Terry v. Affum
| Decision Date | 22 January 1999 |
| Docket Number | 213582,Docket Nos. 210862 |
| Citation | 592 N.W.2d 791,233 Mich.App. 498 |
| Parties | Clifford Joseph TERRY, Clifford Terry, and Addie Terry, Plaintiffs-Appellants, v. Doretha L. AFFUM, Brenda Joseph, John Doe, and Jane Doe, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Jerry M. Seay, Clinton Township, for the plaintiffs.
Essick & Salmu, P.C. (by Robert J. Essick), Southfield, for the defendants.
Before: MURPHY, P.J., and FITZGERALD and GAGE, JJ.
Plaintiffs, the father and the paternal grandparents of Clifford Joseph Terry, Jr., a minor child, born January 29, 1991, appeal by leave granted the order granting defendants, the child's maternal aunts and uncle, visitation with the child. We reverse.
Following the sudden death of Betty Lee, the child's mother, on May 6, 1997, the child went to live with his father, Clifford Joseph Terry, Sr. (hereafter Terry). Lee and Terry never married. After Lee's funeral, during which time Terry permitted the child to spend time with defendants, defendants failed to return the child to Terry. Plaintiffs thereafter filed a complaint for a paternity hearing and for an adjudication of the custodial rights of the parties. Plaintiffs also requested the court to address the issue of visitation by defendants.
Subsequently, Terry's paternity was established and the parties stipulated the entry of an order establishing Terry's paternity and granting sole legal and physical custody of the minor child to Terry. The order also reflected the parties' agreement that it was in the best interests of the minor child for him to continue a relationship with defendants. Accordingly, the parties stipulated defendants' visitation with the minor child. Less than three months later, however, plaintiffs moved to amend the order and terminate defendants' visitation rights, arguing that defendants had no legal right to visitation. Plaintiffs contended that they stipulated visitation under duress because defendants would not otherwise return the child. They further alleged that defendants had exercised their visitation rights only sporadically, and that the child had received less than adequate care when in defendants' custody. Finally, they asserted that the child recently indicated that he no longer wished to visit with defendants. Defendants responded with a motion to compel visitation and counseling, and a request for attorney fees.
Following a hearing, the court referred the matter to the friend of the court regarding the visitation and counseling issues, and the court amended its original visitation order but still allowed for visitation. Following the evaluation of the friend of the court, the referee concluded that, because plaintiffs still maintained that defendants were not entitled to visitation rights and because defendants lacked standing to pursue visitation, visitation should be terminated and the parties should not be made to attend counseling. Defendants filed written objections to the friend of the court recommendations, and plaintiffs moved to adopt the report and the recommendations.
Ultimately, the circuit court entertained oral arguments from the parties with regard to the issue of visitation. The court ruled that defendants did have standing as aunts and uncle of the minor child to pursue visitation. The court explained that its finding on standing was based on defendants' relation to the deceased mother of the minor child, and because the child was in the sole custody of the mother throughout his life and until her death. The court recognized that the child had a relationship with the mother's family and opined that termination of that relationship would not be in the best interests of the child. Therefore, the court entered an order granting defendants visitation rights with the minor child every other weekend, two weeks over the summer, every other year at Thanksgiving, and on a rotating basis on either Christmas Eve or Christmas day each year. Plaintiffs objected that the court was making its finding without an evidentiary hearing; however, the court responded that although it was not opposed to an evidentiary hearing, there was nothing on the record at that time to suggest that the child was in danger or that a relationship with defendants was not in the best interests of the child.
The issue presented for consideration in this appeal is whether defendants, as the maternal aunts and uncle of the child, have standing to maintain a third-party action for court-ordered visitation of the minor child pursuant to the Child Custody Act, M.C.L. § 722.21 et seq.; MSA 25.312(1) et seq. We conclude that they do not. Statutory construction and the determination whether a party has legal standing are questions of law that we review de novo. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).
Defendants rely on M.C.L. § 722.26c; MSA 25.312(6c) to support their claim of standing. The statute provides, in pertinent part, as follows:
(1) A third person may bring an action for custody of a child if the court finds ...:
* * *
(b) All of the following:
(i) The child's biological parents have never been married to one another.
(ii) The child's parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order.
(iii) The third person is related to the child within the fifth degree by marriage, blood, or adoption.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993). The rules governing statutory construction require that every word or phrase of a statute be given its commonly accepted meaning. Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 539, 565 N.W.2d 828 (1997). Indeed, the Legislature is presumed to have intended to include the words and meaning it plainly expressed. Nation v. W.D.E. Electric Co., 454 Mich. 489, 494, 563 N.W.2d 233 (1997). Thus, judicial construction is not necessary or permitted where the plain and ordinary meaning of the language is clear. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992).
We conclude that defendants do not have standing to seek visitation...
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