Frame v. Nehls

• Citation: 208 Mich.App. 412,528 N.W.2d 773
• Decision Date: 17 January 1995
• Docket Number: Docket No. 168015
• Parties: Gina E. FRAME, a/k/a Gina E. Stephens, Plaintiff-Appellee, v. Jay J. Franklin NEHLS, Defendant, and Stephen Nehls, Appellant.
• Court: Court of Appeal of Michigan (US)

Page 773

528 N.W.2d 773

208 Mich.App. 412

Gina E. FRAME, a/k/a Gina E. Stephens, Plaintiff-Appellee, v. Jay J. Franklin NEHLS, Defendant and Stephen Nehls, Appellant.

Docket No. 168015.

Court of Appeals of Michigan.

Submitted Dec. 6, 1994, at Grand Rapids.

Decided Jan. 17, 1995, at 10:20 a.m.

Released for Publication March 21, 1995.

Miller, Johnson, Snell & Cummiskey by Harry Contos, Jr., Kalamazoo, for Gina E. Framme.

Richard D. Stroba, Kalamazoo, for Stephen Nehls.

Before: MICHAEL J. KELLY, P.J., and CONNOR and GRAVES, ^* JJ.

CONNOR, Judge.

Stephen Nehls (hereafter "appellant") appeals as of right from the trial court's order awarding summary disposition in favor of plaintiff and dismissing appellant's petition for grandparent visitation rights with his grandson, Dustin. Appellant is the paternal grandfather of Dustin, who was born out of wedlock to plaintiff Gina E. Frame and defendant Jay J. Franklin Nehls. We reverse and remand.

Dustin was born in March of 1991. In May of 1993, defendant was adjudicated Dustin's father, ordered to support him, and granted visitation.

After the trial court determined that Jay Nehls was Dustin's father, appellant moved for grandparent visitation rights with the child. The trial court granted summary disposition in favor of plaintiff on the grounds that Nelson v. Kendrick, 187 Mich.App. 367, 466 N.W.2d 402 (1991), precludes the award of grandparent visitation in a paternity action. On appeal, appellant claims that Nelson was wrongly decided and the provision of the Child Custody Act, M.C.L. § 722.27b; M.S.A. § 25.312(7b), upon which it relied violates equal protection. We agree.

Grandparent visitation rights are expressly created by statute as part of the Child Custody Act, M.C.L. § 722.27b; M.S.A. § 25.312(7b), which provides in part:

(1) Except as provided in this subsection, a grandparent of the child may seek an order for visitation in the manner set forth in this section only if a child custody dispute with respect to that child is pending before the court....

* * * * * *

(3) A grandparent seeking a grandchild visitation order may commence an action for grandchild visitation, by complaint or complaint and motion for an order to show cause, in the circuit court in the county in which the grandchild resides.... A grandchild visitation order shall not be entered for the parents of a putative father unless the father has ... been adjudicated to be the father by a court of competent jurisdiction....

We believe the above-quoted language indicates that grandparent visitation is statutorily recognized in paternity actions.

In Nelson, the trial court entered a stipulated order establishing paternity, visitation, and support, and allowing visitation by grandparents. Nelson, supra, at 369, 466 N.W.2d 402. However, when the grandparents attempted to enforce the visitation order, the trial court ruled that it had no jurisdiction over the issue of the grandparent visitation at the time it entered the original order and that, "inasmuch as it addressed grandparent visitation rights, the original order was void for lack of jurisdiction." Id. On appeal, this Court concluded that the trial court had ruled properly because the father's action to determine paternity did not constitute a child custody dispute as defined by § 7b. Id. at 370-371, 466 N.W.2d 402.

Nelson did not address language in M.C.L. § 722.27b(3); M.S.A. § 25.312(7b)(3) dealing with grandchild visitation for the parents of a putative father. Because Nelson failed to address a statutory section needed for full consideration of the issue, Administrative Order No. 1994-4 is not controlling and we are not bound by Nelson.

Equal protection of the law is guaranteed by the federal and state constitutions. U.S. Const., Am. XIV; Const.1963, art. 1, § 2. The constitutional guarantee of equal protection requires that persons in similar circumstances be treated alike. El Souri v. Dep't of Social Services, 429 Mich. 203, 207, 414 N.W.2d 679 (1987). When a legislative classification is challenged as being violative of equal protection, the standard utilized to determine its validity depends on the type of classification and the nature of the interest affected. Dep't of Civil Rights ex rel. Forton v. Waterford Twp., 425 Mich. 173, 190, 387 N.W.2d 821 (1986).

Classifications based on illegitimacy are subject to intermediate or "heightened" scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988); and see Gerhardt v. Estate of Moore, 150 Wis.2d 563, 441 N.W.2d 734 (1989) (statutory scheme similar to Michigan's statute invalidated on equal protection grounds). The Equal Protection Clause of the Michigan Constitution provides the same level of protection as the federal counterpart. Doe v. Dep't of Social Services, 439 Mich. 650, 672, 487 N.W.2d 166 (1992). Under intermediate scrutiny, the statutory classification must be substantially related to an important governmental interest. Clark, supra, 486 U.S. at 461, 108 S.Ct. at 1914; and see Dep't of Civil Rights, supra, 425 Mich. at 191, 387 N.W.2d 821.

We find that Nelson's interpretation of § 7b deprives appellant of equal...