Killingbeck v. Killingbeck
| Decision Date | 06 December 2005 |
| Docket Number | Docket No. 258358.,Docket No. 261404.,Docket No. 261405. |
| Citation | 711 N.W.2d 759,269 Mich. App. 132 |
| Parties | Rebeka Sue KILLINGBECK, Plaintiff-Appellee, and Tony Rosebrugh, Plaintiff-Appellant, v. Dennis Dean KILLINGBECK, Defendant-Appellee. Rebeka Sue Killingbeck, Plaintiff/Counterdefendant-Appellant, and Tony Rosebrugh, Intervening Party, v. Dennis Dean Killingbeck, Defendant/Counterplaintiff-Appellee. Rebeka Sue Killingbeck, Plaintiff/Counterdefendant, and Tony Rosebrugh, Intervening Party-Appellant, v. Dennis Dean Killingbeck, Defendant/Counterplaintiff-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Before: COOPER, P.J., and BANDSTRA and KIRSTEN FRANK KELLY, JJ.
These consolidated appeals involve custody, parenting time, and child support rights and obligations concerning Devon Dennis Rosebrugh, who is now seven years old. His biological parents are Tony Rosebrugh and plaintiff Rebeka Sue Killingbeck (hereinafter "plaintiff"). Defendant Dennis Dean Killingbeck (hereinafter "Killingbeck") signed an acknowledgement of parentage following Devon's birth and acted as Devon's father for the first four years of his life until DNA (deoxyribonucleic acid) testing revealed Rosebrugh's parentage and these actions ensued. The primary issue raised on appeal is the trial court's order granting parenting time to Killingbeck, coupled with an order revoking the acknowledgement of parentage. We reverse the order granting Killingbeck parenting time, vacate the order revoking the acknowledgement of parentage, and remand.
Plaintiff testified that she lived with Killingbeck for a five-year period in the early 1990s; that she lived with Rosebrugh for approximately three months beginning in August 1997; and that, near the time of Devon's conception, she had engaged in intercourse with both Killingbeck, whom she saw approximately every other week, and Rosebrugh, whom she saw about once a week. Sometime in December 1997 plaintiff moved in with Killingbeck because she began to feel more attached to him. Rosebrugh testified that, before Devon's birth in July 1998, plaintiff assured him that they "would do blood work when the child was born," but that after Devon's birth, Killingbeck prohibited contact between plaintiff and Rosebrugh. Further, in August 1998, plaintiff and Killingbeck prepared and signed an acknowledgement of parentage stating that they were Devon's natural parents. See MCL 722.1001 et seq. Plaintiff testified that she had signed the acknowledgement of parentage stating that Killingbeck had fathered Devon because "[a]t the time . . . [she] believed [Killingbeck] was the father." However, she also stated that she did not feel certain that Rosebrugh had not fathered Devon and that she discussed her concerns with Killingbeck.
Plaintiff and Killingbeck continued living together through the time of their marriage in March 2002. In September 2002, plaintiff filed for divorce from Killingbeck. After doing so, plaintiff contacted Rosebrugh, and they arranged for genetic testing in October 2002 to determine whether Rosebrugh was Devon's father. The test results confirmed Rosebrugh's paternity of Devon. About a year later, on October 7, 2003, plaintiff and Rosebrugh filed a paternity petition to revoke the acknowledgement of parentage that plaintiff had cosigned with Killingbeck. Plaintiff and Rosebrugh requested that the trial court enter an order declaring Rosebrugh's paternity of Devon. However, in the divorce case, the amended judgment that ended the marriage between plaintiff and Killingbeck, entered in May 2003, had listed Devon as one of the parties' children.
Regarding the paternal relationships with Devon, Rosebrugh testified that he visited Devon regularly since the child turned four years old, that he and Devon had a good relationship, that he provided financial support for Devon on many occasions, and that he intended to continue acting as Devon's father. Killingbeck testified that he had helped take care of Devon and supported him financially for the years that Devon lived with him, that he regularly contacted and had a close relationship with Devon until plaintiff moved out of the marital home, that he currently paid child support for Devon, that he still wanted to act as Devon's father, and that he had not yet participated in any paternity blood testing.
On March 17, 2004, the trial court entered two orders that tracked the terms of an agreement that Rosebrugh, plaintiff, and Killingbeck had reached in January 2004:(1) an order in the paternity case revoking the acknowledgement of parentage because Killingbeck had not fathered Devon, and amending Devon's birth certificate to reflect that Rosebrugh was Devon's biological father, and (2) an order in the divorce case providing that Killingbeck "shall continue to have the rights of a de facto father," that "any request regarding parenting time, support and custody . . . by . . . Tony Michael Rosebrugh shall not diminish the rights of" defendant, and that the order "shall not be amended absent clear and convincing evidence that it is in the best interest of" Devon.
On May 4, 2004, Rosebrugh moved to intervene in the divorce case "with respect to custody issues of . . . Devon," pursuant to MCR 2.209. At a May 13, 2004, hearing in the divorce case, the trial court entertained Rosebrugh's motion to intervene. The trial court explained that it would "at least temporarily" grant Rosebrugh's motion to intervene "in this DM case for purposes of addressing issues regarding physical parenting time regarding . . . Devon. . . ." The court entered an order for limited intervention in June 2004 "for the limited purpose of all matters relating to custody, parenting time, and support of. . . Devon . . ., until further order of the Court." The order also provided "that the parties have not waived any rights or defenses relating to this matter by reason of stipulation or entry of this [o]rder."
During this time, plaintiff and Rosebrugh reconsidered the January 2004 agreement they had reached with Killingbeck, and the court orders implementing that agreement. On June 17, 2004, Rosebrugh moved to set aside the March 17, 2004, order regarding custody and awarding parenting time to Killingbeck, and moved to amend the judgment of divorce, to "dissolv[e] any legal rights or responsibilities. . . Killingbeck has to . . . Devon." At the June 25, 2004, hearing on Rosebrugh's motion, Rosebrugh requested "that the Court enter another order in the divorce action indicating that there has been a paternity order that's in effect that states [Killingbeck] is not the biological father of Devon. . . ." The parties argued whether, in light of the established fact that Rosebrugh was Devon's biological father, they could by consent create or give to Killingbeck de facto or equitable parental rights with respect to Devon. The trial court indicated on the record that it would deny Rosebrugh's motions.
On August 27, 2004, the trial court held a combined hearing in the divorce and paternity cases to address Rosebrugh's motion "to remove [Killingbeck] as a party and terminate his parental rights," and his motion for custody, parenting time, and support. Rosebrugh and plaintiff reiterated their position that no legal basis existed for Killingbeck to assert parental rights to Devon. On the same date, the trial court entered an order denying Rosebrugh's motions, as well as an order denying a motion filed by plaintiff to modify the judgment of divorce to clarify the legal issue of the marriage between plaintiff and Killingbeck. After further discussions with the parties concerning appropriate parenting time for Rosebrugh and Killingbeck, the trial court also entered an interim order awarding Killingbeck specific parenting time with Devon.
On September 21, 2004, the trial court entered an order in the paternity case denying Rosebrugh's motion to remove Killingbeck as a party and to terminate his parental rights. The court also ordered that Rosebrugh and plaintiff share joint legal custody of Devon, that plaintiff maintain sole physical custody, that Rosebrugh and Killingbeck have specific, separate parenting time with Devon, and that Rosebrugh pay child support in the amount of $570 a month.
Rosebrugh and plaintiff first argue on appeal that the trial court erred by failing to order Rosebrugh's joinder as a necessary party to plaintiff's and Killingbeck's divorce action.1 This contention can be easily resolved because it has no basis in fact.
The record reflects that the trial court entertained Rosebrugh's motion to intervene in the divorce action, permitted Rosebrugh to argue at length concerning the merits of his motion to intervene and the various bases for his assertion that Killingbeck had no parental rights regarding Devon, and addressed all the positions Rosebrugh raised. Further, on June 24, 2004, the trial court entered an "[o]rder for [l]imited [i]ntervention" making "Tony Rosebrugh . . . an intervener in this cause for the . . . purpose of all matters relating to custody, parenting time, and support of the minor child. . . ." Because the trial court permitted Rosebrugh to intervene in the divorce action and Rosebrugh does not argue that the court limited his desired participation in the action, Rosebrugh's and plaintiff's assertion of error lacks merit.
Rosebrugh and plaintiff next argue that the trial court erred by awarding Killingbeck parental rights concerning...
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