Tammy Fedderson v. Kenneth Cadorette ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
TAMMY FEDDERSON, UNPUBLISHED
November 28, 2017
Plaintiff-Appellant,
v No. 333583
Oakland Circuit Court
KENNETH CADORETTE, LC No. 2006-719727-DP
Defendant-Appellee.
Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.
PER CURIAM.
Plaintiff appeals as of right an April 5, 2016, order setting aside an order of filiation and
dismissing her claim under the Paternity Act, MCL 722.711 et seq. for lack of subject-matter
jurisdiction. For the reasons set forth in this opinion, we reverse.
I. BACKGROUND
Plaintiff conceived a minor child, CF, while she was married to her now-deceased
husband. Her husband died three months after CF was born in September 2002. On April 11,
2006, plaintiff filed a complaint for paternity, alleging that she was “begotten with child” by
defendant on or about January 2002. Plaintiff did not allege that CF was “born out of wedlock.”
Plaintiff alleged that she gave birth to CF on September 10, 2002 and that defendant was the
child’s biological father. Defendant denied that he was the child’s biological father, and no
genetic blood testing was ever conducted.
The lower court conducted a trial on October 16, 2006 and thereafter entered an order of
filiation declaring defendant to be the father of the child. Over the course of several years after
entry of the order of filiation, defendant was delinquent in paying child support, resulting in the
issuance of numerous orders to show cause and bench warrants for defendant’s arrest. In 2010
and 2011, defendant filed motions in the lower court, arguing that the order of filiation should be
set aside and the resulting child support obligation should be canceled because he learned that
plaintiff had been collecting Social Security survivor’s benefits for the child, as the child of her
deceased husband to whom plaintiff was legally married on the date when she conceived the
child. On two separate occasions on April 6, 2011, and March 26, 2012, the trial court referred
the case to the Friend of the Court (FOC) for investigation and recommendation regarding child
support. However, the FOC never completed the investigations.
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In 2015, defendant was investigated for a felony charge for failure to pay child support,
and it was discovered that the April 6, 2011 and March 26, 2012 orders of reference to the FOC
for investigation and recommendation as to child support had not been completed. The FOC
commenced a set of hearings in an attempt to complete that investigation.
At a November 30, 2015 hearing, plaintiff testified that at the time CF was conceived,
plaintiff was married to an individual other than defendant. Plaintiff’s former husband died three
months after CF’s birth. Plaintiff testified that she received $2,325 per month in Social Security
benefits, including both disability benefits and survivor’s benefits. Of that amount, plaintiff
testified, she received $1,748 per month in Social Security survivor’s benefits for herself and all
of her minor children, including CF. Plaintiff testified that she received this amount, which was
the maximum family benefit, before the birth of CF.
On December 10, 2015, the FOC referee conducted a review of the relevant facts and
recommended that the order of filiation be set aside and that the case be dismissed for lack of
subject-matter jurisdiction. The referee explained as follows:
Michigan law is clear that a minor child cannot have two legal fathers. Pursuant
to the action filed by the Plaintiff, the Paternity Act . . . provides this Court with
subject matter jurisdiction to determine the parentage of a child, ONLY if a child
is “born out of wedlock”.
Since Plaintiff/Mother was married when the minor child was conceived, the child
was not born “out of wedlock” []
***
Since this Court lacked subject matter jurisdiction . . . to hear this case, the
subsequent Order of Filiation is void as a matter of law pursuant to MCR
2.612(C)(l)(d). Even if a genetic test had shown this Defendant to be biologically
the Father of this minor child, he could still not be established as the legal Father
absent a court determination that this minor child is not an issue of the marriage
between Plaintiff and Robin Fedderson.
Plaintiff objected to the referee’s recommendation, and after a de novo review of the
issues, the circuit court issued an order setting aside the order of filiation and dismissing the
paternity complaint for lack of subject-matter jurisdiction because plaintiff was married to a man
other than defendant at the time the child was conceived and her deceased husband had not been
excluded as the child’s legal father. The court denied plaintiff’s motion for reconsideration.
This appeal ensued.
II. STANDARD OF REVIEW
Plaintiff argues that the trial court erred in dismissing the complaint under the Paternity
Act. Interpretation and application of the Paternity Act and issues of subject-matter jurisdiction
involve questions of law that we review de novo. Sinicropi v Mazurek, 273 Mich. App. 149, 155;
729 NW2d 256 (2006).
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III. ANALYSIS
Plaintiff filed this action pursuant to the Paternity Act, MCL 722.711 et seq. “The act
was created as a procedural vehicle for determining the paternity of children ‘born out of
wedlock’, and enforcing the resulting support obligation.” Syrkowski v Appleyard, 420 Mich.
367, 375; 362 NW2d 211 (1985). The Paternity Act allows only specific parties to bring a
paternity action in circuit court: “the mother, the father, a child who became 18 years of age after
August 15, 1984 and before June 2, 1986, or the department of human services as provided in
this act.” MCL 722.714(1). The statute defines the term “mother” to mean “the mother of a
child born out of wedlock”, MCL 722.711(c), and defines the phrase “child born out of wedlock”
to mean “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). Therefore, under the
Paternity Act, “paternity can be properly established only if the child is ‘born out of wedlock’.”
Sinicropi, 273 Mich. App. at 164 (emphasis in original), quoting Aichele v Hodge, 259 Mich. App.
146, 161; 673 NW2d 452 (2003).
In Altman v Nelson, 197 Mich. App. 467, 473-474; 495 NW2d 826 (1993), this Court
discussed the difference between a court’s subject matter jurisdiction to hear a complaint under
the Paternity Act and a plaintiff’s standing to bring an action under the Paternity Act. In Altman,
in January 1988 the plaintiff-father filed a paternity complaint in which he alleged that he was
the biological father of the defendant-mother’s child and alleged—albeit incorrectly— that the
child was born out of wedlock in that the child was born to defendant when the defendant was an
unmarried woman. Id. at 469. In her answer, the defendant-mother denied that she was an
unmarried woman at the time of the child’s birth or thereafter. Id. In support of her denial, the
defendant-mother submitted a copy of a marriage license indicating that she was married several
years before the child’s birth, as well as a copy of the child’s birth certificate identifying the
defendant’s husband as the child’s father. Id. The defendant did not, however, raise the issue of
standing and the trial court did not address the issue. Id. After biological testing established that
the plaintiff was the father of the child, the trial court entered an order of filiation. Id. at 470.
Thereafter, the court entered a consent custody order in January 1991, granting the
plaintiff custody of the child. Id. Shortly thereafter, the defendant moved to dismiss the entire
case for want of jurisdiction. Id. The defendant alleged that the child had been born in wedlock
when the defendant was married to her husband and that the husband was therefore the legal and
equitable father of the child. Id. The defendant alleged that the trial court therefore had no
subject-matter jurisdiction over the action and its prior orders were void ab initio. Id. The trial
court agreed, holding that the plaintiff did not have standing under the Paternity Act; the trial
court also held that it did not have subject-matter jurisdiction at the time it entered the order of
filiation. Id. at 470-471. Therefore, the trial court voided all of its prior orders and ordered that
the child be returned to the defendant. Id. at 471.
On appeal, the plaintiff argued that the defendant never challenged his standing to
commence the paternity action and that the trial court had subject-matter jurisdiction over the
case. Id. The Altman panel explained that the trial court conflated standing with subject-matter
jurisdiction as follows:
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Subject-matter jurisdiction and standing are not the same thing.
Jurisdiction of the subject matter is the right of the court to exercise judicial
power over a class of cases, not the particular case before it; to exercise the
abstract power to try a case of the kind or character of the one pending. The
question of jurisdiction does not depend on the truth or falsity of the charge, but
upon its nature: it is determinable on the commencement, not at the conclusion, of
the inquiry. []
There is a wide difference between a want of jurisdiction, in which case
the court has no power to adjudicate at all, and a mistake in the exercise of
undoubted jurisdiction, in which case the action of the trial court is not void,
although it may be subject to direct attack on appeal. This fundamental
distinction runs through all the cases. When there is a want of jurisdiction over
the parties or the subject matter, no matter what formalities may have been taken
by the trial court, the action is void because of its want of jurisdiction.
Consequently, its proceedings may be questioned collaterally as well as on direct
appeal.
Where jurisdiction of the subject matter and the parties exist, errors or
irregularities in the proceedings, however grave, although they may render the
judgment erroneous and subject to be set aside in a proper proceeding for that
purpose, do not render the judgment void; until the judgment is set aside, it is
valid and binding for all purposes and cannot be collaterally attacked. Once
jurisdiction of the subject matter and the parties is established, any error in the
determination of questions of law or fact upon which the court’s jurisdiction in
the particular case depends is error in the exercise of jurisdiction. [Id. at 472-473
(citations omitted).]
Importantly, the Altman Court then noted that because “[s]ubject-matter jurisdiction over
paternity actions has been conferred by statute on the circuit court[,]” the trial court “had subject-
matter jurisdiction to consider plaintiff’s paternity action.” Id. at 473-475.
The Altman panel then moved on to the issue of standing, explaining as follows:
In contrast, standing relates to the position or situation of the plaintiff in
relation to the cause of action and the other parties at the time the plaintiff seeks
relief from the court. Generally, in order to have standing, a party must merely
show a substantial interest and a personal stake in the outcome of the controversy.
However, when the cause of action is created by statute, the plaintiff may be
required to allege specific facts in order to have standing. Such is the case in a
paternity action. In order to have standing to seek relief under the Paternity Act,
plaintiff must allege that the child was born out of wedlock. . . .
In his complaint, plaintiff alleged that he was the biological father of the
female child born to defendant when she was not married. He petitioned for an
order of filiation under the Paternity Act. By making such assertions and seeking
such relief, plaintiff requested the circuit court to exercise its subject-matter
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jurisdiction in paternity actions. Plaintiff’s failure to plead or prove sufficient
facts to support his standing did not deprive the circuit court of subject-matter
jurisdiction.
***
In the case before us, the trial court did not resolve the issues of marital
status and standing before entering the order of filiation. However, the defendant
mother did not appeal that decision. Having done nothing to contest that final
order during the past three years, even though represented by counsel, defendant
cannot now be heard to complain.
We conclude, therefore, that the allegations in plaintiff’s paternity
complaint were sufficient on their face to show that the circuit court had subject-
matter jurisdiction of the action, and that plaintiff claimed standing to bring the
action. Because the trial court had jurisdiction of the subject matter and of the
parties, the action taken by the trial court, though involving an erroneous exercise
of jurisdiction, was not void. . . . Accordingly, the trial court erred in vacating its
previous orders on the basis of a finding that they were void. [Id. at 475-477
(citations omitted; emphasis added).]
Following this Court’s decision in Altman, in Dep’t of Social Services v Baayoun, 204
Mich. App. 170, 173-174; 514 NW2d 522 (1994), this Court summarized the holding in Altman as
follows:
We initially note that subject-matter jurisdiction and standing are not the
same thing. [] Jurisdiction of the subject matter is the right of the court to
exercise judicial power over a class of cases. Subject-matter jurisdiction over
paternity actions has been conferred by statute on the circuit courts.
Standing, on the other hand, relates to the position or situation of the
plaintiff relative to the cause of action and the other parties at the time the
plaintiff seeks relief from the court . . . Where the cause of action is created by
statute, such as the instant case, the plaintiff may be required to allege specific
facts in order to have standing. In order to have standing under the Paternity Act,
the plaintiff must allege that the child was born out of wedlock. [Citations
omitted; emphasis added.]
In this case, the circuit court had subject-matter jurisdiction to hear this case. The case
involved a claim arising under the Paternity Act and “subject-matter jurisdiction over paternity
actions has been conferred by statute on the circuit court.” Altman, 197 Mich. App. at 473. Thus,
plaintiff’s paternity complaint fell within a “class of cases” over which the circuit court was
authorized to exercise jurisdiction. Id. Accordingly, the circuit court erred in concluding that its
prior orders were void ab initio for want of jurisdiction.
Although the circuit court had subject-matter jurisdiction, plaintiff was required to allege
certain facts in order to establish standing to bring her suit under the Paternity Act. As noted in
Altman, “[i]n order to have standing to seek relief under the Paternity Act, plaintiff must allege
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that the child was born out of wedlock.” Id. at 475; see also Baayoun, 204 Mich. App. at 173-174.
Here, plaintiff did not allege that CF was born out of wedlock. Therefore, she did not have
standing to bring a paternity action. Id. However, as noted above, given that subject-matter
jurisdiction is conferred by statute over the “class of cases” at issue here, plaintiff’s failure to
allege and prove facts to establish standing did not deprive the court of its subject-matter
jurisdiction. Id.
Moreover, the circuit court orders could not be collaterally attacked for lack of standing
as lack of standing pertains to an erroneous exercise of subject-matter jurisdiction, not a want of
subject-matter jurisdiction. See Altman, 197 Mich. App. at 477 (noting that “[b]ecause the trial
court had jurisdiction of the subject matter and of the parties, the action taken by the trial court,
though involving an erroneous exercise of jurisdiction, was not void. . . .”). Here, like in Altman,
issues of marital status and standing were never raised and resolved before the circuit court
entered the order of filiation and defendant never appealed the order of filiation; therefore,
defendant could not later collaterally attack that order. Id. The circuit court erred in declaring its
prior orders void.
Reversed. No costs awarded. MCR 7.219(A). We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ William B. Murphy
/s/ Amy Ronayne Krause
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