c]ourt." The divorce judgment was entered June 17, 1994, and provided that defendant had "no present right of visitation" with his son and "no future visitation until approved by the [c]ourt."

Defendant was released from prison in December 1997. On February 17, 1998, he filed a motion seeking visitation with his son. Defendant alleged that while incarcerated he completed a twenty-four-month program of group psychotherapy for sex offenders with one hundred percent attendance and that he was continuing his counseling outside prison. Defendant also claimed that he had not received any misconduct tickets while incarcerated and that his parole agent was not opposed to defendant's seeking supervised parenting time with his son. Plaintiff opposed defendant's motion, alleging that defendant posed a danger to Jacob.

Defendant's motion was initially heard before a friend of the court referee. The referee brought M.C.L. § 722.27a(5); MSA 25.312(7a)(5) to the attention of the parties. This statute provides that if an individual is convicted of certain criminal sexual conduct crimes and the victim is "the individual's child," parenting time shall not be granted with the victim or a sibling of the victim without the consent of both the other parent and the child, if the child is of sufficient age to express the child's desires. Defendant argued that the statute did not apply because the criminal sexual conduct victim was not his child. However, the referee found that the statute applied because the victim was defendant's stepchild and because defendant was in loco parentis to her. The referee noted that at the time of the crime, the victim looked to defendant as a parent. The referee found it was clear that Jacob was a sibling of the victim. In light of plaintiff's refusal to consent to granting defendant parenting time with Jacob, the referee recommended denying defendant's motion under the statute.

Defendant filed objections to the referee's recommended order and a hearing de novo was held before the circuit court. The circuit court rejected defendant's arguments and found that the statute applied because defendant was in loco parentis to the victim. Moreover, the court found the statute was clearly intended to protect the sibling of the victim and that Jacob clearly was her sibling. The court also rejected defendant's argument that applying the statute in this case was an improper retroactive application of the statute.

Defendant raises the same arguments on appeal as he did in the lower court. We first address the application of the statute. The issue of statutory construction of subsection 5 of § 7a of the Child Custody Act is an issue of first impression. The subsection provides:

Notwithstanding other provisions of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of Act No. 328 of the Public Acts of 1931 and the victim is the individual's child, the court shall not grant parenting time with that child or a sibling of that child to that individual, unless both the child's other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the parenting time. [MCL 722.27a(5); MSA 25.312(7a)(5).]

Defendant admits that he has been convicted of an enumerated offense of criminal sexual conduct. The question is whether the victim of the offense of which he was convicted, defendant's stepdaughter, is his "child" under the statute. Subsection 5 does not define the term "child," but it is defined in § 2 of the Child Custody Act as "minor child and children." MCL 722.22(c); MSA 25.312(2)(c). This definition does not address the issue presented in this case.

Statutory interpretation is a question of law that this Court reviews de novo. In re Schnell, 214 Mich.App. 304, 310, 543 N.W.2d 11 (1995). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). The starting point in every case involving construction of a statute is the language itself. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993); Colbert v. Conybeare Law Office, 239 Mich. App. 608, 618, 609 N.W.2d 208 (2000). Nothing will be read into a statute that is not within the manifest intent of the Legislature as gathered from the act itself. In re S.R., 229 Mich.App. 310, 314, 581 N.W.2d 291 (1998). Accordingly, if the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the language as written. Rowell v. Security Steel Processing Co., 445 Mich. 347, 353, 518 N.W.2d 409 (1994); State Defender Union Employees v. Legal Aid & Defender Ass'n of Detroit, 230 Mich. App. 426, 431, 584 N.W.2d 359 (1998). Where the language employed by the Legislature is susceptible to more than one interpretation, judicial construction is justified. Rowell, supra at 353, 518 N.W.2d 409.

We do not believe the statutory language in this case is ambiguous. The Legislature specified that in order for the statute to apply, the child victim must be "the individual's child." The Legislature chose this narrow term rather than the broad terms it used to describe the relationship between the perpetrator and the victim in the criminal sexual conduct statutes. For example, the offense that defendant was convicted of in this case involves sexual contact. In this case, defendant was convicted of second-degree criminal sexual conduct because his actions involved a person under the age of thirteen. MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). However, a person may also be convicted of second-degree criminal sexual conduct when their victim is between the ages of thirteen and sixteen years old and "[t]he actor is a member of the same household as the victim," or "[t]he actor is related by blood or affinity to the fourth degree to the victim," or "[t]he actor is in a position of authority over the victim and the actor used this authority to coerce the victim to submit." MCL 750.520c(1)(b)(i), (ii), (iii); MSA 28.788(3)(1)(b)(i), (ii), (iii). The first-degree criminal sexual conduct statute, which involves sexual penetration, makes the same distinctions. MCL 750.520b; MSA 28.788(2). In addition, where the sexual penetration is with a person who is between the ages of thirteen and sixteen and these relationships do not exist between the perpetrator and the victim, the perpetrator is guilty of third-degree criminal sexual conduct, rather than first-degree criminal sexual conduct. MCL 750.520d(1)(...