Cody Boyd v. Amanda Friskey ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CODY BOYD, UNPUBLISHED
February 28, 2019
Plaintiff-Appellee,
v No. 341660
Oakland Circuit Court
Family Division
AMANDA FRISKEY, LC No. 2017-858856-DP
Defendant-Appellee,
and
TOMMY JAY SMITH,
Intervening Defendant-Appellant.
Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.
PER CURIAM.
On delayed application for leave to appeal,1 intervening defendant challenges the trial
court’s order granting plaintiff’s motion for reconsideration and an extension of time to bring an
action under the Revocation of Paternity Act (“ROPA”), MCL 722.1431 et seq. We reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
The minor child was born on October 13, 2013. One day later, defendant and intervening
defendant signed an acknowledgment of parentage form (“AOP”). Defendant and intervening
defendant married approximately two weeks later.
1
Boyd v Friskey, unpublished order of the Court of Appeals, entered January 31, 2018 (Docket
No. 341660).
On July 24, 2016, defendant filed a complaint for divorce against intervening defendant.
In the divorce action, defendant filed a “motion to exclude” intervening defendant as the child’s
legal father and indicated that DNA (deoxyribonucleic acid) testing revealed that, in fact,
plaintiff was the child’s biological father, not intervening defendant. Defendant asked the
divorce court to name plaintiff as the child’s legal father. On September 27, 2016, the trial court
signed an order granting plaintiff’s ex parte motion to intervene in that divorce action “under the
Revocation of Paternity Act.” However, on October 3, 2016, defendant’s complaint for divorce
was dismissed because defendant and intervening defendant had reconciled. According to
plaintiff, he did not receive notice of the dismissal of defendant and intervening defendant’s
divorce action.
Plaintiff then filed a “complaint for paternity” solely against defendant on December 16,
2016. The matter was handled by the same judge that had been assigned the previously
dismissed divorce action. Plaintiff’s paternity complaint did not reference ROPA nor did it name
intervening defendant as a party. Plaintiff alleges that it was only after seeing defendant’s
response to a motion filed in the paternity action that he learned there was an AOP. Therefore,
on March 27, 2017, plaintiff filed an amended complaint for a revocation of the AOP under the
ROPA. Notably, plaintiff’s amended complaint identified intervening defendant only as an
interested party.
Defendant filed a motion to dismiss plaintiff’s complaint on various grounds, one of
which was that plaintiff’s action for revocation of parentage was not timely pursuant to MCL
722.1437(1), which provides that an action for revocation of an AOP “shall be filed within 3
years after the child’s birth or within 1 year after the date that the acknowledgment of parentage
was signed, whichever is later.” The trial court agreed and on May 25, 2017, it entered an order
dismissing plaintiff’s complaint.
On June 20, 2017, plaintiff filed a motion for reconsideration and, alternatively, an
extension of time in which to file his ROPA complaint. Plaintiff argued that both his
intervention in the divorce action as well as his complaint for paternity were timely and complied
with MCL 722.1437(1). In the event the trial court disagreed, plaintiff requested an extension of
time to file his complaint pursuant to MCL 722.1443, which allows an extension of time when a
party, by affidavit, can demonstrate that he was unable to bring the action in a timely manner due
to mistake of fact, newly discovered evidence, fraud, or misrepresentation. Plaintiff noted that
he would be “executing a more thorough affidavit” in support of his motion for an extension of
time pursuant to MCL 722.1443. In July 2017, plaintiff authored an affidavit “in support” of his
motion for reconsideration. However, according to the register of actions, plaintiff did not
formally file his affidavit with the trial court until November 20, 2017.
Nevertheless, on September 7, 2017, the trial court entered an order granting plaintiff’s
motion for reconsideration based, in part, on the averments in plaintiff’s untimely and yet-to-be-
filed affidavit. The trial court ruled that plaintiff was not required to file the affidavit in support
of his motion for an extension of time because “a strict reading of MCL 722.1443(12)” did not
require a supporting affidavit to be contemporaneously filed with a motion for an extension of
time. The trial court ultimately granted plaintiff’s motion for reconsideration and extension of
time, making the following observations:
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The court is satisfied from Plaintiff’s affidavit, Defendant’s pleadings in
Case No. 16-319007-DM and Exhibit #3 of Plaintiff’s Supplemental Motion [text
messages] that through at least September 30, 2016, 13 days before the child’s
third birthday, Defendant was representing to the Plaintiff that she intended for
him to become the child’s legal father, was discussing a future custody agreement
and was discussing plans for the child. Defendant had filed pleadings in her
divorce case to that effect, she had asked the court to revoke her husband’s
paternity to the child and asked that the Plaintiff be named the child’s legal father.
Additionally, Plaintiff had successfully intervened in the divorce seeking paternity
before the child was 3 years of age. It is possible that Plaintiff continued to rely
on Defendant’s representations on or after the child’s third birthday.
Nevertheless, the court is satisfied that within days of the child turning 3 years of
age, the Defendant was representing that she wanted Plaintiff to be the legal father
of the child and was in the process of attempting to seek a court remedy to that
effect. Furthermore, in Defendant’s divorce case, Plaintiff was properly before the
court, seeking paternity, having filed a proper motion asserting his claims under
the Revocation of Paternity Act, before the child turned 3 years of age and before
Defendant dismissed the divorce.
The court is satisfied that under MCL 7222.1443(12)(d) Defendant made
substantial misrepresentations and due to those misrepresentations Plaintiff did
not file the action within the time allowed under the Revocation of Paternity Act.
Such misrepresentations as well as general equity and justice, dictate and justify
that this court grant an extension of time under the act.
On October 4, 2017, intervening defendant filed a petition to intervene in the ROPA case
and a motion to dismiss plaintiff’s complaint. Intervening defendant argued that plaintiff failed
to include intervening defendant, the child’s acknowledged father, as a necessary party.
Intervening defendant further argued that the complaint should be dismissed because plaintiff
filed his complaint in Genesee County when, pursuant to MCL 722.1443(2), plaintiff should
have filed his complaint in Oakland County, where defendant and the child resided.
On November 9, 2017, the trial court entered an order permitting intervening defendant
to intervene. It also ordered the case be transferred to Oakland County pursuant to MCL
722.1443(1) because defendant and the child resided in Oakland County.
Intervening defendant now appeals by leave granted, challenging the trial court’s
September 7, 2017, order granting plaintiff’s motion for reconsideration and permitting plaintiff
an extension to file his ROPA complaint.
II. STANDARDS OF REVIEW
A trial court’s grant or denial of a motion for reconsideration is reviewed for an abuse of
discretion. Sherry v East Suburban Football League, 292 Mich. App. 23, 31; 807 NW2d 859
(2011). “ ‘An abuse of discretion occurs when the decision results in an outcome falling outside
the range of principled outcomes.’ ” Id., quoting Barnett v Hidalgo, 478 Mich. 151, 158; 732
NW2d 472 (2007).
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“This Court reviews de novo questions of statutory interpretation.” Kalin v Fleming, 322
Mich. App. 97, 100; 910 NW2d 707 (2017). This Court also reviews de novo “questions
regarding whether an action is barred by a period of limitations.” Stenzel v Best Buy Co, Inc, 320
Mich. App. 262, 274; 906 NW2d 801 (2017), lv gtd 501 Mich. 1042 (2018).
“We review a trial court’s factual findings regarding a revocation of paternity action for
clear error.” Kalin, 322 Mich. App. at 100. “ ‘The trial court has committed clear error when this
Court is definitely and firmly convinced that it made a mistake.’ ” Id., quoting Rogers v Wcisel,
312 Mich. App. 79, 86; 877 NW2d 169 (2015).
III. ROPA
At issue in this case is whether plaintiff timely asserted his ROPA action and, if not,
whether plaintiff was entitled to an extension of time.
“The [ROPA] defines an ‘acknowledged father’ as ‘a man who has affirmatively held
himself out to be the child’s father by executing an acknowledgment of parentage under the
acknowledgment of parentage act, . . . MCL 722.1001 to 722.1013.’ MCL 722.1433(a).” Kalin,
322 Mich. App. at 101. “A signed acknowledgment of parentage ‘establishes paternity . . .’ ” Id.,
quoting MCL 722.1004. Here, intervening father was the child’s legal father and had established
paternity.
Under the ROPA, “[t]he child’s ‘mother, the acknowledged father, an alleged father, or a
prosecuting attorney may file an action for revocation of an acknowledgment of parentage.’ ”
Kalin, 322 Mich. App. at 101, quoting MCL 722.1437(1). Pursuant to MCL 722.1437(4), an
action for revocation of an acknowledgment of parentage “shall be supported by an affidavit
signed by the person filing the action that states facts” that “constitute” one of the following five
statutory grounds for revocation:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been
found before the acknowledgment was signed.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress in signing the acknowledgment.
MCL 722.1437(1) requires “The term ‘shall’ is mandatory.” Kalin, 322 Mich. App. at 101.
“Accordingly, MCL 722.1437 provides no basis under which a parent may file an action for the
revocation of paternity later than three years after the child’s birth or later than one year after the
signing of the acknowledgment of parentage.” Id. at 101-102.
However, MCL 722.1443(12) provides:
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A court may extend the time for filing an action or motion under this act.
A request for extension shall be supported by an affidavit signed by the person
requesting the extension stating facts that the person satisfied all the requirements
for filing an action or motion under this act but did not file the action or motion
within the time allowed under this act because of 1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been
found earlier.
(c) Fraud.
(d) Misrepresentation or misconduct.
(e) Duress.
Put another way, “MCL 722.1443(12) requires that the person requesting the extension show that
[he] did not timely file the action because of one of the five listed exceptions.” Kalin, 322 Mich
App at 103.
For the reasons below, we hold that plaintiff failed to bring a timely ROPA action and
was not entitled to an extension.
IV. FAILURE TO ADD A NECESSARY PARTY
Intervening defendant argues that the trial court was required to dismiss plaintiff’s action
for failure to include him as a necessary party. We agree.
In Graham v Foster, 311 Mich. App. 139; 874 NW2d 355 (2015), aff’d in part, vacated in
part 500 Mich. 23; 893 NW2d 319 (2017), the “alleged father”2 had an affair with the child’s
mother and the child was the result of that affair. However, because the mother was married at
the time of the child’s conception and birth, her husband was the “presumed father.”3 The
alleged father brought a timely ROPA action, but named only the mother. The mother then
moved for summary disposition, arguing in part that her husband was a necessary party to the
action and that, because the time for bringing an action had expired, the alleged father could no
longer add the presumed father to the case. She argued that dismissal for failure to add a
necessary party was required. The trial court disagreed and denied the mother’s motion for
summary disposition. Id. at 140-142.
2
The ROPA defines an “alleged father” as “a man who by his actions could have fathered the
child.” MCL 722.1433(c).
3
The ROPA defines “presumed father” as “a man who is presumed to be the child’s father by
virtue of his marriage to the child’s mother at the time of the child’s conception or birth.” MCL
722.1433(e).
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This Court held that because a successful action by the alleged father would effectively
“strip” the presumed father of his legal interest in parenting the child, the presumed father had to
be afforded an opportunity to defend his interests and was, in fact, a necessary party. Id. at 144-
145. However, this Court further concluded that the alleged father’s failure to name the
presumed father was not fatal to his claim because the alleged father brought a timely motion
under ROPA, naming the mother and the presumed father would “merely be added as a
necessary party.” Id. at 145.
Our Supreme Court agreed that the presumed father was a necessary party to the action
because a determination that the child was born out of wedlock and that the alleged father was
the child’s legal father would necessarily terminate the presumed father’s parental rights.
Graham v Foster, 500 Mich. 23, 28-29; 893 NW2d 319 (2017). As such, the presumed father
had an interest in the subject matter and his presence in the action was essential to permit the
court to render complete relief within the meaning of MCR 2.205(A).4 Graham, 500 Mich. at 28-
29.
However, the Supreme Court also held that this Court erred by implicitly determining
that the mother could assert the statute of limitations defense when that defense was personal to
the presumed father, who had not been joined in the action. The Court further determined that
this Court erred by deciding the merits of the presumed father’s statute of limitations defense
when he had not been joined in the action and had not raised the issue. Graham, 500 Mich. at 29-
30. Therefore, the Supreme Court vacated this Court’s opinion to the extent that it analyzed
whether the presumed father could avail himself of the statute of limitations defense. Id. at 31.
Here, we discern no reason to treat intervening defendant – an acknowledged father – any
differently than the presumed father in Graham. Intervening defendant is the child’s legal father.
Plaintiff’s claim, if successful, would effectively terminate intervening defendant’s parental
rights. As such, intervening defendant was a necessary party to plaintiff’s claim.
Plaintiff acknowledges the implication of Graham but argues that, here, intervening
defendant “is essentially claiming that the court did not dismiss the case for failing to add him as
a necessary party without having asserted that defense which, as in Graham, is only available to
himself.” However, the case before us is distinguishable from Graham because intervening
defendant (an acknowledged father) has asserted the statute of limitations defense.
Additionally, we conclude that the relation-back doctrine has no applicability in this case.
In Miller v Chapman Contracting, 477 Mich. 102, 105; 730 NW2d 462 (2007), our Supreme
Court rejected the notion that the “relation-back doctrine” includes the addition of new parties.
The Court held that although the addition of new claims arising out of the same conduct,
transaction, or occurrence, generally relates back to the date on which the complaint was filed,
4
MCR 2.205(A) provides: “Necessary Joinder. Subject to the provisions of subrule (B) and
MCR 3.501, persons having such interests in the subject matter of an action that their presence in
the action is essential to permit the court to render complete relief must be made parties and
aligned as plaintiffs or defendants in accordance with their respective interests.”
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the doctrine does not apply to the addition of new parties. “Where . . .the plaintiff seeks to
substitute or add a wholly new and different party to the proceedings, the misnomer doctrine is
inapplicable.” Id. at 107. We hold that the same is true in the case before us. Adding
intervening defendant to the plaintiff’s action is not simply a correction. Instead, as an
acknowledged father, intervening defendant was critically necessary in determining paternity.
Even if the relation-back doctrine was applicable, we ask – relate back to what?
Plaintiff’s December 2016 paternity action wherein he names only defendant is still untimely
under the ROPA. That is, even if we concluded that plaintiff’s amended complaint relates back
to his December 2016 paternity action, it would not comply with MCL 722.1437, which provides
no basis under which a parent may file an action for the revocation of paternity later than three
years after the child’s birth or later than one year after the signing of the acknowledgment of
parentage. The latest date plaintiff could have filed the ROPA action was when the child turned
three on October 13, 2016.
Nor are we persuaded that the action plaintiff took during defendant’s now dismissed
divorce proceeding preserved his revocation claim. Plaintiff was not legally entitled to intervene
in defendant’s pending divorce. “Domestic relations actions are strictly statutory. The only
parties to a divorce action are the two people seeking dissolution of their marriage.” Killingbeck
v Killingbeck, 269 Mich. App. 132, 140 n 1; 711 NW2d 759 (2005). In fact, “third parties can be
joined in [a] divorce action only if they have conspired with one spouse to defraud the other
spouse of a property interest.” Estes v Titus, 481 Mich. 573, 583; 751 NW2d 493 (2008). A
child’s biological father may not simply intervene in a divorce case. “[His] sole recourse on any
issue involving his [child] was in the paternity action, not in the divorce action.” Killingbeck,
269 Mich. App. 140 n 1. As a matter of law, plaintiff’s sole recourse was a separate paternity or
ROPA action; he was not entitled to intervene in the divorce action. While defendant, as the
child’s mother, had every right to adjudicate the child’s paternity in the divorce action and had,
in fact, initially requested the same relief that plaintiff seeks, defendant and intervening
defendant reconciled and dismissed the divorce action before the issue was adjudicated.5
We hold that, as a matter of law, intervening defendant was the child’s legal father and
essential to plaintiff’s revocation action. Plaintiff’s failure to name intervening defendant was
fatal to his revocation action because, as has been discussed, the relation-back doctrine has no
application to the facts before us. The question then becomes whether plaintiff was entitled to an
extension of time to file his revocation claim.
IV. FAILURE TO PROPERLY APPLY 722.1443
5
However, it must be noted that even if defendant was successful in obtaining a ruling that
intervening defendant was not the child’s biological father, he still was entitled to litigate that he
was the child’s equitable father within the confines of the divorce action. See, Atkinson v
Atkinson, 160 Mich. App. 601 608-609; 408 NW2d 516 (1987)
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Intervening defendant contends that the trial court erred when it granted plaintiff an
extension of time because the trial court erred in its application of MCL 722.1443(12) and (13).
We agree.
Again, MCL 722.1443(12) permits a court to extend the time for filing an action beyond
the three-year limitation if an individual can show that he did not file within the allowed time
due to mistake of fact, newly discovered evidence that due diligence would not have revealed;
fraud, misrepresentation or misconduct, or duress. That is, “MCL 722.1443(12) requires that the
person requesting the extension show that [he] did not timely file the action because of one of the
five listed exceptions.” Kalin, 322 Mich. App. at 103.
Paradoxically, the trial court found that defendant made substantial misrepresentations to
plaintiff that resulted in plaintiff’s failure to file an action under the ROPA within the time
limitation provided by MCL 722.1437(1), and that plaintiff had properly filed a “motion
asserting his claims under the Revocation of Paternity Act” in defendant and intervening
defendant’s divorce within the time limitation provided by MCL 722.1437(1). If plaintiff timely
filed “claims under the Revocation of Paternity Act” in defendant and intervening defendant’s
divorce, then it is unclear how defendant’s misrepresentations resulted in plaintiff’s failure to
timely file such a claim. Therefore, the trial court clearly erred when it found that defendant’s
misrepresentations prevented plaintiff from timely filing his claim under the ROPA.
Additionally, the trial court explained that it was also granting plaintiff’s motion for an
extension of time in part on the grounds of “general equity and justice[.]” The trial court opined
that defendant’s misrepresentations and misconduct warranted granting the extension. However,
“general equity and justice” are not among the grounds provided for an extension of time under
MCL 722.1443(12). While courts of this state seek to do equity in family law matters, they can
only do so within the confines of the applicable statutes.
Moreover, regardless of the propriety of the trial court’s determination, the trial court
erred in its interpretation of the language requiring that a putative father file an affidavit
accompanying his motion. MCL 722.1443(12) provides that “[a] request for extension shall be
supported by an affidavit signed by the person requesting the extension stating facts that the
person satisfied all the requirements for filing an action or motion under this act but did not file
the action or motion within the time allowed under this act because of 1 of the following . . .”
The trial court reasoned:
Although the affidavit was not submitted contemporaneously with the
motion for reconsideration and request for extension of time, a strict reading of
MCL 722.1443(12) does not require it. The only requirement is that the request
be supported by an affidavit, without mandating that it be submitted at the same
time as the request. In any event, if such a requirement existed, any procedural
defect would have been cured.
We hold that the language stating that “[a] request for extension shall be supported by an
affidavit” requires that an affidavit be filed contemporaneously with the request for extension. In
Helton v Beaman, 304 Mich. App. 97, 103; 850 NW2d 515 (2014), we addressed the sufficiency
of an alleged father’s affidavit even though the parties did not specifically address that issue
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“because a determination of the sufficiency of the affidavit is a requisite step in the analysis
prescribed by MCL 722.1437.” Helton, 304 Mich. App. at 103 n 4. In fact, only after a trial court
deems an affidavit sufficient may it order DNA testing under MCL 722.1437(2). It follows,
then, that a motion for extension of time under MCL 722.1443(12) must be likewise
accompanied by an affidavit setting forth the factual basis for a party’s failure to bring a timely
action.
Here, plaintiff filed his motion for reconsideration and request for extension on June 20,
2017. His affidavit in support of his motion was signed and notarized on July 25, 2017. The
affidavit was not filed with the trial court until November 2017. The trial court clearly erred in
relieving plaintiff of his procedural obligations.
Finally, even though the trial court found that plaintiff’s affidavit under MCL
722.1443(12) was sufficient, the trial court’s order is silent with regard to MCL 722.1443(13),
which provides:
If the court finds that an affidavit under subsection (12) is sufficient, the court
may allow the action or motion to be filed and take other action the court
considers appropriate. The party filing the request to extend the time for filing
has the burden of proving, by clear and convincing evidence, that granting relief
under this act will not be against the best interests of the child considering the
equities of the case.
There is no indication that the trial court found that plaintiff had fulfilled his “burden of proving,
by clear and convincing evidence, that granting relief under this act will not be against the best
interests of the child considering the equities of the case.” Therefore, the trial court failed to
complete the analysis required by MCL 722.1443.
Reversed and remanded with instructions to dismiss plaintiff’s amended complaint. We
do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Anica Letica
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