Kaiser v. Schreiber

• Decision Date: 10 November 2003
• Docket Number: Docket No. 244428.
• Citation: 670 N.W.2d 697,258 Mich. App. 357
• Parties: Scott Stanley KAISER, Plaintiff-Appellant, v. Emily Marie SCHREIBER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

670 N.W.2d 697

258 Mich. App. 357

Scott Stanley KAISER, Plaintiff-Appellant, v. Emily Marie SCHREIBER, Defendant-Appellee.

Docket No. 244428.

Court of Appeals of Michigan.

Submitted March 11, 2003, at Grand Rapids.

Decided September 9, 2003, at 9:00 a.m.

Released for Publication November 10, 2003.

Kenneth T. Sanders, Grand Rapids, for the plaintiff.

Western Michigan Legal Services (by Pam Hoekwater), Grand Rapids, for the defendant.

Before: SCHUETTE, P.J., and SAWYER and WILDER, JJ.

SAWYER, J.

Plaintiff Scott S. Kaiser appeals from an order of the circuit court granting defendant Emily M. Schreiber summary disposition regarding plaintiff's child custody action. We reverse.

It is undisputed that the parties are the biological parents of Maria Jacqueline Schreiber, born on June 16, 1998. Both parties were married to other people at the time of Maria's conception and birth. On June 19, 2001, plaintiff filed the instant action seeking joint legal and physical custody of Maria. Defendant answered through counsel, admitting that plaintiff was Maria's father. The parties then stipulated a temporary order of custody, which granted the parties joint legal custody, defendant physical custody, and provided parenting time for plaintiff. Defendant, however, almost immediately resisted complying with the temporary order. Defendant's counsel withdrew after defendant began filing motions in propria persona to change the terms of the temporary order. Defendant retained new counsel, who moved for summary disposition on the basis that the trial court lacked authority to entertain a custody action where the mother was married at the time of the child's birth.¹ Plaintiff filed a motion for summary disposition, as well as a motion to amend his pleadings to add a claim under the Paternity Act, M.C.L. § 722.711 et seq. The trial court granted summary disposition in favor of defendant.

At issue is the applicability of Girard v. Wagenmaker, 437 Mich. 231, 470 N.W.2d 372 (1991). In Girard, the Supreme Court concluded that the Paternity Act grants standing to a putative father to determine the paternity of a child born out of wedlock and that a child is not born out of wedlock if the mother was married at any time from conception to birth unless a court has determined, before the paternity action is filed, that the child is not issue of the marriage. Id. at 242-243, 470 N.W.2d 372.² Although the Paternity Act was amended after the Girard decision, the amendments do not supply a basis for concluding that Girard is no longer applicable.

Another aspect of Girard that must be considered is the holding that a putative father may not seek a determination of paternity under the Child Custody Act, M.C.L. § 722.21 et seq. Girard addresses this only briefly and relies on this Court's decision in Pizana v. Jones, 127 Mich.App. 123, 127, 339 N.W.2d 1 (1983), for the proposition that "a proper action to determine paternity should be brought under and governed by the provisions of the Paternity Act." Girard, supra at 251, 470 N.W.2d 372. The Girard Court concluded that because the plaintiff did not have standing under the Paternity Act to contest paternity, he could not obtain a determination under the Child Custody Act that he was the father of the child. The Court further determined that because the plaintiff could not obtain a determination that he was the father of the child, he must be considered a nonparent under the Child Custody Act and his custody claim was barred. Id.

Interestingly, the Court in Pizana, supra, upheld the trial court's determination of paternity made under the Child Custody Act. Thus, although the Pizana Court stated that a determination of paternity should be litigated under the Paternity Act, it nevertheless affirmed the trial court's determination of paternity expressly made under the Child Custody Act.

In any event, what we can conclude is that if defendant had, in lieu of filing an answer in the case at bar, moved to dismiss plaintiff's complaint for a lack of standing in light of Girard, the trial court would have been obligated to grant that motion and dismiss the complaint. Plaintiff would have been unable to establish his paternity under the rule in Girard and would have been precluded from maintaining a custody action. However, that is not what happened.

Plaintiff's custody complaint alleged that he was Maria's father:

3. That the Plaintiff is the father, and the Defendant is the mother, of MARIA JACQUELINE SCHREIBER, born June 16,1998.

Defendant answered stating "Admitted, upon information and belief."³ A stipulated temporary order was entered. The order included references to the parties as having "temporary joint legal custody of their minor child" and references to "the other parent."

We conclude that because defendant admitted in her answer that plaintiff was the father, the trial court had jurisdiction to entertain the custody action. In reaching this decision, we are guided by this Court's decision in Altman v. Nelson, 197 Mich.App. 467, 495 N.W.2d 826 (1992). In Altman, the putative father filed an action under the Paternity Act seeking a determination that he was the biological father of the child born to the defendant mother. The defendant alleged in her answer that she was married at the time of the child's conception and birth, but did not seek dismissal of the complaint. After the completion of blood tests, an order was entered declaring that the plaintiff was the legal father of the child. Custody and visitation issues were resolved. The parties stipulated transferring custody of the child to the plaintiff. Thereafter, the defendant sought to have the entire custody matter dismissed for lack of jurisdiction pursuant to the decision in Girard. The trial court agreed that the plaintiff did not have standing in the paternity action and that the trial court had erred in failing to consider the defendant's marital status and its effect on the plaintiff's standing before entering the order of filiation. The trial court declared its earlier orders of filiation and custody to be void ab initio for lack of jurisdiction, vacated the prior orders, and ordered that the child be immediately returned to the defendant.

This Court reversed, disagreeing with the trial court that it was an issue of jurisdiction:

Subject-matter jurisdiction and standing are not the same thing. Jurisdiction of the subject matter is the right of the court to exercise judicial power over a class of cases, not the particular case before it; to exercise the abstract power to try a case of the kind or character of the one pending. Joy v. Two-Bit Corp., 287 Mich. 244, 253-254, 283 N.W. 45 (1938); In re Waite, 188 Mich.App. 189, 199, 468 N.W.2d 912 (1991). The question of jurisdiction does not depend on the truth or falsity of the charge, but upon its nature: it is determinable on the commencement, not at the conclusion, of the inquiry. Fox v. Martin, 287 Mich. 147, 152, 283 N.W. 9 (1938); Waite, supra at 199, 468 N.W.2d 912. Jurisdiction always depends on the allegations and never upon the facts. When a party appears before a judicial tribunal and alleges that it has been denied a certain right, and the law has given the tribunal the power to enforce that right if the adversary has been notified, the tribunal must proceed to determine the truth or falsity of the allegations. The truth of the allegations does not constitute jurisdiction. Id.

There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal. This fundamental distinction runs through all the cases. Jackson City Bank & Trust Co. v. Fredrick, 271 Mich. 538, 544, 260 N.W. 908 (1935); Bowie, supra at 49, 490 N.W.2d 568. When there is a want of jurisdiction over the parties or the subject matter, no matter what formalities may have been taken by the trial court, the action is void because of its want of jurisdiction. Consequently, its proceedings may be questioned collaterally as well as on direct appeal. Jackson, supra.

Where jurisdiction of the subject matter and the parties exist, errors or irregularities in the proceedings, however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, do not render the judgment void; until the judgment is set aside, it is valid and binding for all purposes and cannot be collaterally attacked. Once jurisdiction of the subject matter and the parties is established, any error in the determination of questions of law or fact upon which the court's jurisdiction in the particular case depends is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon the correctness of the determination made. Jackson, supra at 545-546, 260 N.W. 908; Waite, supra at 200, 468 N.W.2d 912.

If the court has jurisdiction of the parties and of the subject matter, it also has jurisdiction to make an error. Buczkowski v. Buczkowski, 351 Mich. 216, 221, 88 N.W.2d 416 (1958).

* * *

Subject-matter jurisdiction over paternity actions has been conferred by statute on the circuit court. M.C.L. § 722.714(3); M.S.A. § 25.494(3). Syrkowski v. Appleyard, 420 Mich. 367, 375, 362 N.W.2d 211 (1985). The circuit court also has subject-matter jurisdiction of custody disputes pursuant to the Child Custody Act. M.C.L. § 722.21 et seq.; M.S.A. § 25.312(1) et seq.; Bowie, supra at 52, 490 N.W.2d 568. [Altman, supra at 472-474, 495 N.W.2d 826.]

The Altman decision then distinguished jurisdiction from an issue of standing:

In contrast, standing relates to the position or situation of the plaintiff in relation to the cause of action and the other parties at the time the plaintiff seeks relief from the court. Generally, in order to have standing, a

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