Bohman v. Boyce

145 Mich. App. 197 (1985) 377 N.W.2d 387

BOHMAN
v.
BOYCE

Docket No. 82128.

Michigan Court of Appeals.

Decided August 20, 1985.

James L. Talaske, Prosecuting Attorney, for plaintiff.

Lobert & Downey (by Shawn M. Downey), for defendant.

Before: R.M. MAHER, P.J., and BEASLEY and SHEPHERD, JJ.

PER CURIAM.

Plaintiff, Lucinda Marie Bohman, appeals as of right from an order granting accelerated judgment to defendant, Dan Carl Boyce, pursuant to GCR 1963, 116 [now MCR 2.116], on the ground that the trial court lacked jurisdiction in this case to determine paternity under the provisions of the Child Custody Act of 1970.^[1]

Plaintiffs petition alleged that defendant was the natural father of her daughter, Holly Michelle Bohman, born November 19, 1981. When her daughter was conceived, plaintiff was married to another man; however, he and plaintiff were divorced before Holly was born. According to plaintiff, no mention was made of the then-unborn child in the judgment of divorce. Holly has lived with plaintiff in Reed City, Michigan, since her birth.^[2]

MCL 722.27; MSA 25.312(7) provides that:

"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from another action in a circuit court or another or judgment of a circuit court, for the best interests of the child the court may:* * *." (Emphasis added.)

In the within case, no "child custody dispute" has been presented. Plaintiff's daughter lives with her and neither defendant no any other party seeks custody of the child. We agree that paternity may sometimes be determined in a proper custody case.^[3] But a circuit court has no jurisdiction to determine paternity under the Child Custody Act where no colorable custody dispute exists. In such a situation, the Paternity Act is the only avenue for relief.

Affirmed.

NOTES

[1] MCL 722.21, et seq.; MSA 25.312(1), et seq.

[2] According to plaintiff's brief, on April 1, 1983, plaintiff filed an action based on the Paternity Act, MCL 722.711, et seq.; MSA 25.491, et seq. However, accelerated judgment was granted to defendant in that action because the court apparently concluded that the child was not born out of wedlock, as required for relief under the Paternity Act. We express no view on the propriety of that determination on these facts. However, see Smith v Robbins, 91 Mich. App. 284; 283 NW2d 725 (1979), lv den 408 Mich. 853 (1980); Syrkowski v Appleyard, 420 Mich. 367, 373-374; 362 NW2d 211 (1985); In re Flynn, 130 Mich. App. 740, 754-755; 344 NW2d 352 (1983); MCL 722.711(a); MSA 25.491(1).

[3] See Winsett v Donaldson, 69 Mich App 36,39; 244 NW2d 355 (1976); Raleigh v Watkins, 97 Mich. App. 258, 260; 293 NW2d 789 (1980); but see Pizana v Jones, 127 Mich. App. 123, 127; 339 NW2d 1 (1983).