Johnson v. White

682 N.W.2d 505 (2004) 261 Mich. App. 332

Amelia D. JOHNSON, a/k/a Amy Johnson, and Harvey C. Johnson, Plaintiffs-Appellees,
v.
Gregory Darnell WHITE, Defendant-Appellant.

Docket Nos. 241414, 241992.

Court of Appeals of Michigan.

Submitted December 2, 2003, at Grand Rapids. Decided March 23, 2004, at 9:05 a.m. Released for Publication June 24, 2004.

Berecz & Klawiter, PLC, (by Marilyn Klawiter), St. Joseph, for the plaintiffs.

Varnum, Riddering, Schmidt & Howlett LLP (by Peter Armstrong), and Michael J. Steinberg and Kary L. Moss, and Lorray S.C. Brown and Lynelle D. Morgan, Grand Rapids, Detroit, Ann Arbor, for the defendant.

Before: SMOLENSKI, P.J., and SAWYER and BORRELLO, JJ.

SMOLENSKI, P.J.

Defendant violated the trial court's January 10, 2001, order granting plaintiffs grandparenting time when he moved his children to Colorado, thus circumventing plaintiffs' visitation. As a result, a judgment of contempt was entered against defendant. Defendant moved to vacate the court's order regarding grandparenting time, arguing that it was void ab initio pursuant to this Court's decision in DeRose v. DeRose, 249 Mich.App. 388, 643 N.W.2d 259 (2002), which held MCL 722.27b unconstitutional. Defendant asserted that because the grandparenting time order was void, the contempt order stemming from its violation was also void. The trial court denied defendant's motion to vacate the grandparenting time order, stating that the DeRose decision had no precedential value because, at the time, leave was pending before the Michigan Supreme Court and, therefore, the decision was not final. The court also refused to vacate the contempt judgment. Defendant appealed from both orders, and the appeals were consolidated.

Subsequently, the trial court waived jurisdiction in this matter in order for plaintiffs to seek enforcement of their grandparenting time in Colorado. Although this action renders the issue of the validity of the grandparenting time order moot, we address it here because of the significant public question it presents and the sheer certainty of this issue being raised on appeal again. Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002). We hold that the DeRose decision should be given full retroactive effect and vacate the trial court's January 10, 2001, order granting plaintiffs grandparenting time because the order is void ab initio. We also find that the court abused its discretion in refusing to vacate the April 22, 2002, judgment of contempt because it failed to give the DeRose decision its proper precedential effect. Accordingly, we reverse that order.

I. The DeRose decision

In 2000, the United States Supreme Court addressed the constitutionality of the state of Washington's third-party visitation statute in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Court found that the statute, on its face, unconstitutionally infringed on parents' fundamental rights under the federal constitution to rear their children. Id. at 62-64, 120 S.Ct. 2054. The Troxel decision led this Court to address the constitutionality of Michigan's grandparent visitation statute, MCL 722.27b. In DeRose, supra at 394-395, 643 N.W.2d 259, relying on the analysis in Troxel, this Court held that "the lack of standards in the Michigan statute beyond ``the best interests of the child,' and specifically the failure of the statute to afford any deference to the custodial parent's decision, renders the Michigan statute unconstitutional as written." Consistent with its decision, the Court vacated the trial court's order granting the plaintiff visitation of the minor child, but it did not address whether its decision should be applied retroactively or have prospective application only; an issue we decide here.^[1]

II. Prospective versus Retroactive Application

The main issue on appeal is whether this Court's decision in DeRose, supra, should be applied retroactively. The retroactive effect of a court's decision is a question of law that this Court reviews de novo. Sturak v. Ozomaro, 238 Mich.App. 549, 559, 606 N.W.2d 411 (1999).

As a general rule, an unconstitutional statute is void ab initio; it is void for any purpose and is as ineffective as if it had never been enacted. Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 144-145, 253 N.W.2d 114 (1977). Pursuant to this rule, decisions declaring statutes unconstitutional have been given full retroactive application. See, e.g., id. at 145, 253 N.W.2d 114; Briggs v. Campbell, Wyant & Cannon Foundry Co., 379 Mich. 160, 150 N.W.2d 752 (1967); Horrigan v. Klock, 27 Mich.App. 107, 183 N.W.2d 386 (1970). Another general rule is that judicial decisions are to be given complete retroactive effect. Michigan Ed. Employees Mut. Ins. Co. v. Morris, 460 Mich. 180, 189, 596 N.W.2d 142 (1999). However, these rules are not blindly followed without concern for principles of justice and fairness. As the Court recognized in Stanton, supra at 147, 253 N.W.2d 114, "certain factual circumstances might warrant the retroactive application of an unconstitutional statute."

In recent decades, Michigan has adopted a flexible approach to determining whether a decision should be applied retroactively or prospectively, which involves the threshold question of

whether that decision is establishing a new principle of law, either by overruling clear past precedent on which the parties have relied or by deciding an issue of first impression where the result would have been unforeseeable to the parties. If the decision does not announce a new principle of law, then full retroactivity is favored. [Michigan Ed Employees, supra at 190-191, 596 N.W.2d 142.]

Where the decision does reflect a new principle of law, our Supreme Court has acknowledged that "``resolution of the retrospective-prospective issue ultimately turns on considerations of fairness and public policy,'" and has employed a three-part test to determine to what extent, if any, a decision should receive retroactive application. Under this test, the Court weighs "``(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice.'" Id. at 190, 596 N.W.2d 142, quoting Riley v. Northland Geriatric Ctr. (After Remand), 431 Mich. 632, 644-646, 433 N.W.2d 787 (1988).^[2] However, this test has not been universally employed, and, in some cases, the second and third factors meld together "``because the amount of past reliance will often have a profound effect upon the administration of justice.'" Hall v. Novik, 256 Mich.App. 387, 397 n. 8, 663 N.W.2d 522 (2003), quoting People v. Hampton, 384 Mich. 669, 677, 187 N.W.2d 404 (1971). Therefore, these three factors appear to comprise a guideline test to be utilized by the courts as a decision-making aid, rather than an affirmative test, the outcome of which would mandate the court's decision. See Sturak, supra at 561, 606 N.W.2d 411.

Recently, our Supreme Court embarked on this three-part analysis in Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002), when it revisited the issue whether § 7 of the governmental tort liability act, MCL 691.1407, permitted a trespass-nuisance exception to governmental immunity. The Court held that no such exception existed under the statute and, in so holding, overruled Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), and other cases to the contrary. Continuing, the Court stated, "However, because we are mindful of the effect our holding will have on the administration of justice, we conclude that limiting our holding to prospective application is appropriate." Pohutski, supra at 679, 641 N.W.2d 219.

In determining whether to give its decision retroactive effect, the Court first addressed the threshold question, whether the decision established a new principle of law, and concluded, id. at 696, 641 N.W.2d 219, that "practically speaking our holding is akin to the announcement of a new rule of law," given the Court's erroneous interpretations set forth in Hadfield, supra, and Li v. Feldt (After Remand), 434 Mich. 584, 456 N.W.2d 55 (1990). Analyzing the issue under the three-part test, the Pohutski Court stated:

First, we consider the purpose of the new rule set forth in this opinion: to correct an error in the interpretation of 7 of the governmental tort liability act. Prospective application would further this purpose. See Riley, supra at 646, 433 N.W.2d 787. Second, there has been extensive reliance on Hadfield's interpretation of 7 of the governmental tort liability act. In addition to reliance by the courts, insurance decisions have undoubtedly been predicated upon this Court's longstanding interpretation of 7 under Hadfield: municipalities have been encouraged to purchase insurance, while homeowners have been discouraged from doing the same. Prospective application acknowledges that reliance. Third, prospective application minimizes the effect of this decision on the administration of justice. Consideration of recently enacted 2001 PA 222 strengthens our determination to limit our holding to prospective application. 2001 PA 222 amends the governmental tort liability act to provide a remedy for damages or physical injuries caused by a sewage disposal system event. [Pohutski, supra at 697, 641 N.W.2d 219.]

The Court determined that 2001 PA 222 did not apply retroactively and considerations of justice necessitated limiting its holding to prospective application only:

Given the absence of any language indicating retroactive effect, the fortyfive-day notice limit, and the presumption that statutes operate prospectively, we conclude that 2001 PA 222 does not apply retroactively.

Thus, if we applied our holding in this case retroactively, the plaintiffs in cases currently pending would not be afforded relief under Hadfield or 2001 PA 222. Rather, they would become a distinct class of litigants denied relief because of an unfortunate circumstance of timing.

Accordingly, this decision will be applied only to cases brought on or after April 2, 2002. In all cases currently pending, the interpretation set forth in Hadfield will apply. [Pohutski, supra at 698-699, 641 N.W.2d 219.]

Other cases have dealt with this issue in the context of a statute's being found unconstitutional. The difficulty in determining whether prospective or retroactive application is appropriate was highlighted in the cases that followed this Court's decision in Crego v. Coleman, 201 Mich.App. 443, 506 N.W.2d 568 (1993) (Crego I). Crego I held that § 3 of the Paternity Act, MCL 722.713, specifically provided that the performance of a settlement agreement after approval by the court barred "``other remedies of the mother or child for the support and education of the child'" unless the parties provided for modification in the language of the settlement agreement. Two years later, MCL 722.713 was declared unconstitutional because it violated equal protection to the extent that it afforded the parties to a paternity action greater settlement rights than were afforded parties to a divorce action with respect to the child support issue, and to the extent that it rendered child support awards under the Paternity Act unmodifiable while child support awards under the divorce statutes remained modifiable. Dones v. Thomas, 210 Mich.App. 674, 679, 534 N.W.2d 221 (1995). As a result, the Legislature repealed this statute and the plaintiff in Crego I refiled her suit seeking modification of the settlement agreement she had entered into pursuant to § 3. Sturak, supra at 556-557, 606 N.W.2d 411. The circuit court granted the plaintiff's motion.

The defendant's appeal was decided by Crego v. Coleman, 226 Mich.App. 815, 821, 573 N.W.2d 291 (1997) (Crego II), vacated 226 Mich.App. 815, 573 N.W.2d 291 (1997), in which this Court stated that, were it not compelled by MCR 7.215(J)(1) to reverse, it would affirm and hold that MCL 722.713 was unconstitutional as violative of the equal protection guarantees of the United States and Michigan constitutions. This Court further stated that it would give its holding only limited retroactive effect in that it would permit the defendant and other similarly situated putative fathers to contest the issue of paternity.

A conflict panel was convened to resolve the disagreement between the Crego I and Crego II decision, and, affirming the holdings of Dones and Crego II, the panel determined MCL 722.713 to be unconstitutional. Crego v. Coleman, 232 Mich.App. 284, 288, 591 N.W.2d 277 (1998) (Crego III). Although the majority opinion did not address the issue of retroactivity, Chief Judge Whitbeck did in his dissent. Chief Judge Whitbeck noted that since the Paternity Act was enacted, literally thousands of cases were brought under its provisions and that a fair number of those cases resulted in unmodifiable child support agreements under § 3. Id. at 328, 591 N.W.2d 277. He opined that the effect of the majority's decision was to allow these agreements to be reopened, which could lead to the "clearing" of putative fathers of paternity by the use of modern DNA testing, and expressed his concern that a woman then might be required to make restitution of years of child support. Id. at 328-329, 591 N.W.2d 277.

In Sturak, supra at 552, 606 N.W.2d 411, the plaintiff filed a complaint in 1983 alleging that the defendant was the father of the minor child. The parties submitted to blood testing and subsequently entered into a settlement agreement, which was approved by the court in February 1985. Id. Years later, in the wake of this Court's decision in Dones, the plaintiff moved to set aside the settlement agreement and her motion was granted. Id. Following the defendant's failure to submit to new blood tests, a default judgment was entered and the court ordered the defendant to pay $93 a week in child support without credit for the money he paid pursuant to the terms of the 1985 settlement agreement. Id. at 553, 606 N.W.2d 411.

Thus, the issue in Sturak was whether the holding in Crego III should be applied retroactively. The Court reviewed Chief Judge Whitbeck's comments in Crego III and stated that "a retroactive application of the Crego III decision would not necessarily facilitate any of these imagined developments." Id. at 564, 606 N.W.2d 411 However, because the minor child's right to and need for support was primarily at issue and because complete retroactive application of Crego III to every nonmodifiable § 3 support agreement entered since the statute's enactment in 1956 would likely adversely affect the administration of justice, the Court limited the retroactive application of Crego III to "settlement agreements entered before the Legislature's repeal of § 3, effective June 1, 1997, the subjects of which have not yet reached the age at which their right to parental support terminates."^[3]Id.

Subsequently, our Supreme Court concluded that the statute did not violate equal protection guarantees, but did not address whether its decision should be applied retroactively. Crego v. Coleman, 463 Mich. 248, 252, 615 N.W.2d 218 (2000) (Crego IV). This issue was decided a few years later in Hall v. Novik, 256 Mich.App. 387, 663 N.W.2d 522 (2003). As an initial matter, the Hall Court concluded that Crego IV did announce a new rule of law because it overturned Dones, supra, and the decisions that relied on that precedent. Id. at 395, 663 N.W.2d 522. In concluding that prospective application only was appropriate, this Court relied heavily on the reasoning in Riley, supra, a factually similar case where the issue was whether a prior Supreme Court decision, Gusler v. Fairview Tubular Products, 412 Mich. 270, 315 N.W.2d 388 (1981), should be applied retroactively to require recipients of worker's compensation benefits to repay excess sums received from their employers that had been calculated using an erroneous formula. Instead of analyzing the issue under the three-part test, the Hall Court stated:

It would be as unfair here to require that Hall reimburse Novik for amounts paid in excess of those due under the original support order as it would have been in Riley to require the worker's compensation benefit recipients to make reimbursement to their employers. As has been noted, [r]equiring ... a woman to make ``restitution' of years of child support payments could impose a tremendous hardship, literally to the point of bankruptcy. Crego III, supra at 329, 591 N.W.2d 277 (Whitbeck, J., dissenting).

Further, the public policy of this state, as reflected by statute, is that support payments once made for the care of a child are not normally subject to retroactive modification. MCL 552.603(2).[T]his provision normally operates to prevent a payer from retroactively decreasing support payments that have already come due.... Harvey v. Harvey, 237 Mich.App. 432, 437-438, 603 N.W.2d 302 (1999). The purpose of this statute is that ``[t]he custodial parent, who actually provides for the child's welfare, should be able to rely on receiving the court-ordered amount' until a petition for reduction has been filed. Id. at 438, 603 N.W.2d 302, quoting House Legislative Analysis, SB 318-320, June 30, 1987. Similarly, consistent with this statutory policy, a parent should be able to use court-ordered support payments without fear that reimbursement will be later required following a change in the law. [Hall, supra at 398-399, 663 N.W.2d 522.] [^[4]]

The Court realized that prospectively applying Crego IV worked a hardship on the plaintiff, because she would no longer be entitled to higher child support payments, while simultaneously working a hardship on the defendant because he had been erroneously required to pay these higher amounts for a period. Yet, despite this inherent measure of unfairness, the Hall Court recognized that "any change of law presents a difficult situation and the job of the court is to determine the issue of prospective or retroactive application in a manner that best accommodates the interests of all those affected by it." Id. at 399, 663 N.W.2d 522.

III. Retroactive Application of DeRose

Turning to the case before us, we find that the DeRose decision clearly established a new principle of law by addressing for the first time the constitutionality of MCL 722.27b and declaring the statute unconstitutional. See Hall, supra at 394-395, 663 N.W.2d 522; Sturak, supra at 561-562, 606 N.W.2d 411. We also find that the purpose of the DeRose decision would be best served by giving it full retroactive application. There is no doubt that grandparents play an important role in a child's life. But grandparents do not have a fundamental right to make decisions for their grandchild. Additionally, despite plaintiffs' reliance on the statute, and that of others similarly situated, prospective application only of DeRose would fail to give this statement its proper import. It was precisely "the lack of any standards in the Michigan statute beyond ``the best interests of the child,' and specifically the failure of the statute to afford any deference to the custodial parent's decision" that was fatal to the viability of MCL 722.27b. DeRose, supra, 249 Mich.App at 394-395, 643 N.W.2d 259.

Moreover, unlike the child support and restitution concerns in the above cases, no such financial concerns are involved here. The orders entered pursuant to MCL 722.27b involve only grandparents' visitation rights. In light of our Supreme Court's affirmance of the DeRose decision, we do not face the potential of creating additional litigation that was present in the Pohutski, Hall, and Sturak cases. Therefore, the effect of DeRose being given full retroactive application is only to terminate those visitation rights. And so we hold that the DeRose decision should be applied retroactively. Accordingly, we vacate the trial court's January 10, 2001, order granting plaintiffs grandparenting time as it is void ab initio.^[5]

As the DeRose Court recognized, it is presumably possible for a constitutional grandparent visitation statute to be written. In the event that the Legislature addresses the constitutional deficiencies identified in DeRose, plaintiffs and others similarly situated would be entitled to petition the court anew for visitation rights. However, in the meantime, we hold that all orders based on and entered since the enactment of MCL 722.27b, effective December 17, 1982, are void ab initio and thus, are no longer to be given legal effect.

IV. The Contempt Order and the Precedential Effect of DeRose

Defendant also argues that because the order granting plaintiffs grandparenting time is unenforceable, the trial court erred in denying his motion to vacate the April 22, 2002, contempt judgment, which stemmed from his violation of the grandparenting time order. The trial court's decision on a motion to set aside a prior judgment is discretionary, and will not be reversed absent an abuse of discretion. Heugel v. Heugel, 237 Mich.App. 471, 478, 603 N.W.2d 121 (1999). The trial court's issuance of a contempt order is also reviewed for an abuse of discretion, but to the extent that our review requires us to address questions of law, our review is de novo. In re Contempt of Dudzinski, 257 Mich.App. 96, 99, 667 N.W.2d 68 (2003).

A trial court is empowered with the inherent right to punish all contempts of court. MCL 600.1701 et seq.; In re Contempt of United Stationers Supply Co., 239 Mich.App. 496, 499, 608 N.W.2d 105 (2000). There is no dispute that defendant violated the court's January 10, 2001, order when he moved with his minor children to Colorado. Defendant's argument rests solely on the contention that he should not have been held in contempt for failing to comply with an order that was subsequently determined to be of no legal effect. However, an order of the court must be complied with at the time it is entered even if the order is clearly incorrect, Kirby v. Michigan High School Athletic Ass'n, 459 Mich. 23, 40, 585 N.W.2d 290 (1998), or it is set aside on appeal, United States v. United Mine Workers of America, 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947). As this Court stated in In re Contempt of Dudzinski, supra at 111, 667 N.W.2d 68, "A person may not disregard a court order simply on the basis of his subjective view that the order is wrong or will be declared invalid on appeal."

Thus, it would appear that defendant was bound to comply with the court's grandparenting time order, notwithstanding the fact that MCL 722.27b was subsequently declared unconstitutional. United Mine Workers, supra at 293, 67 S.Ct. 677. But the above-cited rules only apply to "an order issued by a court with jurisdiction over the subject matter and person...." Id. On March 28, 2002, a show cause hearing was held in regard to defendant's apparent violation of the court's January 10, 2001, order. Defendant argued that he should not be held in contempt because the court lacked subject-matter jurisdiction over the issue pursuant to this Court's decision in DeRose. Defendant asserted that MCR 7.215(C)(2) provided that DeRose should be given immediate precedential effect despite the fact that an appeal was pending in the Supreme Court.

MCR 7.215(C)(2) states:

A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.

The trial court disagreed with defendant's assertion because it believed that MCR 7.215(C)(2) had to be read in conjunction with MCR 7.215(F)(1)(a), which states that "the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court." Additionally, MCR 7.215(E)(1) provides that when the Court of Appeals disposes of an appeal, its opinion is its judgment. Therefore, the trial court declined to give DeRose precedential effect because it concluded that our opinion was not a final judgment.

However, the court's reliance on MCR 7.215(F)(1)(a) is misplaced. This court rule pertains to the timing of when our judgment becomes final in regards to the parties to the appeal and its enforceability with respect to the trial court that presided over the case. Under this court rule, a timely application for leave to appeal to the Supreme Court operates as a stay of the Court of Appeals judgment regarding its enforcement by the prevailing party to that action. See In re JK, 468 Mich. 202, 217, 661 N.W.2d 216 (2003). In contrast, the plain language of MCR 7.215(C)(2) provides that neither the filing of an application for leave to appeal to the Supreme Court nor an order granting such leave diminishes the precedential effect of a published opinion of the Court of Appeals. Where the language of the court rule is clear, we presume the drafters intended the meaning plainly expressed. Hinkle v. Wayne Co. Clerk, 467 Mich. 337, 340, 654 N.W.2d 315 (2002). Therefore, the trial court erred in determining that the DeRose decision did not need to be given precedential effect. To conclude otherwise would render the court rule nugatory; such a construction is to be avoided. Jerico Constr., Inc. v. Quadrants, Inc., 257 Mich.App. 22, 32, 666 N.W.2d 310 (2003).

Our interpretation is supported by the effective change caused by the addition of MCR 7.215(C)(2). The effect of this Court's opinions before the amendment was set forth in People v. Phillips, 416 Mich. 63, 330 N.W.2d 366 (1982). In that case, the prosecutor argued that the Court of Appeals decision in People v. Dunigan, 96 Mich.App. 577, 293 N.W.2d 637 (1980), was binding precedent until the Supreme Court reversed that decision^[6] seven months later. The Court stated:

The prosecutor apparently misconceives the precedential status of a Court of Appeals decision in which leave to appeal has been granted by this Court. A timely application for leave to appeal to this Court from a decision of the Court of Appeals effectively stays the Court of Appeals decision as a final adjudication, see People v. George, 399 Mich. 638, 250 N.W.2d 491 (1977), and denies it precedential force until denial of the application for leave to appeal in this Court or some other disposition of the case is announced. Anopinion of the Court of Appeals is not its judgment. Its decision and judgment are made when the clerk of the Court of Appeals issues the Court's judgment order and sends notice thereof to counsel for each party under GCR 1963, 821.2.

It is only after application for leave to appeal to this Court is denied, or dispositive action is taken effectively approving the Court of Appeals decision, that it becomes a final adjudication of that Court.

In Dunigan, our order granting the defendant's timely application for leave to appeal, followed by our judgment reversing the Court of Appeals decision, precluded the Court of Appeals opinion from ever having precedential effect. [Phillips, supra at 74-75, 330 N.W.2d 366 (emphasis in original).]

In 1987, MCR 7.215(C)(2) was added, and the Staff Comment to the 1987 amendment explicitly stated that the effect of the amendment was a change from the prior rule as stated in [Phillips, supra]. Construing MCR 7.215(C)(2) in Straman v. Lewis, 220 Mich.App. 448, 451, 559 N.W.2d 405 (1996), this Court recognized this change, stating, Thus, the publication of an opinion of this Court creates binding precedent statewide, and, contrary to past practice as reflected by [Phillips, supra ], the opinion remains binding ``until such time as a decision of the Supreme Court enters altering the lower court decision or questioning its rationale.' Quoting 6 Martin, Dean Webster, Michigan Court Rules Practice (3d ed), p 315.

In this case, defendant violated the January 10, 2001, grandparenting time order in October 2001. Three months later, on January 25, 2002, this Court issued its decision in DeRose, which had an immediate precedential effect. At the March 28, 2002, show cause hearing, defendant made an oral motion for relief from the grandparenting time order pursuant to MCR 2.612(C). Defendant argued that the trial court lacked subject-matter jurisdiction over the contempt proceedings because the Court of Appeals had declared the grandparenting time statute unconstitutional. The court denied defendant's motion and found him in contempt.^[7] Giving precedential effect to this Court's De Rose decision required that the trial court grant defendant's motion and the court erred in failing to do so. Because the grandparenting time statute was declared unconstitutional before the contempt judgment was entered, the court did not have jurisdiction over the subject matter of the contempt judgment. Thus, we find that the trial court erred in denying defendant's subsequent motion to vacate the contempt judgment. United Mine Workers, supra at 293.^[8]

Order granting grandparenting time vacated and order denying motion to vacate judgment of contempt reversed.

SAWYER, J., concurred.

BORRELLO, J. (concurring).

I concur in the decision reached by the majority for the sole reason that we are bound by our Supreme Court's ruling in DeRose v. DeRose, 469 Mich. 320, 666 N.W.2d 636 (2003). However, I write separately because I find persuasive the reasoning of Justice Kelly in her dissent in DeRose, when she stated:

Accordingly, when the Legislature enacted the grandparent visitation statute, it saw fit to explicitly require that trial courts give deference to a fit parent's decisions regarding grandparent visitation. The majority's argument that the provisions requiring deference are inapplicable in the context of grandparent visitation are untenable. The Legislature resolved this issue by including grandparent visitation within the gamut of custody disputes. Therefore, because it is narrowly tailored to serve a compelling governmental interest, the statute is constitutional. [Id. at 357, 666 N.W.2d 636.]

Justice Kelly was correct in stating that when our Legislature drafted MCL 722.27b, it did so in a way that passes constitutional muster. I would incorporate those findings in her dissent and add to them the suggestion that despite the holding in DeRose, the jurisprudence of this state does not recognize a fundamental right to parent.

The majority's opinion in DeRose is problematic because much of the decision rested on the United States Supreme Court's determination in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that there exists a "fundamental right" to parent. However, recent decisions by our Supreme Court and this Court are seemingly at odds with the concept that there exists a "fundamental right" to parent. A review of the cases addressing issues of a "fundamental right" to parent shows that they rely more on our Courts' enchantment with the phrase "the sanctity of marriage" than on allowing a parent to exercise this right, or even be heard so as to attain this "fundamental right."

In In re CAW, 469 Mich. 192, 665 N.W.2d 475 (2003), Justice Taylor, writing for the majority, denied a putative father's right to intervene in a parental rights termination proceeding. While the majority's decision was predicated on several factors, Justice Taylor, in contrasting his ruling to that of the dissent, stated:

There is much that benefits society and, in particular, the children of our state, by a legal regime that presumes the legitimacy of children born during a marriage. It is likely that these values, rather than failure to consider the plight of putative fathers who wish to invade marriages to assert paternity claims, motivated the drafters of the rules and statutes under consideration. [Id. at 199-200, 665 N.W.2d 475 (citation omitted)].

Such a basis for denying a putative father's right to intervene in an action wherein he was requesting the right to be a legally sanctioned parent is at odds with the DeRose finding that there exists a "fundamental right" to parent. Similarly, this Court in Aichele v. Hodge, 259 Mich.App. 146, 673 N.W.2d 452 (2003), held:

[W]hen a child is born during a marriage, a putative father can never successfully institute legal proceedings to be declared a parent. Because plaintiff cannot obtain a legal determination that he is the child's "parent," he does not have standing to seek custody of her under the Child Custody Act. [Id. at 162, 673 N.W.2d 452.]

Because the majority in these cases did not allow putative parents to intervene in cases that would allow them the opportunity to even prove their parentage, we cannot state that Michigan recognizes a "fundamental right" to parent. For these reasons, I concur in the result only.

NOTES

[1] The Supreme Court affirmed the DeRose decision, 469 Mich. 320, 666 N.W.2d 636 (2003), but likewise did not address the issue of retroactivity.

[2] This three-part test was first enunciated by the United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), a criminal case, and later utilized in a civil case, Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Our Supreme Court first adopted this test in People v. Hampton, 384 Mich. 669, 674, 187 N.W.2d 404 (1971). We note that the United States Supreme Court abandoned the three-part test in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74; 113 S Ct 2510; 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), stating:

When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

[3] Retroactive application of Crego III was further limited to "situations where the potential litigant is dissatisfied with the agreement's support provisions, has knowledge of the putative father's continued existence and location, and believes that seeking modification of the agreement would constitute a worthwhile endeavor." Id. at 564-565, 606 N.W.2d 411.

[4] Addressing the fact that it did not specifically utilize the three-part test, the Hall Court stated:

To the extent that analysis under the three-part test is required, we note that Riley, supra at 646, 433 N.W.2d 787, upon which we primarily rely, did consider that test and concluded that prospective application of the new rule at issue was appropriate. For the same reasons in this factually similar case, we would reach that same conclusion if we were to apply the three-part test. [Hall, supra at 397 n. 8, 663 N.W.2d 522.]

[5] Because the trial court lacked the authority to grant relief to plaintiffs, a remand is unnecessary. DeRose, supra, 249 Mich.App. at 395, 643 N.W.2d 259.

[6] 409 Mich. 765, 298 N.W.2d 430 (1980).

[7] Two weeks before the show cause hearing, defendant filed a motion for summary disposition in which he sought to vacate the grandparenting time order based on this Court's DeRose decision. The hearing was held in April 2002. The trial court rejected defendant's argument and refused to vacate either the grandparenting time order or the contempt judgment.

[8] We note that had the court found defendant in contempt before the DeRose decision was published, defendant would not be entitled to such relief. In re Contempt of Dudzinski, supra at 110, 667 N.W.2d 68.