Hawkins v. Murphy

Decision Date11 April 1997
Docket Number160160 and 160161,180134,Docket Nos. 157674
Citation565 N.W.2d 674,222 Mich.App. 664
PartiesKelly Michelle HAWKINS, Plaintiff-Appellee, v. Sean Michael MURPHY, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Ronald J. Fabian, Jackson, for Kelly M. Hawkins.

Sean M. Murphy, in pro. per.

Before MARILYN J. KELLY, P.J., and NEFF and J. STEMPIEN *, JJ.

PER CURIAM.

Defendant appeals as of right from orders dated October 9, 1992 and December 19, 1992, and by leave granted from an order dated October 9, 1994. All three orders arose from the parties' ongoing post-divorce visitation dispute. We vacate the 1992 temporary restraining order (TRO) and the 1994 order suspending defendant's visitation and support, and remand for an evidentiary hearing to determine support and visitation based on the best interests of the child, Patrick Murphy.

I

The child was born on October 20, 1989. The parties were not married then and, pursuant to plaintiff's paternity complaint, an order of filiation was entered naming defendant as Patrick's father and ordering him to pay child support. The parties were married on September 18, 1990, but four months later plaintiff filed for divorce. A consent judgment of divorce was entered January 27, 1992, giving full custody of Patrick to plaintiff, but allowing defendant very liberal visitation, including four weeks during the summer and one week at Christmas and Easter.

In August, 1992, defendant kept Patrick after a weekend visit for one of the summer weeks of visitation to which he was entitled. He had repeatedly attempted to notify plaintiff without success of his intent to keep Patrick for the week. He also advised the Friend of the Court of his intentions and was informed that he could exercise a week of visitation. Plaintiff moved for a TRO against defendant, which was issued August 19, 1992, and filed parental kidnapping charges against him, which were later dismissed. Following a hearing at which plaintiff was required to show cause as to why she had not allowed defendant the visitation provided for in the judgment of divorce, the court issued an order on October 9, 1992, allowing defendant to exercise the three weeks of summer visitation he had been denied. However, it continued the August 19, 1992 restraining order, which prohibited defendant from interfering with plaintiff's physical possession of Patrick.

On October 9, 1992, another hearing was held with respect to several motions filed by defendant. Defendant sought dissolution of the TRO, and moved that plaintiff be required to pay his future attorney fees as his attorney had withdrawn from the case due to his inability to pay. In orders entered on December 18, 1992, the court denied defendant's motions.

On April 23, 1993, a hearing was held on plaintiff's motion to set aside the order of filiation and amend the judgment of divorce regarding defendant's paternity. Plaintiff claimed that defendant was not Patrick's father and that she married him only because he had threatened her. The motion was denied.

On June 11, 1993, defendant brought a motion for blood tests to determine Patrick's paternity. By stipulation of the parties, an order was entered for blood tests on July 30, 1993. On September 15, 1993, the results of the DNA blood analysis revealed that defendant was not Patrick's father. The court, in an order entered on October 19, 1994, suspended defendant's visitation rights and support obligations. 1

II

Defendant's first claim on appeal is that the issuance of the TRO on August 19, 1992, was improper and that he was denied due process. We need not reach the constitutional issue, because we find that the TRO as issued did not comply with the requirements of MCR 3.310(B)(1).

MCR 3.310(B)(1) provides:

(1) A temporary restraining order may be granted without written or oral notice to the adverse party or the adverse party's attorney only if

(a) it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice or from the risk that notice will itself precipitate adverse action before an order can be issued;

(b) the applicant's attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required; and

(c) a permanent record or memorandum is made of any nonwritten evidence, argument, or other representations made in support of the application.

Here, the record reveals that plaintiff's attorney failed to certify to the court in writing the reasons supporting the claim that notice should not be required. Nor did the TRO state on its face the reason why it was granted without notice, as required by MCR 3.310(B)(2)(b). Because the requirements of the court rule were not complied with, the order was improperly granted. Acorn Building Components, Inc. v. UAW Local 2194, 164 Mich.App. 358, 364, 416 N.W.2d 442 (1987).

In addition, the trial court's order denying defendant's motion to dissolve the TRO was arbitrary. At the hearing on defendant's motion, the court did not state the reason why it found continuation of the TRO necessary. The parental kidnapping charges had been dismissed and no evidence was introduced to demonstrate that defendant ever intended to interfere with plaintiff's possession of Patrick. The court abused its discretion by denying defendant's motion to dissolve the order in the absence of any articulated justification. We need not address defendant's claim that the continuation of the TRO effectively modified visitation, because the issue was not raised below.

III

Defendant's next claim of error is that the trial court abused its discretion in denying his motion for attorney fees. We will not reverse the trial court's decision to award or deny attorney fees in a divorce action absent an abuse of discretion. Heike v. Heike, 198 Mich.App. 289, 294, 497 N.W.2d 220 (1993).

A court may award a party in a divorce action "any sums necessary to enable the ... party to carry on or defend the action, during its pendency." M.C.L. § 552.13(1); M.S.A. § 25.93(1). An award of legal fees in a divorce action is authorized when it is necessary to enable the party to carry on or defend the suit. MCR 3.206(C)(2); Maake v. Maake, 200 Mich.App. 184, 189, 503 N.W.2d 664 (1993). They may also be awarded when the party requesting payment has been forced to incur them as a result of the other party's unreasonable conduct in the course of the litigation. Stackhouse v. Stackhouse, 193 Mich.App. 437, 445, 484 N.W.2d 723 (1992).

At the time of defendant's motion, both parties were students. Plaintiff was receiving Aid to Families with Dependent Children. Defendant had been offered pro bono representation and had expressly rejected it at the show cause hearing on August 14, 1992. Although defendant contends that plaintiff concealed assets and income, no evidence was produced to support such allegations. Moreover, because defendant could have accepted pro bono legal assistance, even if plaintiff's actions could be characterized as unreasonable, they could not have resulted in the incurrence of attorney fees by defendant. Under these circumstances, a denial of attorney fees cannot be characterized as an abuse of discretion. Maake, supra. 2

IV

Defendant next contends that the trial court erred when it refused to enforce the release of claims provision in the judgment of divorce. Plaintiff had released defendant from her claim to child support under the order of filiation. We find no evidence in the lower court record demonstrating that the support obligations under the order of filiation were enforced in addition to the support provided for in the judgment of divorce. This Court's review is limited to the record on appeal; we will not consider allegations not supported by the record presented. Band v. Livonia Associates, 176 Mich.App. 95, 103-104, 439 N.W.2d 285 (1989).

V

With respect to the issues of paternity and visitation, we find that reversal is required in this case, because the trial court committed clear legal error when it failed to consider the res judicata effect of the order of filiation and judgment of divorce. Moreover the court failed to consider the best interests of the child before suspending defendant's visitation and support. M.C.L. § 722.27a; M.S.A. § 25.312(7a).

The trial court should not have permitted the issue of paternity to be raised when the parties had had a full and fair opportunity to litigate the issue in the paternity and divorce proceedings. Under the broad application of res judicata which Michigan courts employ, the parties cannot raise the issue of paternity if it has already been conclusively determined in a prior adjudication. Hackley v. Hackley, 426 Mich. 582, 585 (Boyle, J.), 599 (Brickley, J.), 395 N.W.2d 906 (1986).

In this case, the court specifically adjudged defendant to be Patrick's father through an order of filiation entered in a paternity action. The parties' judgment of divorce referred to Patrick as their child and established defendant's duty of support. Plaintiff brought motions in April of 1993 to vacate the order of filiation and amend the judgment of divorce before the trial court, both of which were denied; no appeal was taken. Consequently, there can be no dispute that the order of filiation and the judgment of divorce are final judgments entitled to preclusive effect under the doctrine of res judicata.

Furthermore, the...

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