GOOD MORNING FLINT!
SATURDAY 11/22/08
BY Terry Bankert
Issues:
1.BIOLOGICAL FATHER TRYING TO AVOID PAYING OF CHILD SUPPORTS WANTS THE EX HUSBAND TO PAY EVEN THOUGH DNA SHOW WHO THE FATHER IS?
Paternity action; Whether the defendant-L. (biological father) had standing to assert equitable estoppel prevented third-party defendant-R. (plaintiff-mother's former spouse) from "revoking" paternity; Dressel v. Ameribank; Maiden v. Rozwood; West v. General Motors Corp.; Corley v. Detroit Bd. of Educ.; Karbel v. Comerica Bank; Killingbeck v. Killingbeck; Tanielian v. Brooks; MCR 2.204(A)(1);
2.BIO DAD FRANTIC TO AVOID PAYING CHILD SUPPORT YELLS " EQUITABLE ESTOPPEL, THE COURTS SAY ...NOT!
Whether the trial court's failure to conduct a hearing on the issues of equitable estoppel and the "equitable parent" doctrine denied defendant procedural due process; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Reed v. Reed;
3.BIO DADA SAYS MOM SHOULD NOT HAVE BEN ALLOWED TO START ACTION AGAINST BIO DAD.
Whether plaintiff had standing to initiate the paternity action; Manuel v. Gill; Barnes v. Jeudevine; Opland v. Kiesgan;
4.BIO DAD SAYS THIS BABY NEEDED A GUARDIAN AD LITEM
Whether the trial court erred in failing to appoint a guardian ad litem; Fletcher v. Fletcher; The Child Custody Act (MCL 722.21 et seq.); The Paternity Act; Sinicropi v. Mazurek;
5.ATTORNEYS FEES?
Whether the trial court should have awarded attorney fees under MCR 7.216(C)(1)(a) and (2); MCR 7.211©)(8)
-[This case as presented has been modified for media presentation. Consult the original and an attorney before you rely on its contents. Terry Bankert 11/22/08]
--
SUMMARY-THE UPPER COURT AGREED WITH THE LOWER COURT
[long version at http://goodmorningflint.blogspot.com/2008/11/bio-dad-told-bt-court-of.html ]
6.BIO DAD CANNOT CHALLENGE A DIVORCE JUDGEMENT WHERE HUSBAND SAYS " THAT BABY’S NOT MINE" AND MOM AGREES.
The court held the defendant-L. (the biological father) lacked standing to challenge third-party defendant-R.'s (plaintiff-mother's former husband) support obligation.
7.BABIES ARE PRESUMED OF THE MARRIAGE UNLESS A COURT SAYS THE CHILD IS NOT.
Although B. was born during plaintiff's marriage to R., plaintiff and R. stipulated in their consent judgment of divorce R. was not B.'s biological father.
8.AFTER THE COURT SAYS THE CHILD NOT OF THE MARRIAGE MOM HAS A RIGHT TO SEEK FINANCIAL ASSISTANCE FROM THE REAL FATHER.
Plaintiff subsequently initiated the instant paternity suit against L. seeking an order of filiation and child support payments.
9.DNA SAYS YOU’RE THE DADDY.
A DNA test indicated a 99.999997 percent probability L. is B.'s biological father.
10.BIO DAD SAYS THE COURT IS WRONG .HUSBAND HELD HIMSELF OUT TO BE THE FATHER, YOU SHOULD NOT HAVE LET HIM OFF THE HOOK.
L. argued he had standing to assert equitable estoppel prevented R. from "revoking" paternity where R. "held himself out" to be B.'s father before R. and plaintiff divorced.
11.THE COURT TELL BIO DAD:" GET OUT OF THE ROOM". YOU DON’T BELONG HERE ON THE ISSUE OF THE DIVORCE BETWEEN MOM AND HUSBAND.
The court held under Tanielian, the biological father "is not the proper party to raise this argument," as he "cannot ‘appeal' from the judgment of divorce in which [the mother] and [the former husband] were parties."
12.COURT TELL BIO DAD EVEN IF YOU ARE RIGHT YOU DON’T GET ANYTHING(REMEDY).
Even if R. were considered B.'s "equitable parent," R. would not be liable to L., he would be liable to B., the child. Affirmed.
13.WHERE DID THIS COME FROM?
S T A T E O F M I C H I G A N C O U R T O F A P P E A L S
JEAN E. IRWIN,Plaintiff-Appellee,UNPUBLISHED,e-Journal Number: 41074
November 18, 2008,v No. 285398,Macomb Circuit Court,LEO OLIVER GENNETTE, LC No. 2007-005456-DP,Defendant/Third-Party-Plaintiff-Appellant, v RICHARD IRWIN
Third-Party-Defendant/Appellee.Before: Zahra, P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
-
14.THE LOWER COURT GRANTED SUMMARY DISPOSITION AGAINST BIO DAD
Defendant/Third-Party-Plaintiff (defendant) appeals as of right the trial court’s order
granting plaintiff’s motion for summary disposition and determination of paternity.
THE COURT OF APPEALS AGREED.
We affirm.
15.BACKGROUND
This case arises out of the paternity determination regarding Bret Irwin, plaintiff’s son.
Although born during plaintiff’s marriage to third-party-defendant, Richard Irwin, plaintiff and
Richard stipulated in their consent judgment of divorce that Richard was not Bret’s biological
father. Plaintiff subsequently initiated the instant paternity suit against defendant seeking an
order of filiation and child support payments. A DNA test indicated a 99.999997 percent
probability that defendant is Bret’s biological father. On appeal, defendant argues that he has
standing to assert that equitable estoppel prevents Richard from "revoking" paternity where
Richard "held himself out" to be Bret’s father before he and plaintiff divorced. We disagree.
16.WHAT IS A MOTION FOR SUMMARY DISPOSITION?
This Court reviews de novo an appeal from an order granting summary disposition
pursuant to MCR 2.116©)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151
(2003). A motion for summary disposition pursuant to MCR 2.116©)(10) should be granted
when the moving party is entitled to judgment as a matter of law because there is no genuine
issue of material fact. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A
genuine issue of material fact exists when reasonable minds could differ after drawing
reasonable inferences from the record. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003). In reviewing this issue, the Court must consider the pleadings, affidavits,
depositions, admissions, and other documentary evidence and construe them in light most
favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d
342 (2004). If the nonmoving party would bear the burden of proof at trial, that party must show
there is a genuine issue of material fact by setting forth documentary evidence. Karbel v
Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69 (2001).
17.WHAT IS A DE NOVO REVIEW?
This Court employs a de novo standard of review to issues concerning the applicability of equitable estoppel and the equitable parent doctrine, as well as the issue of standing. Killingbeck v Killingbeck, 269 Mich App 132, 141; 711 NW2d 759 (2005).
18.WHAT IS STANDING
The issue of standing to address such equitable claims was addressed by this Court in
Tanielian v Brooks, 202 Mich App 304, 508 NW2d 189 (1993).
18.A There, a child was born during
the Tanielians marriage to whom the husband was not the biological father. The Tanielians
divorced and the divorce decree was later modified terminating the former husband’s parental
rights to the child. The child’s mother filed a paternity action requesting the biological father
pay child-support. The biological father then filed a third-party complaint alleging that the
former husband was the "equitable" parent of the child and obligated to pay the child support
requested in the mother’s complaint against him.
18.B.This Court noted that "MCR 2.204(A)(1) provides in part that ‘a defending party, as a
third-party plaintiff, may serve a summons and complaint on a person not a party to the action
who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claim.’"
Tanielian, supra at 308. Tanielian opined that, "[e]ven if defendant were successful in
demonstrating that under certain circumstances [the former husband] might have been held to be
obligated to support [the child], it cannot be said that [the former husband] is a person who is
liable to [the biological father] for any part of [the mother’s] claim." Id. In other words, even if
Richard were considered Bret’s "equitable parent," Richard would not be liable to defendant; he
would be liable to Bret. For this reason the Tanielian court concluded that, "[d]efendant cannot
alter his child support obligations by finding another party upon whom that obligation might
otherwise have fallen." Id.
Tanielian further noted that the biological father "has no standing to raise the issue of
[the former husband’s] potential support obligation." Supra at 309. This Court stated that the
biological father "is not the proper party to raise this argument," as he "cannot ‘appeal’ from the
judgment of divorce in which [the mother] and [the former husband] were parties." Tanielian is
indistinguishable from the present case. We therefore conclude that defendant lacks standing to
challenge Richard’s support obligation.
19.BIO DAD YELLS..I DID NOT GET MY HEARING..YOU HAVE DENIED MY RIGHTS
Next, defendant argues that the trial court’s failure to conduct a hearing on the issues of
equitable estoppel and the equitable parent doctrine denied him procedural due process. We
disagree.
20.THE COURT SAYS ..YOUR WRONG, MOOT AND JUST GENERALLY SHOULD NOT BE HERE..GO GET YOUR LIFE LIBERTY AND PURSUIT OF HAPPINESS IN A DIFFERENT CASE.
Our conclusion that defendant lacks standing to assert these equitable claims renders
this issue moot—a party that lacks standing has no due process to be heard.
21. BIO DAD WITH DUE RESPECT EVEN IF YOU COULD BE HERE YOUR DUE PROCESS WAS NOT OFFENDED
Even if the defendant had standing to assert these equitable claims, defendant’s due process claims would nonetheless fail. "The United States and Michigan constitutions preclude the government from depriving a person of life, liberty, or property without due process of law." Hinky Dinky Supermarket, Inc v Dep’t of Community Health, 261 Mich App 604, 605; 683 NW2d 759 (2004) US Const, AmXIV; Const 1963, art 1, § 17. "[D]ue process is a flexible concept, the essence of which is to ensure fundamental fairness. Procedure in a particular case is constitutionally sufficient when there is notice of the nature of the proceedings and a meaningful opportunity to be heard by an impartial decision maker." Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005).
21 A..Defendant was not denied procedural due process.
21.B.First, the consent judgment of divorce does not in any way incorporate defendant in the divorce proceedings.
21.C.To the contrary, the divorce judgment specifically pertained to the determination that Richard was not Bret’s father and indicated plaintiff’s agreement to seek an order of filiation with respect to Bret.
21.D. IT’S THE REQUEST FOR MONEY NOT THE DIVORCE THAT GOT YOUR ATTENTION BIO DAD. GETOUTTTAHERE!
It is [mom’s]plaintiff’s attempt to seek a filiation order and not her divorce action that brings defendant into litigation. Defendant has been given full and complete notice and a meaningful opportunity to be heard in this paternity litigation. Consequently, defendant has not been denied any procedural due process rights.1
22.BIO DAD SAYS THAT MOM HAS NO RIGHT TO HIS MONEY FOR THE CHILD.
Defendant next contends that plaintiff lacked standing to initiate this paternity action
because the determination of Richard’s paternity in the consent judgment of divorce was
insufficient as a matter of law. We disagree. Whether a party has standing is reviewed de novo.
Manuel v Gill, 481 Mich 637, 642; 753 NW2d 48 (2008).
23. AFTER LAYING DOWN YOU GET STANDING IN A PATERNITY ACTION.MOM DID ALL SHE NEEDED TO DO TO GET YOUR RAGGED SELF INTO COURT FOR YOUR MONEY.
"[T]o have standing to seek a determination of paternity, it is necessary for plaintiff to
establish that a court ‘has determined’ that there was a child born or conceived during the
marriage and that the child was not an issue of the marriage[,]" i.e., that the child was "born out
of wedlock." Barnes v Jeudevine, 475 Mich 696, 703; 718 NW2d 311 (2006); MCL
722.711(a).2 In Opland v Kiesgan, 234 Mich App 352, 359-360; 594 NW2d 505 (1999),
24. A JUDGEMENT SAID HUSBAND NOT THE DADDY...[they were separated and had nothing to do with each other when bio daddy went to work!]
...this Court determined that an amended consent judgment of divorce sufficiently constituted a
prior determination overcoming the presumption of legitimacy where the judgment stated that the
court made a factual determination based on the parties’ stipulation "that although they were
married at the time [the child] was conceived, they were separated at that time and had no
opportunity for any sexual relationship."
25. THE DIVORCE COURT DID ITS JOB IT WAS SPECIFIC THE CHILD NOT OF THE MARRIAGE.
In contrast, the Supreme Court in Barnes found that the trial court failed to render a prior
determination overcoming the presumption of legitimacy where the default judgment of divorce
merely indicated that "there appeared to be no children born of or expected from the marriage."
Barnes, supra at 704. In arriving at this conclusion, the Court explained: "a court determination
under MCL 722.711(a) that a child is not ‘the issue of the marriage’ requires that there be an
1 Defendant also maintains that the trial court erred in refusing to allow additional discovery.
However, summary disposition may be appropriate where further discovery does not stand a
reasonable chance of uncovering further factual support for the opposing party. Hasselbach v
TG Canton, Inc, 209 Mich App 475, 482; 531 NW2d 715 (1994). Therefore, given that
defendant lacked standing to raise equitable estoppel and equitable parenthood, this argument
fails.
26.WHAT IS THE PATERNITY ACT?
2 The Paternity Act defines a "[c]hild born out of wedlock" as "a child begotten and born to a
woman who was not married from the conception to the date of birth of the child, or a child that
the court has determined to be a child born or conceived during a marriage but not the issue of
that marriage." MCL 722.711(a). affirmative finding regarding the child’s paternity in a prior legal proceeding that settled the controversy between the mother and the legal father." Id. at 705.
The judgment in this case satisfied the prior determination requirement regarding Bret’s
legitimacy. Although the court made no specific finding that plaintiff and Richard were
separated at the time of Bret’s conception, the court expressly questioned Richard during the
divorce proceeding in regard to whether he was Bret’s father. Additionally, the judgment was
not entered by default. Rather, like Opland, the judgment reflected the Irwins’ stipulation that
the child was not an issue of their marriage. This determination settled any controversy between
plaintiff and Richard in regard to Bret’s legitimacy. Therefore, the consent judgment of divorce
satisfied the prior determination requirement, and plaintiff had standing to bring the instant
paternity action.
26. GRASPING AT STRAWS BIO DAD WHINE...THERE SHOULD HAVE BEEN A GUARDIAN... IT’S A CONSPIRACY..POOR ME...
Finally, defendant asserts that the trial court erred in failing to appoint a guardian ad
litem. We disagree. Because "[t]o whom custody is granted is a discretionary dispositional
ruling," this Court reviews the court’s decision whether to appoint a guardian ad litem for an
abuse of discretion. Fletcher v Fletcher, 447 Mich 871, 880; 526 NW2d 889 (1994).
Defendant cites the Child Custody Act, MCL 722.21 et seq., in arguing that the trial court
failed to appoint a guardian ad litem. Although this is a paternity action, the Paternity Act and
Child Custody Act are to be considered in pari materia. Sinicropi v Mazurek, 273 Mich App
149, 157; 729 NW2d 256 (2006). "Statutes in pari materia are to be read and construed together
as one law even if they were enacted at different times and without specific reference to each
other." Id.
27. BIO DAD LACKED STANDING, HAD THE LAW WRONG, GETOUTAHERE
Defendant lacks standing to request a guardian ad litem given that he bases his request on
grounds of equitable estoppel. Indeed, as noted supra, defendant lacks standing to assert this
doctrine on Bret’s behalf. In any event, his argument fails.
28.WHAT IS A GUARDIAN AD LITEM
Regarding the appointment of a guardian ad litem, the Child Custody Act provides in
relevant part: "If, at any time in the proceeding, the court determines that the child’s best
interests are inadequately represented, the court may appoint a lawyer-guardian ad litem to
represent the child[.]" MCL 722.24(2).3 Defendant maintains that because Bret looked to
Richard as his father and because the Irwins conspired to terminate Richard’s obligations to Bret,
"Bret’s interests may have been compromised." However, there is no support in the record for
these allegations. To the contrary, in attempting to obtain an order of filiation, plaintiff was
acting in Bret’s best interests. Therefore, the court did not abuse its discretion in denying
defendant’s request for a guardian ad litem.
28.HUSBAND SAYS I WANT MONEY FOR HAVING TO HIRE A MOUTH PIECE TO DEFEND ME ON THESE LAME CLAIMS..LOSES
Richard argues that because defendant’s third-party complaint is frivolous, this Court
should award attorney fees under MCR 7.216(C)(1)(a) and (2). This claim fails.4 MCR
3 A guardian ad litem is defined as "an individual whom the court appoints to assist the court in
determining the child’s best interests." MCL 722.22(e).
4 We note that the trial court previously denied Richard’s request for sanctions on the grounds
7.216©) permits this Court on motion of a party under MCR 7.211©)(8)5 to assess damages,
including attorney fees, for appeals "taken for purposes of hindrance or delay or without any
reasonable basis for belief that there was a meritorious issue to be determined on appeal." Here,
Richard’s request for attorney fees is improper because he raised this issue in his brief rather than
in a separate motion under MCR 7.211©)(8).
I DID NOT KNOW THIS NOW I DO......
"A party’s request for damages or other disciplinary action under
MCR 7.216©) must be contained in a motion filed under this rule. A request that is contained in
any other pleading, including a brief filed under MCR 7.212, will not constitute a motion under
this rule. A party may file a motion for damages or other disciplinary action under MCR
7.216©) at any time within 21 days after the date of the order or opinion that disposes of the
matter that is asserted to have been vexatious
--
Posted here by
Terry Bankert 11/21/08
[CONSULT AN ATTORNEY BEFORE YOU RELY ON THE ABOVE .THERE HAVE BEEN MODIFICATIONS FOR MEDIA PRESENTATION]
http://attorneybankert.com/
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