Kollar v. Sparks

• Docket Number: 364420
• Decision Date: 26 October 2023
• Parties: MARK J. KOLLAR, Plaintiff-Appellant, v. BRIANA SPARKS and JORDAN LEWIS, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

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MARK J. KOLLAR, Plaintiff-Appellant, v. BRIANA SPARKS and JORDAN LEWIS, Defendants-Appellees.

No. 364420

Court of Appeals of Michigan

October 26, 2023

UNPUBLISHED

Montcalm Circuit Court LC No. 2021-027867-DC

Before: Michelle M. Rick, P.J., and Douglas B. Shapiro and Christopher P. Yates, JJ.

PER CURIAM.

Plaintiff appeals as of right an order revoking his paternity to the child, AJK, under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq. We affirm.

I. FACTUAL BACKGROUND

This appeal arises out of a child welfare dispute between plaintiff, Mark J. Kollar, and his then-estranged wife defendant Briana Sparks, regarding Sparks's daughter, AJK. Testimony and evidence established that Kollar had an on-again, off-again relationship with Sparks. Sparks moved in with Kollar in or around March 2020. While living with Kollar, Sparks reconnected with defendant Jordan Lewis, whom she had previously known from school. According to Lewis, Sparks did not initially tell him that she was also with Kollar. She later told him that Kollar was her "sugar daddy."

In July 2020, Sparks accused Kollar of domestic violence. She left him and moved in to live with Lewis. Sparks stated that Kollar knew that she had been seeing Lewis by that time. Sparks became pregnant and moved back in with Kollar in November 2020. Kollar and Sparks married in March 2021, and Sparks gave birth to AJK in April 2021. Two months later, in June 2021, Sparks again left Kollar to live with Lewis. She took AJK with her. Kollar sued for temporary legal and physical custody of AJK that same month. He asserted that Sparks and Lewis were abusing drugs and that AJK was not safe in their care. There was evidence that Sparks and Lewis abused cocaine, Fentanyl, and other drugs. The trial court granted his request for temporary custody.

In July 2021, Sparks accused Lewis of domestic violence and moved back in with Kollar. That same month, the trial court allowed Lewis to intervene in the custody dispute between Sparks and Kollar. Lewis moved to revoke Kollar's paternity under the ROPA. Lewis also separately sued Sparks to establish paternity, but the trial court dismissed that case without prejudice because Sparks was married when AJK was born, meaning that Kollar was presumed to be AJK's father. A DNA test revealed that Lewis was AJK's biological father. A referee held a five-day evidentiary hearing on the motion to revoke paternity, which took place over four months. At the conclusion of the hearing, the referee found that Lewis established that AJK was born out of wedlock. The referee recognized that she could refuse to enter an order determining that AJK had been born out of wedlock, but found that doing so would not be in AJK's best interests. Accordingly, she recommended entry of an order determining that AJK was born out of wedlock.

In July 2022, the trial court entered an order consistent with the referee's recommendation. It further ordered that Lewis's previously filed paternity action be reinstated. Kollar's custody case was thereafter closed. Kollar objected and asked for a de novo hearing, which was held in September 2022. At the hearing, the trial court stated that it had acted, and was acting, with AJK's best interests in mind. It noted that AJK needed finality. The court also went through the various factors under the ROPA and made independent findings on the basis of its review of the record. Among those findings, the court stated as follows:

I think Mr. Kollar is correct that, really, we do have two primary factors, as it relates to the-well, in this situation, I would really say three factors. And I want the record to reflect I'm looking at MCL 722.1443(4), whether the presumed father is estopped from denying parentage, and again, I would agree . . . that that doesn't apply here, because Mr. Kollar, clearly, does wish to maintain paternity.

As it relates, then, to Factor B, and the length of time the presumed father was on notice that he might not be the child's father, I find that that clearly indicates that Mr. Kollar, I think he was very hopeful that he was the biological father of this child, but given the whole dynamic of the relationship, and the fact that they didn't marry until shortly before the child's birth, well after conception, and this knowledge, as he testified before me on June 15, 2021 that [Sparks] had come back for a short period of time, she went back to Mr. Lewis' home, so to speak, he was on notice from the very beginning that he might not be this child's father. So I think that's really overwhelming evidence here, in terms of the fact that he did make a decision . . . to pursue custody of the child, but he knew . . . that there was a very strong likelihood that he was not the father, from this Court's findings and perspectives.

So Factor C, then, is the facts surrounding a presumed father's discovery that he might not be the child's father. And again, I don't find this to be a surprise to Mr. Kollar at all.

He is indicating-I realize there has been some conflicting testimony about whether or not this was a planned-for pregnancy between M[s]. Sparks and M[r]. Lewis. Mr. Kollar has taken the position that that has not been the case, but yet, clearly, there is evidence here that this was not a mistake, that this was a child that Mr. Lewis and Ms. Sparks had planned . . . or were actively seeking.

As it relates to Factor D . . . the nature of the relationship between the child and the presumed or alleged father . . . . There is no question in my mind that [Kollar] loves this child deeply . . . . So again, I find that there is a significant bond there between Mr. Kollar and the minor child.

As it relates to Factor E, the age of the child, again, I am mindful of the fact that this child is very young. Her biological father was introduced to her at a very young age. I am mindful of the fact that he did have some minimal contact with her shortly after birth, but she was certainly in her infancy when some supervised parenting time had initiated . . . .

As it relates to harm that may result to the child .... there are just heart-wrenching cases where .... the Supreme Court has reversed adoptive situations, you know, where children were completely and solely bonded to a particular caretaker or home environment . . . Certainly, we want to insulate . . . [A]K] from that[.]

The trial court went on to discuss factors it believed affected the equities between the parties, pursuant to MCL 722.1443(4)(g), as well as other factors it believed appropriate to consider under MCL 722.1443(4)(h). The court stated that it had no doubt that Kollar really did love AJK, but it agreed with the referee's conclusion that he would remain a part of AJK's life as a step-parent. The court observed that the relationship dynamic between Sparks and Kollar was extremely unhealthy and characterized by a clear power imbalance. The court pointed out that Kollar is a licensed attorney who previously represented Sparks in an unrelated criminal proceeding, and noted that "to me, it just does not add up, in terms of this being a healthy, normal, and appropriate relationship." After summarizing its findings on the factors, the court found that it was in AJK's best interests to revoke Kollar's paternity. The court also stated that it was appropriate to reopen the paternity case because the relevant parties to the remaining custody matters were now Sparks and Lewis as AJK's biological parents.

The referee held a custody hearing a few days later in the newly revived paternity case. At the hearing, the parties stated that they had come to an agreement on custody. They agreed that Lewis would have sole physical custody, but they would share legal custody. In November 2022, Lewis moved for entry of a final order in this case. A final order was subsequently entered in December 2022. This appeal followed.

II. ANALYSIS

A. EXPERT TESTIMONY

Kollar first argues that the referee erred in several respects when she allowed Angie Sattler, who was an investigator with the Friend of the Court (FOC), to testify as an expert. He also argues that the referee erred by admitting a report drafted by Sattler into evidence. We disagree.

A trial court's qualification of a witness as an expert is reviewed for an abuse of discretion. Gay v Select Specialty Hosp, 295 Mich.App. 284, 290; 813 N.W.2d 354 (2012). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich.App. 144, 153-154; 908 N.W.2d 319 (2017). Moreover, "[although trial courts have considerable discretion in determining whether a witness is qualified to testify as an expert, trial courts must nevertheless accurately apply the law in exercising their discretion." Gay, 295 Mich.App. at 291. This Court reviews de novo whether the trial court properly applied the rules of evidence. Mitchell, 321 Mich.App. at 154.

Kollar primarily contends that Sattler was not experienced enough in paternity matters to testify as an expert in this case. MRE 702 governs the certification of expert witnesses, and provides, in relevant part:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Here the referee had considerable discretion in determining whether...