Pecoraro v. Rostagno-Wallat
| Decision Date | 18 January 2011 |
| Docket Number | Docket Nos. 293355,293445. |
| Citation | 291 Mich.App. 303,805 N.W.2d 226 |
| Parties | PECORARO v. ROSTAGNO–WALLAT. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Law Offices of Jeffery A. Cojocar, P.C., Shelby Township (by Jeffery A. Cojocar), for Anthony S. Pecoraro.
Anne Argiroff, Farmington Hills and Mekel Miller, Southfield for Gina Rostagno–Wallat.
Judith A. Curtis and Kenneth E. Prather, Grosse Pointe for Jeffrey C. Wallat.
Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ.
In those consolidated appeals by leave granted,1 Jeffrey C. Wallat and his spouse, Gina Rostagno–Wallat, (collectively referred to as “ the Wallats”) appeal an order issued by the Wayne Circuit Court which, among other things, enforces an order of filiation issued by a New York court. The order of filiation declared Anthony Pecoraro to be the father of a child conceived and born to Rostagno–Wallat during her marriage to Wallat. On appeal, we must decide whether Pecoraro has standing to bring suit to establish paternity in Michigan. We must also consider whether the Full Faith and Credit Clause of article IV, § 1 of the United States Constitution requires us to give full force and effect to the order of filiation entered by the New York court.
In Michigan, a child conceived and born during a marriage is legally presumed the legitimate child of that marriage, and the mother's husband is the child's father as a matter of law. A third party may not rebut this legal presumption unless there first exists a judicial determination arising from a proceeding between the husband and the wife that declares the child is not the product of the marriage. Because there was no paternity determination made in legal proceedings involving Wallat and Rostagno–Wallat that established Wallat was not the father of the child, we hold that Pecoraro lacks standing to seek paternity under Michigan's Paternity Act. Further, because the New York court concluded that it lacked personal jurisdiction over Wallat, a necessary party to the paternity proceedings, we hold that the Full Faith and Credit Clause of the United States Constitution does not require us to give effect to the New York order of filiation. We reverse the judgment of the lower court and remand for entry of judgment consistent with this opinion.
The Wallats have been married to each other since June 4, 1994. At all times pertinent to this action, they have resided in Michigan. Two children were conceived and born during their marriage, one was born in 1999 and the other in 2002. The birth certificates of both children identify Jeffrey Wallat as the father.
Rostagno–Wallat and Pecoraro attended law school together in Lansing, Michigan. In June of 1997, their relationship expanded beyond the study of law. An intimate relationship between them continued on an “on-and-off” basis after Pecoraro graduated from law school in 1998 and returned to his home in Buffalo, New York. Rostagno–Wallat informed Pecoraro that he was the biological father of the child born in 2002 (throughout the remainder of this opinion, the child born in 2002 is referred to as “the child”). Deoxyribonucleic acid (DNA) testing performed in 2002 confirmed that Pecoraro was the biological father of the child. In April 2005, Rostagno–Wallat and Pecoraro permanently ceased their relationship and litigation commenced shortly thereafter.
In June 2005, Pecoraro filed a paternity petition against Rostagno–Wallat in New York, seeking an order of filiation establishing himself as the father of the child. Rostagno–Wallat moved to dismiss the paternity action for lack of personal jurisdiction, as neither she nor the child ever had resided in New York. Rostagno–Wallat also argued that dismissal was required because Pecoraro failed to name a necessary party—her husband, Jeffrey Wallat, who also was not subject to the jurisdiction of New York.2 Finally, Rostagno–Wallat argued that paternity was already established by operation of Michigan law, which presumes that, absent a prior judicial determination to the contrary, all children born of a marriage are the product of the marriage. Girard v. Wagenmaker, 437 Mich. 231, 242–244, 470 N.W.2d 372 (1991); MCL 722.711(a); MCR 3.903(7).
The New York court denied Rostagno–Wallat's motion to dismiss the paternity petition. The New York court found that it had jurisdiction over Rostagno–Wallat under N.Y. Fam Ct Act § 580–201(6), because she engaged in sexual intercourse in New York and the child may have been conceived by that act. Thereafter, Pecoraro apparently amended his petition to name Wallat as a defendant.
Wallat made a special appearance in the New York court to contest the court's jurisdiction over him. Wallat argued the paternity action had to be dismissed because he was a necessary party to the establishment of paternity and he could not be compelled to litigate in New York because New York did not have personal jurisdiction over him. Wallat, like Rostagno–Wallat, argued that the paternity of the child was established pursuant to Michigan law.
The New York court conceded that Wallat was a necessary party to the paternity action and that it did not have any basis to exercise personal jurisdiction over Wallat. The New York court also acknowledged that under Michigan law, paternity was established in Wallat, since he was the spouse of Rostagno–Wallat at the time of conception. Nonetheless, the New York court found that under New York's Civil Practice Law and Rules, CPLR 1001(b), dismissal of the paternity action was not required. This rule provides, in pertinent part, that “[i]f jurisdiction over [a necessary party] can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party.” 3 The New York court held that justice required that Pecoraro be permitted to proceed with the matter even though the court could not obtain jurisdiction over Wallat. Wallat's motion to dismiss for lack of personal jurisdiction was denied.4
A trial was held on the issue of paternity. Rostagno–Wallat did not attend the trial and presented no proofs. In April 2007, the New York court issued a decision and order that held Rostagno–Wallat was estopped from denying that Pecoraro was the father of the child. The New York court granted Pecoraro's petition to establish paternity and issued an order of filiation declaring him the father of the child. Thereafter, the New York court dismissed Pecoraro's claim against Wallat for lack of personal jurisdiction. The Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department, subsequently affirmed this order on June 6, 2008, Docket No. CAF 08–00128.
In January 2006, prior to the resolution of the paternity action in New York, Wallat filed a paternity action against Rostagno–Wallat in the Wayne Circuit Court. After conducting a hearing with testimony from Wallat and Rostagno–Wallat, the court entered an order dismissing the case because the child was conceived and born during the parties' marriage and thus was not born out of wedlock. The court concluded it lacked jurisdiction to enter an order of filiation “due to paternity already being established.”
In February 2008, while the New York proceedings were on appeal, Pecoraro filed in the Wayne Circuit Court a “Complaint for Paternity” against Rostagno–Wallat in which he, among other things, sought enforcement of the New York order of filiation. This complaint alleged that the parties were never married and had one minor child born out of wedlock. In July 2008, Wallat filed a complaint for declaratory judgment against Rostagno– Wallat and Pecoraro. In this action, Wallat sought a determination that he is the legal father of the child. After additional procedural maneuvering by and between the litigants, all parties eventually filed motions for summary disposition. On July 16, 2009, the trial court issued an opinion and order finding in favor of Pecoraro. This appeal followed.
On appeal, the Wallats argue that the trial court erred by finding that Pecoraro had standing under Michigan's Paternity Act, MCL 722.711 et seq. They also argue the trial court erred in concluding that it was constitutionally required to give full faith and credit to the New York order of filiation issued by the New York court. We agree.
Whether a party has standing to commence an action to establish paternity under the Paternity Act involves a question of law that this Court reviews de novo. Barnes v. Jeudevine, 475 Mich. 696, 702, 718 N.W.2d 311 (2006). We also review de novo the interpretation of statutes, jurisdictional issues, and constitutional questions. State Farm Fire & Cas. Co. v. Corby Energy Servs., Inc., 271 Mich.App. 480, 483, 722 N.W.2d 906 (2006); Pontiac Food Ctr. v. Dep't of Community Health, 282 Mich.App. 331, 335, 766 N.W.2d 42 (2009); Blackburne & Brown Mtg. Co. v. Ziomek, 264 Mich.App. 615, 620, 692 N.W.2d 388 (2004).
Pecoraro argues that he can enforce the New York order of filiation under § 4b of the Paternity Act, which provides that “[t]he establishment of paternity under the law of another state has the same effect and may be used for the same purposes as an acknowledgment of paternity or order of filiation under this act.” MCL 722.714b. We find no merit in this argument. Before Pecoraro may assert the provisions of the Paternity Act, he must establish that he has standing under that act.
Standing to pursue relief under the Paternity Act is conferred on “(1) the mother of a child born out of wedlock, (2) the father of a child born out of wedlock, or (3) the Family Independence Agency[ 5] on behalf of a child born out of wedlock who is being supported in whole or in part by...
To continue reading
Request your trial
-
Sprenger v. Bickle
...a proceeding between the husband and the wife that declares the child is not the product of the marriage.” Pecoraro v. Rostagno–Wallat, 291 Mich.App. 303, 306, 805 N.W.2d 226 (2011). Letters from friends and family cannot rebut the presumption of legitimacy. In this case, even if blood test......
-
Charter Twp. of Canton v. 44650, Inc.
... ... 177, 183; 665 N.W.2d 468 (2003) ... This ... Court also reviews constitutional questions de novo ... Pecoraro v Rostagno-Wallat , 291 Mich.App. 303, 311; ... 805 N.W.2d 226 (2011). Further, plain-error review is proper ... for unpreserved claims ... ...
-
Porter v. Hill
...reason of biology from a legal parent affiliated with a child by reason of adoption. As clearly stated in Pecoraro v. Rostagno–Wallat, 291 Mich.App. 303, 314, 805 N.W.2d 226 (2011), “[t]he phrase ‘natural parent’ [in MCL 722.22(h) ] was used by the Legislature to distinguish between adoptiv......
-
People v. Wambar
...minor is illegitimate.” MCL 722.22(h) defines “parent” as “the natural or adoptive parent of a child.” In Pecoraro v. Rostagno–Wallat, 291 Mich.App. 303, 313–314, 805 N.W.2d 226 (2011), this Court found that the plaintiff, regardless of his assertion that he was the biological father of the......