Opland v. Kiesgan

Decision Date05 March 1999
Docket NumberDocket No. 201258
Citation234 Mich.App. 352,594 N.W.2d 505
PartiesMelonie P. OPLAND, individually and Stephanie L. Craft, a minor, by her next friend Melanie P. Opland, Plaintiffs-Appellants, v. Gregory L. KIESGAN, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Thomas, DeGrood, Witenoff & Hoffman, P.C. (by Brian R. Sullivan ), Southfield, for the plaintiffs.

Jerald E. Lovell, Mount Clemens, for the defendant.



This case involves a mother and her daughter, born in 1990, who have been trying to resolve the paternity of the child ever since. The trial court granted summary disposition to defendant in this action, the second paternity suit filed to resolve the question, on the basis of its conclusion that this result was required by an opinion of this Court in a prior paternity action. However, since this Court previously considered the matter, an amended judgment of divorce has established that the child was "born out of wedlock." Consequently, we conclude that the mother may maintain her action under the Paternity Act and, further, that she is not prevented from doing so under the principles of judicial estoppel. 1 We further conclude that the trial court erred in deciding that the daughter had no right to maintain her own action to determine paternity. Accordingly, we reverse the trial court order granting summary disposition to defendant and remand for further proceedings.


When plaintiff Melonie Opland (Opland) gave birth to her daughter, plaintiff Stephanie Craft (Stephanie) in 1990, Opland was married to, but separated from, Jeffrey Craft (Craft). Shortly thereafter, Opland filed for divorce. Although she now claims that Stephanie was not Craft's child, she asserted then that Stephanie was. 2 Craft did not contest this assertion, and a judgment of divorce was entered in 1991 (the original divorce judgment) designating Craft as Stephanie's father.

A year later, in September 1992, Opland filed a paternity action against defendant, Gregory Kiesgan (Kiesgan), designating Opland as the only plaintiff. The trial court ordered Kiesgan to submit to a blood test, and Kiesgan appealed this ruling to this Court, on leave granted. In an unpublished opinion, a panel of this Court determined that Opland did not have standing under the Paternity Act, M.C.L. § 722.711 et seq.; MSA 25.491 et seq., because there had been no prior court determination that Stephanie was not the issue of Opland's marriage to Craft, as required by Girard v. Wagenmaker, 437 Mich. 231, 241-243, 470 N.W.2d 372 (1991). Craft v. Kiesgan, unpublished opinion per curiam of the Court of Appeals, issued October 24, 1995 (Docket No. 160586). 3 Further, the panel determined that Opland's claim was barred by the doctrine of judicial estoppel under Paschke v. Retool Industries, 445 Mich. 502, 509-510, 519 N.W.2d 441 (1994), because Opland had successfully asserted in the prior divorce proceeding that Stephanie was Craft's daughter, an assertion that was wholly inconsistent with her paternity action claim that Stephanie was Kiesgan's daughter. As a result of that ruling by this Court, Opland's first paternity action against Kiesgan was dismissed.

Shortly thereafter, Opland and Craft returned to the divorce court, which entered a consent order modifying the original divorce judgment. This judgment (the amended divorce judgment) was based on stipulations by Opland and Craft that Stephanie was conceived when the parties were separated and contemplating divorce, that Craft "had no access" to Opland during the time of Stephanie's conception, that except "for some period of time," Craft had never paid child support for Stephanie, that this approach to child support was with the agreement of Opland and with the knowledge of the friend of the court, and that another man was Stephanie's father. The amended divorce judgment further stated that, on the basis of the stipulations of the parties, the court determined that Stephanie was not the issue of the marriage between Opland and Craft, although she was conceived and born during that marriage. Accordingly, the amended divorce judgment deleted reference to Stephanie in its provisions regarding custody and support obligations.

On June 21, 1996, the same date that the amended divorce judgment was entered, Opland filed the present paternity action. In contrast to the prior paternity action, both Opland and Stephanie are listed as plaintiffs, with Opland acting as next friend of Stephanie. The case was assigned to the same trial court judge whose decision ordering Kiesgan to undertake a blood test had been reversed by this Court in 1995. The trial court granted summary disposition to Kiesgan, basically concluding that this Court's prior decision required that result, notwithstanding the intervening amendment of the judgment of divorce. The trial court reasoned that although the caption of the complaint had changed, Opland "is the driving force behind ... the present action" just as she was behind the prior paternity suit and that "the substantive facts have not changed since the prior paternity action was dismissed." Further, the trial court reasoned that Opland was seeking equitable relief, which she could not have under the "clean hands" doctrine, having pursued Craft for child support during the same years she was pursuing a paternity action against Kiesgan. The trial court's order granting summary disposition for Kiesgan and dismissing the complaint in the second paternity action is at issue here.


In granting summary disposition to Kiesgan, the trial court did not separately analyze the claims brought by Opland and Stephanie as individual plaintiffs. We find it necessary to do so.

Melonie Opland
Paternity Act Standing

As noted earlier, our Court previously ruled that Opland did not have standing under the Paternity Act because there had been no prior court determination to rebut the presumption that Stephanie, born and conceived during the Opland/Craft marriage, was the issue of that marriage. See M.C.L. § 722.711; MSA 25.491 and Girard, supra at 240-243, 470 N.W.2d 372. Although Kiesgan criticizes Opland for failing to appeal this earlier ruling, we conclude that it was correct and that there would have been no basis for appeal. We further conclude that Opland properly went back to the divorce court for a determination that Stephanie was not an issue of the marriage in order to remove the impediment to standing identified by our Court's previous decision.

This is the procedure our Court has recommended as appropriate to resolve the Girard standing requirement. In Dep't of Social Services v. Baayoun, 204 Mich.App. 170, 176, 514 N.W.2d 522 (1994), we noted "that the mother may secure a determination that her child was not an issue of the marriage through postjudgment divorce proceedings." Similarly in Dep't of Social Services v. Carter, 201 Mich.App. 643, 649, 506 N.W.2d 603 (1993), we stated: "After obtaining an amended judgment of divorce that provided that the minor child was not the issue of the marriage, plaintiffs then could refile the paternity action against defendant." Although these passages are dicta, we find the approach recommended to be an appropriate response to the Girard prior-court-determination requirement. That requirement is one of the "limitations on the accessibility to the Paternity Act." Girard, supra at 240, 470 N.W.2d 372. It presents a hurdle to litigants in actions involving children born during a marriage by requiring that, before an action proceeds, a judicial determination must be made that the child is nonetheless not the issue of that marriage. Id. at 240-248, 470 N.W.2d 372. To impose a prior-court-determination requirement and then prohibit potential Paternity Act litigants from seeking that determination would convert the hurdle into an absolute bar.

We further conclude that, although Kiesgan casts aspersions on it as "an alleged consent order," 4 the amended divorce judgment constituted a prior court determination sufficient to satisfy the Girard requirement. Although it was a consent judgment, the amended divorce judgment stated that the court made a factual determination that Stephanie was not the issue of the marriage between Opland and Craft. This was based on the uncontested stipulation of Opland and Craft that although they were married at the time Stephanie was conceived, they were separated at that time and had no opportunity for any sexual relationship. Kiesgan suggests no reason the court should have disbelieved Opland and Craft, the only persons with knowledge of these matters. We conclude that the amended divorce judgment was properly entered and that it constituted a sufficient prior determination under Gerard to allow Opland to proceed with her paternity action. 5

Kiesgan cites Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906 (1986), and Hawkins v. Murphy, 222 Mich.App. 664, 565 N.W.2d 674 (1997), apparently in support of an argument 6 that, the divorce court having previously entered a judgment indicating that Stephanie was Craft's daughter, the amended divorce judgment determining otherwise was improper. We find these precedents to be inapposite. Neither case involved the situation here, where both parties to the divorce, in securing an amendment to the divorce judgment, disavowed their original representations regarding the paternity of Stephanie and stipulated that Craft was not her father. Hackley and Hawkins did not involve this kind of agreement between the mother and the putative father. In Hackley, supra at 600-601, 395 N.W.2d 906, the putative father, over the protestations of his former wife and almost nine years after the divorce decree establishing his paternity had been entered, sought to disavow a child...

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