Sprenger v. Bickle

• Citation: 839 N.W.2d 59,302 Mich.App. 400
• Decision Date: 10 September 2013
• Docket Number: Docket No. 310599.
• Parties: SPRENGER v. BICKLE.
• Court: Court of Appeal of Michigan (US)

302 Mich.App. 400

839 N.W.2d 59

SPRENGER

v.BICKLE.

Docket No. 310599.

Court of Appeals of Michigan.

Submitted May 16, 2013, at Traverse City.

Decided Sept. 10, 2013, at 9:00 a.m.

Phelps Legal Group, PLC (by Eric W. Phelps, Traverse City and Kathryn M. Traband), for John C. Sprenger.

Law Offices of Paul T. Jarboe (by Paul T. Jarboe and Lauren K. Pfeil), for Emily R. Bickle.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and BOONSTRA, JJ.

RONAYNE KRAUSE, P.J.

Plaintiff appeals as of right an order entered on May 18, 2012, dismissing for lack of standing his complaint regarding paternity brought under the Paternity Act. MCL 722.711 et seq. We affirm.¹

I. BASIC FACTS AND PROCEDURAL HISTORY

Plaintiff alleges that he is the biological father of a minor child born to defendant in November 2011, while she was lawfully married to someone else. Plaintiff and defendant were briefly engaged after defendant's divorce from Adam Bickle in April 2011. Although the parties dispute whether defendant was pregnant before her divorce, mutual friends of the couple and members of both their families assert that within days of the divorce, defendant and plaintiff were sharing the news that they were expecting a child. The engagement between plaintiff and defendant ended; in August 2011, defendant remarried Adam and they were still married when she gave birth three months later.

In December 2011, plaintiff filed a paternity action under the Paternity Act, alleging himself to be the biological father of the child and requesting the court to determine issues of legal and physical custody, parenting time, and child support. In response, defendant filed a motion to dismiss, asserting lack of standing, MCR 2.116(C)(5), and failure to state a claim on which relief could be granted, MCR 2.116(C)(8). In an April 6, 2012 ruling, the circuit court determined that plaintiff did not have standing and granted defendant's motion to dismiss under MCR 2.115(C)(5). This appeal followed.²

II. ANALYSIS

Plaintiff argues that the trial court erred by: (1) finding that plaintiff lacked standing to bring a claim under the Paternity Act because defendant had acknowledged to friends and family that plaintiff was the father of the child she was expecting, which rebutted the presumption of the child's legitimacy, and (2) denying him the opportunity to conduct discovery to prove that it would have been impossible for Adam Bickle to be the father. We disagree.

“This Court reviews the grant or denial of a motion for summary disposition de novo.” Jones v. Slick, 242 Mich.App. 715, 718, 619 N.W.2d 733 (2000). “In reviewing a motion for summary disposition pursuant to MCR 2.116(C)(5), this Court must consider the pleadings, depositions, admissions, affidavits, and other documentary evidence submitted by the parties.” Id. “Statutory interpretation is a matter of law subject to review de novo on appeal.” Rose Hill Center, Inc. v. Holly Twp., 224 Mich.App. 28, 32, 568 N.W.2d 332 (1997). “If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.” Id.

Only the mother and the presumed legal father may challenge the presumption of legitimacy. People v. Zajaczkowski, 293 Mich.App. 370, 378, 810 N.W.2d 627 (2011), vacated 493 Mich. 6, 825 N.W.2d 554 (2012) (vacating defendant's conviction of first-degree criminal sexual conduct by relying on the plain language of the criminal statute rather than the civil presumption concerning legitimacy). See also In re KH, 469 Mich. 621, 635, 677 N.W.2d 800 (2004) (recognizing that only the mother and the legal father may rebut the presumption of legitimacy that arises when a child is born during a marriage). In order for a third party to have standing to rebut this presumption, there must first have been a “judicial determination arising from 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 results revealed a 99.99% probability that he is the biological father, plaintiff still would not have standing to bring a paternity action absent such a prior judicial determination. Aichele v. Hodge, 259 Mich.App. 146, 148, 162, 673 N.W.2d 452 (2003). Unless and until defendant and her husband ask a court to declare that the child was born out of wedlock, plaintiff lacks standing to claim paternity under the Paternity Act. Pecoraro, 291 Mich.App. at 313, 805 N.W.2d 226.³ Defendant and her husband have not sought such a judicial declaration; therefore, the trial court was correct in determining that plaintiff lacks standing to pursue a remedy under the Paternity Act.

The trial court also correctly denied plaintiff's request for discovery. Because plaintiff does not have standing to bring an action under the Paternity Act, he is not entitled to discovery to assist in developing a paternity claim.⁴ Even if the court had inexplicably allowed discovery, there was no information plaintiff could have discovered through the questions he proposed that would have conferred standing absent a prior judicial determination that the child was not the issue of defendant's marriage.⁵

Plaintiff also argues that the court should vacate or modify defendant's judgment of divorce to address the paternity issue. Plaintiff contends that if defendant knew she was pregnant at the time of her divorce and failed to acknowledge as much to the court, she perpetrated a fraud on the court and the court should vacate the judgment. Alternatively, plaintiff argues that if the court could not address paternity because defendant did not know she was pregnant, the court should address the issue now and modify the judgment accordingly. We disagree.

In support of his argument that the judgment of divorce should be vacated as a fraud on the court, plaintiff relies on Allen v. Allen, 341 Mich. 543, 67 N.W.2d 805 (1954), and DeHaan v. DeHaan, 348 Mich. 199, 82 N.W.2d 432 (1957). In both Allen and DeHaan, the plaintiff wives became pregnant while separated from their husbands. The courts set aside their judgments of divorce on the basis of fraud. The law under which the Court decided these cases called for the granting of interlocutory decrees of divorce that would become final after a specified period. See Young v. David Young, 342 Mich. 505, 506, 70 N.W.2d 730 (1955). The marital relationship between the parties did not end until the interlocutory decree became final, and a plaintiff's misconduct during that interlocutory period resulted in his or her loss of the right to an absolute divorce decree. Linn v. Linn, 341 Mich. 668, 673, 69 N.W.2d 147 (1955); Curtis v. Curtis, 330 Mich. 63, 66, 46 N.W.2d 460 (1951). Thus at the time Allen and DeHaan were decided, “a party's marital misconduct was an absolute bar to that party's ability to obtain a divorce. Had the trial court known of plaintiff's misconduct, by law it would have been powerless to grant the divorce.” Rogoski v. City of Muskegon, 107 Mich.App. 730, 737 n. 3, 309 N.W.2d 718 (1981).

Substantial changes in divorce law since the 1950s render those cases inapplicable to the instant case. But even if Allen and DeHaan were applicable, plaintiff would not have standing to invoke them because, unlike Allen and DeHaan, plaintiff was not a party to the instant defendant's divorce.⁶ With regard to modifying the judgment of divorce to address the paternity of the child, plaintiff does not have standing to request the court to modify a divorce to which he is not a party. Berg v. Berg, 336 Mich. 284, 288, 57 N.W.2d 889 (1953) (“[T]he husband and wife are the only parties to be recognized in a divorce case.”).

Finally, plaintiff argues that defendant's judgment of divorce provided for the custody and care of some of her children but not for the child with whom she was then pregnant. Plaintiff argues that this is tantamount to a judicial determination that the child was not issue of the marriage, which suffices to confer standing under the Paternity Act. We disagree.

In support of his argument to vacate defendant's judgment of divorce, plaintiff cites Afshar v. Zamarron, 209 Mich.App. 86, 530 N.W.2d 490 (1995). Afshar claimed to be the biological father of a daughter conceived and born to Zamarron while she was married to another man. The lower court dismissed Afshar's action for lack of standing. This Court confirmed on appeal that a putative father has standing under the Paternity Act only when a child has been born out of wedlock as defined by the act and also stated that “a divorce judgment that is specific with regard to the question of custody and support of one minor child of the marriage and that is silent with regard to another child may, under appropriate circumstances, be deemed to have determined the issue of paternity.” Id. at 91–92, 530 N.W.2d 490.Afshar may be distinguished from the instant case, however, because in Afshar, both Zamarron and her husband had acknowledged in their divorce proceedings that Zamarron's daughter was not issue of their marriage. This mutual acknowledgment by mother and presumed father in the context of judicial proceedings was critical to this Court's conclusion that the determination that the child was not issue of the marriage was implicit in the judgment of divorce.⁷ In the instant case, as has been repeatedly stated, neither defendant nor the child's legal father has sought to rebut the presumption of the child's legitimacy.

The dissent finds it notable that “[a]t a time when too many fathers are running from their parental responsibilities, plaintiff in this case is running toward his.” This echoes a sentiment expressed nearly a decade ago by this Court in Spielmaker v. Lee, 205 Mich.App. 51, 517 N.W.2d 558 (1994). In Spielmaker, this Court determined...