Tanielian v. Brooks

202 Mich. App. 304 (1993) 508 N.W.2d 189

TANIELIAN
v.
BROOKS

Docket No. 152295.

Michigan Court of Appeals.

Submitted June 4, 1993, at Detroit. Decided November 1, 1993, at 9:35 A.M.

Sandor M. Gelman, P.C. (by Sandor M. Gelman), for Pamela D. Tanielian.

Henry Baskin, P.C. (by Henry Baskin and Dana Baskin), for Ernie L. Brooks.

Wood & Wood, P.C. (by Brian H. Herschfus), for Richard Tanielian.

Before: WEAVER, P.J., and MURPHY and JANSEN, JJ.

MURPHY, J.

Defendant and third-party plaintiff, Ernie Brooks, appeals from an order of the Oakland Circuit Court granting summary disposition pursuant to MCR 2.116(C)(8) of his third-party complaint. Third-party defendant, Richard Tanielian, cross appeals from the same order, which denied his request for costs and attorney fees. We affirm.

Plaintiff and Richard Tanielian were divorced in August 1981. During the marriage, Adam Richard Tanielian was born to plaintiff. The default judgment of divorce awarded plaintiff custody of Adam, awarded Mr. Tanielian visitation, and also ordered him to pay child support. In 1983, plaintiff and Mr. Tanielian stipulated that Mr. Tanielian was not the biological father of Adam, after blood tests demonstrated that defendant was actually Adam's biological father. The circuit court subsequently entered an order modifying the default judgment of divorce, terminating Mr. Tanielian's parental rights with respect to Adam, as well as his child support obligation.

Plaintiff eventually filed this action, requesting a determination by the circuit court that defendant is the biological father of Adam, and that he be required to pay child support. Defendant filed a third-party complaint alleging that Mr. Tanielian is the "equitable" parent of Adam and is therefore obligated to pay the child support requested in plaintiff's complaint against defendant. Mr. Tanielian moved for summary disposition pursuant to MCR 2.116(C)(7) and (8), asserting that defendant had failed to state a claim upon which relief can be granted and also requesting that he be awarded costs and attorney fees as sanctions for defendant's frivolous claim. The circuit court granted Mr. Tanielian's motion for summary disposition, holding that there was no legal basis for defendant's third-party complaint, but denied Mr. Tanielian's motion for sanctions.

Defendant contends that the circuit court erred in granting Mr. Tanielian's motion for summary disposition of defendant's third-party complaint. Defendant argues that under Michigan law, Mr. Tanielian is obligated to provide child support for Adam because he is Adam's "equitable" father, although not his biological father. Defendant further argues that once the judgment of divorce established Mr. Tanielian's child support obligation, the circuit court could not modify the judgment to eliminate this obligation, because this undermined Adam's right to support. We disagree.

The biological or adoptive parents of a child are obligated to support that child. MCL 722.3; MSA 25.244(3); Tilley v Tilley, 195 Mich. App. 309, 313; 489 NW2d 185 (1992); Nygard v Nygard, 156 Mich. App. 94, 97; 401 NW2d 323 (1986). Absent adoption, this obligation remains with the biological parents. Id.; Wilson v General Motors Corp, 102 Mich. App. 476, 480; 301 NW2d 901 (1980). In this case, defendant admits that he is the biological father of Adam. Defendant's parental rights with respect to Adam have not been terminated. Defendant is therefore obligated to support Adam.

Defendant argues, however, that Mr. Tanielian should be obligated to support Adam even though not biologically related to the child. Generally, where there is no biological parent-child relationship, the adult has no legal obligation to support the child. Tilley, supra, 313-314; Nygard, supra. In certain instances, however, a person other than the biological parent of a child has been held obligated to support the child. Id., 99. A nonbiological parent may be held obligated to support a minor child where the parent stands in loco parentis to a child of the marital household. Id., 100, n 3. In Nygard, the defendant father was not the biological father of the child, but had persuaded the plaintiff mother not to give up the child for adoption by promising to marry the plaintiff and to support the child. This Court held that the defendant had essentially contracted to support the child and was equitably or promissorily estopped from raising the statute of frauds as a defense to the contract. Id., 99. See also Johnson v Johnson, 93 Mich. App. 415; 286 NW2d 886 (1979). There is also authority that a parent may not challenge paternity as a means of resolving a custody or support dispute after the entry of a judgment of divorce. Johns v Johns, 178 Mich. App. 101, 106-107; 443 NW2d 446 (1989).

We are unaware of any authority, however, that permits a biological parent to escape child support obligations by bringing a third-party action against a person who under certain circumstances might have been held to be obligated for child support. 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." Even if defendant were successful in demonstrating that under certain circumstances Mr. Tanielian might have been held to be obligated to support Adam, it cannot be said that Mr. Tanielian is a person who is liable to defendant for any part of plaintiff's claim. Rather, defendant, as the biological father of Adam, is obligated to support Adam. MCL 722.3; MSA 25.244(3); Tilley, supra, 313; Wilson, supra. Defendant cannot alter his child support obligations by finding another party upon whom that obligation might otherwise have fallen.

Even if a biological parent could so escape child support obligations, this case is factually distinct from the cases that impose support obligations upon nonbiological parents. In Nygard, supra, the defendant knew that he was not the biological father but held himself out as the father and assured the plaintiff mother that he would care for the child financially, thereby precluding the plaintiff from seeking support from the biological father. Similarly, in Johnson, supra, the defendant knew that he was potentially not the biological father, but held himself out as the child's father, thereby precluding the plaintiff from seeking support from the biological father. In this case, there is no indication that Mr. Tanielian knew that he was not the biological father of Adam, and thus was not knowingly "holding himself out" as the father of Adam. Nor is there any indication that Mr. Tanielian induced plaintiff not to pursue defendant for support by promises to support the child. Further, unlike the situation presented in Johns, the fact that Mr. Tanielian is not the biological father of Adam was not raised by either plaintiff or Mr. Tanielian as a means to resolve a custody or support battle. Rather, defendant is the party seeking to use the question of paternity to affect the issue of his support obligation.

In addition, we note that defendant has no standing to raise the issue of Mr. Tanielian's potential support obligation. Defendant argues that the circuit court could not modify the judgment of divorce to eliminate Mr. Tanielian's child support obligation because this would impair Adam's rights to child support. Defendant is not the proper party to raise this argument. Defendant cannot "appeal" from the judgment of divorce in which plaintiff and Mr. Tanielian were parties. Rather, the circuit court's determination of Mr. Tanielian's support obligation in the judgment of divorce was subject only to timely appeal by the parties in that case.

Mr. Tanielian contends on cross appeal that he is entitled to costs and attorney fees because defendant's claim is frivolous. We will not disturb the circuit court's determination that defendant's claim was not frivolous, because we cannot say that the circuit court clearly erred. See State Farm Fire & Casualty Co v Johnson, 187 Mich. App. 264, 268; 466 NW2d 287 (1991).

Affirmed.