Kaiser v. Schreiber

670 N.W.2d 697 (2003) 258 Mich. App. 357

Scott Stanley KAISER, Plaintiff-Appellant,
v.
Emily Marie SCHREIBER, Defendant-Appellee.

Docket No. 244428.

Court of Appeals of Michigan.

Submitted March 11, 2003, at Grand Rapids. Decided September 9, 2003, at 9:00 a.m. Released for Publication November 10, 2003.

Kenneth T. Sanders, Grand Rapids, for the plaintiff.

Western Michigan Legal Services (by Pam Hoekwater), Grand Rapids, for the defendant.

Before: SCHUETTE, P.J., and SAWYER and WILDER, JJ.

SAWYER, J.

Plaintiff Scott S. Kaiser appeals from an order of the circuit court granting defendant Emily M. Schreiber summary disposition regarding plaintiff's child custody action. We reverse.

It is undisputed that the parties are the biological parents of Maria Jacqueline Schreiber, born on June 16, 1998. Both parties were married to other people at the time of Maria's conception and birth. On June 19, 2001, plaintiff filed the instant action seeking joint legal and physical custody of Maria. Defendant answered through counsel, admitting that plaintiff was Maria's father. The parties then stipulated a temporary order of custody, which granted the parties joint legal custody, defendant physical custody, and provided parenting time for plaintiff. Defendant, however, almost immediately resisted complying with the temporary order. Defendant's counsel withdrew after defendant began filing motions in propria persona to change the terms of the temporary order. Defendant retained new counsel, who moved for summary disposition on the basis that the trial court lacked authority to entertain a custody action where the mother was married at the time of the child's birth.^[1] Plaintiff filed a motion for summary disposition, as well as a motion to amend his pleadings to add a claim under the Paternity Act, M.C.L. § 722.711 et seq. The trial court granted summary disposition in favor of defendant.

At issue is the applicability of Girard v. Wagenmaker, 437 Mich. 231, 470 N.W.2d 372 (1991). In Girard, the Supreme Court concluded that the Paternity Act grants standing to a putative father to determine the paternity of a child born out of wedlock and that a child is not born out of wedlock if the mother was married at any time from conception to birth unless a court has determined, before the paternity action is filed, that the child is not issue of the marriage. Id. at 242-243, 470 N.W.2d 372.^[2] Although the Paternity Act was amended after the Girard decision, the amendments do not supply a basis for concluding that Girard is no longer applicable.

Another aspect of Girard that must be considered is the holding that a putative father may not seek a determination of paternity under the Child Custody Act, M.C.L. § 722.21 et seq. Girard addresses this only briefly and relies on this Court's decision in Pizana v. Jones, 127 Mich.App. 123, 127, 339 N.W.2d 1 (1983), for the proposition that "a proper action to determine paternity should be brought under and governed by the provisions of the Paternity Act." Girard, supra at 251, 470 N.W.2d 372. The Girard Court concluded that because the plaintiff did not have standing under the Paternity Act to contest paternity, he could not obtain a determination under the Child Custody Act that he was the father of the child. The Court further determined that because the plaintiff could not obtain a determination that he was the father of the child, he must be considered a nonparent under the Child Custody Act and his custody claim was barred. Id.

Interestingly, the Court in Pizana, supra, upheld the trial court's determination of paternity made under the Child Custody Act. Thus, although the Pizana Court stated that a determination of paternity should be litigated under the Paternity Act, it nevertheless affirmed the trial court's determination of paternity expressly made under the Child Custody Act.

In any event, what we can conclude is that if defendant had, in lieu of filing an answer in the case at bar, moved to dismiss plaintiff's complaint for a lack of standing in light of Girard, the trial court would have been obligated to grant that motion and dismiss the complaint. Plaintiff would have been unable to establish his paternity under the rule in Girard and would have been precluded from maintaining a custody action. However, that is not what happened.

Plaintiff's custody complaint alleged that he was Maria's father:

3. That the Plaintiff is the father, and the Defendant is the mother, of MARIA JACQUELINE SCHREIBER, born June 16,1998.

Defendant answered stating "Admitted, upon information and belief."^[3] A stipulated temporary order was entered. The order included references to the parties as having "temporary joint legal custody of their minor child" and references to "the other parent."

We conclude that because defendant admitted in her answer that plaintiff was the father, the trial court had jurisdiction to entertain the custody action. In reaching this decision, we are guided by this Court's decision in Altman v. Nelson, 197 Mich.App. 467, 495 N.W.2d 826 (1992). In Altman, the putative father filed an action under the Paternity Act seeking a determination that he was the biological father of the child born to the defendant mother. The defendant alleged in her answer that she was married at the time of the child's conception and birth, but did not seek dismissal of the complaint. After the completion of blood tests, an order was entered declaring that the plaintiff was the legal father of the child. Custody and visitation issues were resolved. The parties stipulated transferring custody of the child to the plaintiff. Thereafter, the defendant sought to have the entire custody matter dismissed for lack of jurisdiction pursuant to the decision in Girard. The trial court agreed that the plaintiff did not have standing in the paternity action and that the trial court had erred in failing to consider the defendant's marital status and its effect on the plaintiff's standing before entering the order of filiation. The trial court declared its earlier orders of filiation and custody to be void ab initio for lack of jurisdiction, vacated the prior orders, and ordered that the child be immediately returned to the defendant.

This Court reversed, disagreeing with the trial court that it was an issue of jurisdiction:

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. Joy v. Two-Bit Corp., 287 Mich. 244, 253-254, 283 N.W. 45 (1938); In re Waite, 188 Mich.App. 189, 199, 468 N.W.2d 912 (1991). 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. Fox v. Martin, 287 Mich. 147, 152, 283 N.W. 9 (1938); Waite, supra at 199, 468 N.W.2d 912. Jurisdiction always depends on the allegations and never upon the facts. When a party appears before a judicial tribunal and alleges that it has been denied a certain right, and the law has given the tribunal the power to enforce that right if the adversary has been notified, the tribunal must proceed to determine the truth or falsity of the allegations. The truth of the allegations does not constitute jurisdiction. Id.

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. Jackson City Bank & Trust Co. v. Fredrick, 271 Mich. 538, 544, 260 N.W. 908 (1935); Bowie, supra at 49, 490 N.W.2d 568. 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. Jackson, supra.

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. Jurisdiction to make a determination is not dependent upon the correctness of the determination made. Jackson, supra at 545-546, 260 N.W. 908; Waite, supra at 200, 468 N.W.2d 912.

If the court has jurisdiction of the parties and of the subject matter, it also has jurisdiction to make an error. Buczkowski v. Buczkowski, 351 Mich. 216, 221, 88 N.W.2d 416 (1958).

* * *

Subject-matter jurisdiction over paternity actions has been conferred by statute on the circuit court. M.C.L. § 722.714(3); M.S.A. § 25.494(3). Syrkowski v. Appleyard, 420 Mich. 367, 375, 362 N.W.2d 211 (1985). The circuit court also has subject-matter jurisdiction of custody disputes pursuant to the Child Custody Act. M.C.L. § 722.21 et seq.; M.S.A. § 25.312(1) et seq.; Bowie, supra at 52, 490 N.W.2d 568. [Altman, supra at 472-474, 495 N.W.2d 826.]

The Altman decision then distinguished jurisdiction from an issue of standing:

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. Rogan v. Morton, 167 Mich.App. 483, 486, 423 N.W.2d 237 (1988). 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. Girard, supra. In order to have standing to seek relief under the Paternity Act, plaintiff must allege that the child was born out of wedlock. M.C.L. § 722.714(6); M.S.A. § 25.494(6). "Child born out of wedlock" is defined as "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 which the court has determined to be a child born or conceived during a marriage but not the issue of that marriage." M.C.L. § 722.711(a); M.S.A. § 25.491(a). [Altman, supra at 475-476, 495 N.W.2d 826.]

The Altman Court then explained why the plaintiff adequately invoked the trial court's jurisdiction:

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 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. [Id. at 476, 495 N.W.2d 826.]

The Altman Court distinguished that case from Girard, supra. The Court noted that in Girard, the defendant mother had argued that the plaintiff did not have standing because there had not been a prior determination that the child was born out of wedlock. By contrast, the Altman Court noted that the trial court in Altman had not resolved the issues of marital status and standing before entering the order of filiation and that the defendant mother had not appealed that decision, raising it three years later. The Court concluded that the plaintiff's allegations were sufficient to invoke the jurisdiction of the trial court and, although the trial court erroneously exercised that jurisdiction, its actions were not void. Id. at 477, 495 N.W.2d 826.

Thus, for the reasons discussed in Altman, the trial court in the case at bar erroneously granted summary disposition to defendant under MCR 2.116(C)(4).

Turning to the issue of standing, this case differs somewhat from Altman in that there the orders of filiation and custody were final orders and too much time had passed to allow relief from judgment on the basis of mistake. Id. However, we nevertheless conclude that defendant's admission in her answer that plaintiff is Maria's father is sufficient to confer standing under the Child Custody Act for plaintiff to maintain an action. In doing so, we must look more closely at who may maintain an action under the Child Custody Act and whether parentage must first be established under the Paternity Act, even where parentage is undisputed.

We begin by noting that the Child Custody Act does not specifically limit standing to bring a custody action to parents or any other class of individuals. Rather, it limits the standing of guardians, M.C.L. § 722.26b, and third persons, M.C.L. § 722.26c, in bringing custody actions. Defendant essentially argues that plaintiff is a "third person" under the custody act and fails to meet the requirements of M.C.L. § 722.26c to bring a custody action as a third person. Assuming that plaintiff is a "third person" under the Child Custody Act, defendant's argument is correct.^[4]

However, defendant's argument does assume that plaintiff is a "third person" under the Child Custody Act and, in doing so, assumes too much. M.C.L. § 722.22(g) defines "third person" as "an individual other than a parent." The term "parent" is left undefined. In any event, plaintiff's complaint alleged that he was Maria's parent, specifically her father. Defendant's answer admitted that he was. Accordingly, plaintiff's status was established by admission and he is not a "third person" under the Child Custody Act and, therefore, does not need to establish his standing under M.C.L. § 722.26c.

This conclusion is not inconsistent with our decision in Pizana, supra, and, by implication, with the Supreme Court's decision in Girard, supra. Both those cases involved situations where parentage was disputed, not admitted. To require under the Paternity Act that parentage be established where parentage is undisputed would constitute a waste of judicial resources. More importantly, it would impose a requirement under the Child Custody Act that simply does not exist. Nowhere in the Child Custody Act is there a requirement that parentage be established first under the Paternity Act even if parentage is undisputed. We do not believe that this Court in Pizana, or the Supreme Court in Girard, was endeavoring to rewrite the Child Custody Act to impose a requirement of first seeking relief under the Paternity Act where the parties were not married to each other but did not disagree regarding the child's parentage. Rather, we believe that the holding in Pizana and Girard is that, where the child's parentage is disputed, that dispute must first be resolved under the Paternity Act and then, assuming a resolution favorable to the father, the parties may proceed to resolve the custody issues under the Child Custody Act.

In applying this rationale to the case at bar, had defendant disputed plaintiff's claim that he is Maria's father, then, under Pizana and Girard, the paternity issue would have to have been resolved under the Paternity Act. Then, applying the Girard decision, the trial court would have determined that plaintiff lacked standing to establish his paternity under the Paternity Act and the action would have been dismissed. However, once defendant admitted in her answer that plaintiff was Maria's father, that admission removed plaintiff from the definition of "third person" under the Child Custody Act and, therefore, conferred standing under that act to plaintiff to seek custody. Or, more precisely, plaintiff's allegation in his complaint that he was Maria's father of necessity constituted a pleading that he had standing under the Child Custody Act to seek custody and defendant's admission in her answer confirmed that standing.

Moreover, even if defendant were now to challenge plaintiff's status as Maria's father and plaintiff must resort to making a claim under the Paternity Act, or if establishment of parentage under the Paternity Act were required for any other reason, plaintiff now has standing to do so. Girard held that the Paternity Act grants standing to a putative father to establish parentage only if the child was born out of wedlock; where the mother is married at any time from conception to birth, the child is deemed born out of wedlock only if a court has determined that the child is not issue of the marriage. That determination must be made before the commencement of proceedings under the Paternity Act. In the case at bar, that determination was made. Plaintiff alleged in his complaint that he is Maria's father, defendant admitted in her answer that plaintiff is Maria's father, and the trial court entered a temporary order that refers to Maria as "their minor child" and refers to each party relative to each other as "the other parent." Such language in the order reflects the court's determination that Maria is plaintiff's daughter, which, of necessity, reflects a determination that Maria is not issue of defendant's marriage to her husband.^[5]

Additionally, plaintiff argues that defendant waived the issue of standing by failing to raise it in her first responsive pleading. If standing must be raised under MCR 2.116(C)(5) (lack of capacity to sue), then defendant clearly waived the issue. A motion under (C)(5) must be raised in the party's first responsive pleading or by a motion filed before the first responsive pleading. MCR 2.116(D)(2). Not only did defendant not comply with MCR 2.116(D)(2), defendant did not even move for summary disposition under MCR 2.116(C)(5) (perhaps recognizing that it was too late to do so). Rather, defendant argues that standing may be raised under MCR 2.116(C)(8) (failure to state a claim) as well, citing McHone v. Sosnowski, 239 Mich.App. 674, 609 N.W.2d 844 (2000). While it is true that summary disposition in McHone was granted under both MCR 2.116(C)(5) and (8) and that this Court affirmed that grant of summary disposition, the issue whether standing was properly challenged in a(C)(8) motion was not discussed by the Court. The opinion does not reveal whether the Court believed that the plaintiff lacked the capacity to sue or failed to state a claim. Rather, it merely concluded that the plaintiff lacked standing. McHone, supra at 680, 609 N.W.2d 844.

It does appear that the Girard case was originally decided in the trial court by way of a motion for summary disposition under MCR 2.116(C) (8). See Girard v. Wagenmaker, 173 Mich.App. 735, 738, 434 N.W.2d 227 (1988). However, the issue of which summary disposition subrule should be used to challenge standing was not specifically determined by either this Court or the Supreme Court.^[6] Issues of standing are more commonly considered under MCR 2.116(C)(5). See, e.g., George Morris Cruises v. Irwin Yacht & Marine Corp., 191 Mich.App. 409, 411, 478 N.W.2d 693 (1991), Altman, supra at 471, 495 N.W.2d 826, and Kuhn v. Secretary of State, 228 Mich.App. 319, 332, 579 N.W.2d 101 (1998). Furthermore, a conclusion that standing is an issue most properly raised in a motion brought under MCR 2.116(C)(5) is consistent with our decision in Altman, supra.^[7]

Ultimately, however, it appears that we need not resolve the issue whether standing may be challenged under MCR 2.116(C)(8). Plaintiff did, in fact, state a claim on which relief can be granted. A(C)(8) motion tests the legal sufficiency of the claim as pleaded, accepting as true all factual allegations.^[8]McHone, supra at 676, 609 N.W.2d 844. Plaintiff pleaded that he is Maria's father and that it was in Maria's best interests for the parties to have joint legal and physical custody or, in the alternative, for plaintiff to have sole physical custody of Maria. That allegation states a claim on which relief may be granted. As discussed above, the Child Custody Act does not impose requirements that a plaintiff must meet in order to establish standing, but merely imposes restrictions on when guardians and third persons may bring custody actions. Therefore, plaintiff did not have to specifically plead the existence of standing nor do the allegations in his complaint clearly establish a lack of standing. Accordingly, plaintiff's complaint survives a motion under MCR 2.116(C)(8) and defendant is left to raising the issue of standing under a(C)(5) motion, which defendant failed to do.

To summarize, the effect of plaintiff's allegations in his complaint, defendant's admissions in her answer, and the trial court's temporary order is to establish that Maria is not the issue of defendant's marriage to her husband and that plaintiff is her father and not a "third person" under the Child Custody Act. This confers standing upon plaintiff under the Child Custody Act and, if need be, under the Paternity Act, despite the restrictive language of the Paternity Act and the Girard decision, to seek custody of Maria and establish his paternity. Furthermore, consistent with our holding in Altman, the mere fact that defendant could have successfully defeated plaintiff's standing under both the Child Custody Act and the Paternity Act by disputing plaintiff's allegation of fatherhood is irrelevant. By defendant admitting rather than disputing plaintiff's allegation of fatherhood, plaintiff had standing under the Child Custody Act. Furthermore, the trial court's temporary order of custody constituted a determination that Maria is not the issue of defendant's marriage and, therefore, conferred standing upon plaintiff to commence proceedings, if necessary, under the Paternity Act.

Turning to the points raised in the dissent, our colleague, for the most part, merely disagrees with our view of the effects of the allegations in the complaint, defendant's admissions in the answer, and the stipulated temporary order. Some points, however, do merit additional comment. First, the dissent argues that the effect of our opinion is to create two legal fathers for the child. This is simply not true. Once plaintiff was established as the father by operation of the allegations in the complaint, the admission in the answer, and the stipulated order, the presumption of fatherhood in favor of defendant's husband was rebutted. In other words, once the actual father is established by the court, there is no longer a basis for the presumption.

Next, the dissent examines the definition of "parent" in two other statutes. But we are not persuaded that it is appropriate to rely on those definitions to resolve the issues present in this case. First, the dissent reviews M.C.L. § 700.2114(1)(a), which is part of the Estates and Protected Individuals Code (EPIC), M.C.L. § 700.1101 et seq., and which provides that where a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of that child. The statute, however, explicitly provides that this presumption only applies for purposes of intestate succession. Not only does it violate the plain terms of the statute to apply that definition to the Child Custody Act, it also ignores why EPIC would have its own particularized rules regarding the establishment of a parent and child relationship and its own rules regarding contesting or establishing the existence of such a relationship. As a practical matter, the provisions of M.C.L. § 700.2114(1)(a) will most likely be relevant only after one or more of the individuals (parent or child) are dead. Thus, the establishment of parentage under EPIC is more complicated than in a custody dispute where the parents and child are most likely alive. From a policy standpoint, the issues involved are significantly different. Under EPIC, the issues are purely financial: how to divide the decedent's assets in the absence of a will (and where there is a motive to claim parentage where none may exist). In a custody dispute, while there are certainly financial components, there are also significant nonfinancial components such as parenting time, participation in decisions affecting the child, etc. Therefore, it is not unreasonable for the Legislature to treat the issue of establishing parentage differently in the two situations and it is inappropriate to rely on EPIC for guidance in determining the definition of "parent" under the custody act.

Second, the dissent examines § 1(b) of the minors act, M.C.L. § 722.1 et seq., which defines "parents" as including "natural parents, if married prior or subsequent to the minor's birth...." But again, this statute serves a different purpose than the Child Custody Act. The minors act deals with the legal status of minors, the emancipation of minors, and the rights and obligations of parents in the absence of a custody or paternity dispute. It is not unreasonable for this statute to take a different view of the definition of "parent" than where there is a dispute over custody or parentage. Moreover, the statute does not support the dissent's position. M.C.L. § 722.1(b) uses the term "natural parents." A husband who is presumed to be the father of his wife's child under Lord Mansfield's Rule as modified by Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977), is not necessarily the child's "natural parent."

The minors act does not define "natural parents." Accordingly, we turn to the dictionary for a definition. Black's Law Dictionary (5th ed.), defines "natural" as follows:

The juristic meaning of this term does not differ from the vernacular, except in cases where it is used in opposition to the term "legal;" and then it means proceeding from or determined by physical causes or conditions, as distinguished from positive enactments of law, or attributable to the nature of man rather than to the commands of law, or based upon moral rather than legal considerations or sanctions.

Similarly, under the definition of "child," Black's defines "natural child" as follows:

Child by natural relation or procreation. Child by birth, as distinguished from a child by adoption. Illegitimate children who have been acknowledged by the father.

Turning to more general usage, the Random House Webster's College Dictionary (2000), defines "natural," in part, as "existing in or formed by nature" and "related by blood rather than by adoption." Thus, a legal parent is not necessarily a natural parent. And more to the point, because defendant's husband is not the biological father of Maria, he is not her natural parent.

Moreover, the definition in the statute includes the situation where the "natural parents" marry after the birth of the child. That is, if the mother is unmarried throughout gestation, but marries the child's father after the child's birth, then the father is a "parent" under M.C.L. § 722.1(b) because the natural parents were married after the child's birth. Under Serafin, supra, no presumption of fatherhood arises when the marriage occurs after birth. Thus, the two concepts simply do not work together.

In short, reliance on the minors act actually weakens the dissent's position rather than strengthens it.

Finally, the dissent views this Court's decision in Terry v. Affum, 233 Mich.App. 498, 592 N.W.2d 791 (1998), as rebutting plaintiff's argument that defendant waived her right to challenge plaintiff's standing by failing to raise the issue in her first responsive pleading. Terry, however, does not address the issue whether a challenge to standing must be raised in the first responsive pleading and, therefore, does not counter plaintiff's argument that it must be. Moreover, the dissent incorrectly concludes that the reasoning in Terry applies to the case at bar. In Terry, the parties stipulated visitation by persons who had no legal right to seek visitation. Therefore, the Terry Court merely concluded that once the stipulated visitation agreement was revoked, there was nothing for the trial court to enforce because it had no independent basis on which to order third-party visitation. In the case at bar, contrary to the dissent's statement, we do not conclude that defendant stipulated that plaintiff was the father and thereafter terminated that stipulation. Rather, we conclude that defendant admitted that plaintiff was the father and thereafter stipulated a temporary custody order. Even if defendant now seeks to change that stipulated order, that does not negate her admission that plaintiff is the father or, that the temporary order had the effect of a determination by the trial court that the child was born out of wedlock.

The grant of summary disposition in favor of defendant is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. On remand, the trial court shall grant summary disposition in favor of plaintiff on the issue of standing. Further, if the trial court determines that resolution of the issue of paternity is necessary under the Paternity Act despite defendant's admission in her answer, it shall grant plaintiff leave to amend his complaint to add a claim under the Paternity Act. The trial court shall then proceed to resolve the parties' dispute regarding custody, parenting time, and related issues. We do not retain jurisdiction. Plaintiff may tax costs.

SCHUETTE, P.J., (concurring).

I join the majority opinion of Judge Sawyer and join in the decision to reverse the order of the circuit court granting defendant Emily M. Schreiber summary disposition regarding plaintiff Scott S. Kaiser's child custody action.

This case concerns whether the undisputed father of a daughter born out of wedlock, whose mother is married to another man, will have an opportunity to establish a custodial relationship with his daughter.

The defendant's claims that the answer is no. The correct answer is yes.

In many respects, the facts and circumstances of this case are sad and troubling. Without a doubt, the outcome of this case, unless reversed by this Court, would be even more discouraging.

Maria is the daughter of Scott Kaiser, the plaintiff and Emily Marie Schreiber, the defendant. Both plaintiff and defendant were married to other people when they had an extramarital relationship. Maria was conceived during this extramarital relationship. Both parties acknowledge this fact openly, which was substantiated by a paternity test.

Maria was born in June of 1998 and has resided with defendant. On June 19, 2001, plaintiff filed a complaint seeking custody of his daughter. On August 10, 2001, a temporary court order granting plaintiff and defendant joint legal custody, permitting plaintiff certain visitation rights and granting primary physical custody to defendant was entered by the circuit court. Subsequently, defendant's original attorney withdrew and defendant filed pleadings in propria persona attempting to terminate the temporary court order. The order was never terminated.

Notwithstanding a paternity test that established that plaintiff is Maria's father and a judicial imprimatur, a temporary court order stipulated by both parties, defendant contends that plaintiff has no standing to maintain a custody action pursuant to the Child Custody Act, M.C.L. § 722.21 et seq., and plaintiff cannot amend his pleadings to conform to the Paternity Act, M.C.L. § 722.711 et seq. Defendant's argument succeeds only if we ignore both the equities of this case and the constitutional underpinnings of equal protection under the law, which surround this case. Were we to adopt defendant's argument, for a plaintiff like Scott Kaiser, the doors to the halls of justice would be locked shut.

This Court is estopped from disregarding the temporary court order outlining the joint custodial arrangement between the parties and the test that substantiates plaintiff's paternity, which both parties freely acknowledge. The defendant argues that plaintiff is but a stray actor, an unidentified shadowy figure who, at best, has a mere biological link with Maria. No, Scott Kaiser is Maria's father.

Similarly, defendant's strained interpretation of the "plain meaning" of the Child Custody Act and the Paternity Act is a tortured journey that leaves plaintiff a bystander on the wayside of Michigan's statutory freeways.

Under our system of law, a plaintiff such as Scott Kaiser, armed with a temporary court order and fortified by a paternity test substantiating his fatherhood, should have standing to establish a custodial relationship with his daughter. Further, plaintiff should be permitted to amend his complaint to conform with the Paternity Act should the trial court deem it necessary.

By pursuing reversal of the trial court's decision in this case, Scott Kaiser picked the lock and opened the doors to the halls of justice. Quite possibly, the equal protection considerations that are embedded in the facts of this case may permanently open the door to similarly situated plaintiffs.

WILDER, J., (dissenting).

I respectfully dissent.

Plaintiff Scott S. Kaiser filed a complaint seeking joint legal and physical custody of defendant Emily M. Schreiber's then three-year-old minor child. Plaintiff alleged, and defendant agreed in her answer and concedes on appeal, that paternity testing established that plaintiff is the child's biological father. The parties also agree that they have never been married and that when the minor child was conceived and born, defendant was married to someone other than plaintiff. After the complaint for custody was filed, the parties, through their counsel, stipulated the entry of a temporary order granting plaintiff and defendant joint legal custody, granting defendant primary physical custody, and granting plaintiff certain visitation rights. Shortly thereafter, defendant apparently reconsidered her agreement to cede joint legal custody to plaintiff and resisted complying with the temporary order. Defendant's counsel withdrew, and, thereafter, defendant filed pleadings in propria persona attempting to terminate the temporary order. These efforts were unsuccessful.

Defendant obtained new counsel. Defendant's new counsel filed a motion for summary disposition seeking dismissal of plaintiff's complaint pursuant to MCR 2.116(C)(4), (C)(8), and (C)(10).^[1] In this motion, defendant acknowledged that during her marriage she had an affair with plaintiff, and that plaintiff was the biological father of a daughter born to her during her marriage. Nevertheless, defendant asserted that plaintiff could not maintain a custody action. Defendant noted that plaintiff could not produce a notarized acknowledgement of paternity or a valid order of filiation, and therefore was a third party who was not entitled to bring an action for custody under M.C.L. § 722.26c of the Child Custody Act, M.C.L. § 722.21et seq. or obtain an order of custody under M.C.L. § 722.1004 of the Acknowledgement of Parentage Act, M.C.L. § 722.1001 et seq. Defendant further argued from these undisputed facts that plaintiff could not show that the child was "a child born out of wedlock" within the meaning, M.C.L. § 722.711(a) of the Paternity Act, M.C.L. § 722.711 et seq. After oral argument, the trial court agreed and granted defendant's motion for summary disposition. The trial court's order specifies that the motion was granted pursuant to MCR 2.116(C)(4), (C)(8), and (C)(10).

We review the trial court's grant of summary disposition de novo on appeal. Gen. Motors Corp. v. Dep't of Treasury, 466 Mich. 231, 236, 644 N.W.2d 734 (2002). A motion contesting the trial court's jurisdiction under MCR 2.116(C)(4) may be supported or opposed by documentary evidence, MCR 2.116(G)(2), and whether the court has jurisdiction presents an issue of law reviewed de novo, Travelers Ins. Co. v. Detroit Edison Co., 465 Mich. 185, 205, 631 N.W.2d 733 (2001). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the pleadings standing alone and may not be supported by other evidence. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A court must grant a motion for summary disposition under MCR 2.116(C)(8) if no factual development could justify plaintiff's claim for relief. Van v. Zahorik, 460 Mich. 320, 327, 597 N.W.2d 15 (1999).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Spiek, supra. The trial court must consider the evidence submitted in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999). If the moving party meets its initial burden, the party opposing the motion must present evidence that a genuine issue of disputed material fact exists, or summary disposition is properly granted. MCR 2.116(G)(4); Smith v. Globe Life Ins. Co., 460 Mich. 446, 455, 597 N.W.2d 28 (1999).

Plaintiff first argues that the trial court erred by confusing standing with jurisdiction. I agree with the majority that the trial court had subject matter jurisdiction over the claims asserted here, and that the trial court erred by citing MCR 2.116(C)(4) as an alternative basis for granting summary disposition in favor of defendant. Nevertheless, I would conclude that this error does not warrant reversal because the trial court reached the right result. Hall v. McRea Corp., 238 Mich.App. 361, 369, 605 N.W.2d 354 (1999).

Next, plaintiff argues that defendant waived the right to challenge his standing to bring this custody action because defendant failed to assert that plaintiff lacked capacity to sue as an affirmative defense in her first response pleading. MCR 2.111(F)(2); MCR 2.116(D)(2). I disagree. In Terry v. Affum, 233 Mich.App. 498, 503-504, 592 N.W.2d 791 (1999), the plaintiff, the father of the minor child, and the defendants, the child's maternal aunt and uncle, stipulated that the defendants would have visitation rights with the child following the sudden death of the child's mother. Subsequently, plaintiff moved to amend the visitation order and to terminate the defendants' rights to visitation on the basis that defendants had no legal right to visitation. The trial court found that the defendants had standing to pursue visitation on the basis of their relationship to the child's mother, who before her death had had sole custody of the child. The trial court further concluded that termination of visitation would not be in the best interests of the child.

On appeal, this Court reversed, stating, in relevant part:

Defendants make much of the fact that the parties originally stipulated defendants' visitation rights with the minor child. Specifically, defendants contend that once the parties agreed to allow defendants visitation, the trial court had the authority to approve the stipulation and incorporate it into an order. However, as our Supreme Court noted in Bowie v. Arder, 441 Mich. 23, 42-43, 490 N.W.2d 568 (1992), citing 59 Am. Jur. 2d, Parties, § 30, p. 414,

"[o]ne cannot rightfully invoke the jurisdiction of the court to enforce private rights, or maintain a civil action for the enforcement of such rights, unless one has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy. This interest is generally spoken of as ``standing.'"

Upon plaintiffs' decision to terminate defendants' visitation rights, defendants were without standing to pursue visitation, irrespective of the prior agreement of the parties. In our opinion, once a decision was made to terminate visitation, the stipulation was of no moment and did not confer on defendants a "legal or equitable right, title, or interest in the subject matter of the controversy," which was not otherwise present. [Id.]

In my judgment, the legal reasoning of Terry applies to the instant case. Clearly, at the time plaintiff's complaint was filed, he lacked standing to initiate the action. Once defendant decided to terminate her stipulation that plaintiff was the father of the child and sought instead to dismiss the action on the basis of plaintiff's lack of standing, as a matter of law, the revoked stipulation could not confer upon plaintiff any "legal or equitable right, title, or interest in the subject matter of the controversy." Id. Thus, I would conclude that the trial court correctly dismissed this action for lack of standing.

Even if the majority is correct in finding that the defense of standing was waived by the defendant, I would find that the trial court properly dismissed plaintiff's complaint for failure to state a claim, pursuant to its application of § 6c of the Child Custody Act and § 4 of the Acknowledgment of Parentage Act.

I disagree with the majority's conclusion that defendant's answer and the trial court's temporary order were sufficient to establish that plaintiff is the child's "father" and therefore not a third person under the Child Custody Act. Because defendant was married at the time the child was born, her husband is legally presumed to be the father of the child. Serafin v. Serafin, 401 Mich. 629, 636, 258 N.W.2d 461 (1977). In addition, M.C.L. § 700.2114(1)(a) of the Estates and Protected Individuals Code, M.C.L. § 700.1101 et seq., states that where a child is born or conceived during a marriage, both spouses are presumed to be the natural parents for purposes of intestate succession. M.C.L. § 722.2 of the minors act, M.C.L. § 722.1 et seq., also states that the "parents" of a minor child are equally entitled to custody of the child unless otherwise ordered by a court. "Parents" is defined to mean "natural parents, if married prior or subsequent to the minor's birth ... or the mother, if the minor is illegitimate." M.C.L. § 722.1(b) (emphasis added). While the above-cited statutes are not part of the Child Custody Act, these statutes share with the Child Custody Act the purpose of promoting the best interests of children, and therefore may be interpreted consistently with each other, or in pari materia. Deschaine v. St. Germain, 256 Mich.App. 665, 671 N.W.2d 79, 2003 WL 21242608 (2003). Because plaintiff is not a parent within the meaning of M.C.L. § 722.2 or M.C.L. § 700.2114(1)(a), and because he has not established paternity under M.C.L. § 722.1004, I would conclude that defendant's answer and the trial court's temporary order (entered by stipulation of the parties with no hearing or findings having been made by the trial court) are insufficient to establish that plaintiff is a "parent" within the meaning of the Child Custody Act,^[2] and that plaintiff's assertion in his complaint that he is the minor child's "father" is insufficient, on these facts, to state a claim under the act. I would also find that plaintiff must establish his entitlement to custody as a third party under § 6c of the Child Custody Act.

MCL 722.26c states, in pertinent part:

(1) A third person may bring an action for custody of a child if the court finds either of the following:

(a) Both of the following:

(i) The child was placed for adoption with the third person under the adoption laws of this or another state, and the placement order is still in effect at the time the action is filed.

(ii) After the placement, the child has resided with the third person for a minimum of 6 months.

(b) All of the following:

(i) The child's biological parents have never been married to one another.

(ii) The child's parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order.

(iii) The third person is related to the child within the fifth degree by marriage, blood, or adoption.

Plaintiff cannot establish a claim under § 6c. Subsection 6c(1)(a) indisputably does not apply here, because the child was not placed for adoption. Furthermore, even though plaintiff has clearly established that he is related to the child by blood and that he and defendant, as the child's biological parents, have never been married, his complaint fails to and cannot plead that the child's mother, defendant, is deceased or missing.

Section 4 of the Acknowledgment of Parentage Act, states:

An acknowledgement signed under this act establishes paternity, and the acknowledgement may be the basis for court ordered child support, custody, or parenting time without further adjudication under the paternity act.... The child who is the subject of the acknowledgement shall bear the same relationship to the mother and the man signing as the father as a child born or conceived during a marriage and shall have the identical status, rights, and duties of a child born in lawful wedlock effective from birth. [M.C.L. § 722.1004.]

As noted above, plaintiff admits that there is no acknowledgment of paternity complying with § 4. Thus, plaintiff is unable to state a claim under this statute as well. I would conclude, therefore, that the trial court properly granted summary disposition to defendant and dismissed plaintiff's complaint under MCR 2.116(C)(8), because plaintiff failed to plead facts establishing a claim for custody under which relief could be granted.^[3]

Next, plaintiff argues that the undisputed facts establish that the child was born out of wedlock and that, accordingly, the trial court erred by denying plaintiff's motion for leave to amend his complaint to state a paternity action. I disagree.

A putative father lacks standing to bring an action under the paternity act when the child is born during the mother's marriage to another man, unless the putative father has obtained a prior determination that the mother's husband is not the father. Girard v. Wagenmaker, 437 Mich. 231, 235, 470 N.W.2d 372 (1991). Plaintiff conceded below and on appeal that there was no prior court order finding that defendant's husband was not the father of the child, and that there was no order of filiation or acknowledgment of paternity establishing plaintiff as the father before the filing of the complaint. Thus, on the facts presented here and to the trial court at the time plaintiff sought leave to amend his complaint, plaintiff is unable to establish that he could overcome the legislative "preference to avoid a challenge to a presumed legitimate birth until a prior determination rebuts legitimacy...." Id. at 250, 470 N.W.2d 372. The trial court properly denied plaintiff's motion to amend his complaint as futile. MCR 2.116(I)(5); Lane v. Kindercare Learning Centers, Inc., 231 Mich.App. 689, 696-697, 588 N.W.2d 715 (1998).

I would affirm.

NOTES

[1] Specifically, defendant moved for summary disposition under MCR 2.116(C)(4) (lack of subject matter jurisdiction), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact).

[2] The continuing validity of Girard is not an issue in this case. The Supreme Court recently considered whether a putative father could intervene in a child protective proceeding after the legal father's parental rights were terminated, the legal father having been married to the mother at the time of conception and birth of the child. In re CAW, 469 Mich. 192, 665 N.W.2d 475 (2003). Although the majority in CAW did not specifically consider the Girard case, its reasoning was essentially the same as that in Girard. However, other than indicating that a majority of the justices still subscribe to the reasoning in Girard, the CAW decision is not applicable to the case at bar.

[3] Additionally, in her motion for summary disposition, defendant admitted to an illicit sexual relationship with plaintiff and that paternity testing in 2000 established that plaintiff is Maria's biological father. Defendant also admits in her brief on appeal that paternity testing established plaintiff as the biological father.

[4] Because the child was not placed for adoption with plaintiff, plaintiff could not establish standing under M.C.L. § 722.26c(1)(a), and because defendant is not dead or missing, plaintiff cannot establish standing under M.C.L. § 722.26c(1)(b).

[5] Although the Paternity Act requires a prior court determination that a child is not issue of a marriage, it does not specify any particular form or proceeding in which that determination is made.

[6] And, for that matter, the defendant in Girard raised the issue by way of a motion filed before the first responsive pleading. Girard, supra, 173 Mich.App. at 738, 434 N.W.2d 227.

[7] Arguably, Girard and McHone can be read consistent with using a(C)(8) motion to address this issue for an action under the Paternity Act. That is, if Girard is read as holding that, in order to state a valid claim under the Paternity Act, the putative father must allege in his complaint that the child was born out of wedlock, then the failure to do so fails to state a claim (and such a plaintiff cannot truthfully do so where the mother was married to another and there has been no prior court determination that the child was not the issue of that marriage). However, such rationale would still not benefit defendant in the case at bar as it would only make a(C)(8) motion viable for a Paternity Act claim and plaintiff filed his action under the Child Custody Act, for which standing should properly be raised in a(C)(5) motion. Moreover, even allowing a Girard standing issue in an action under the Paternity Act to be raised by way of a(C)(8) motion would allow the issue to be raised for the first time after the defendant's first responsive pleading. However, that would not benefit defendant in the case bar. As discussed above, by the time defendant did raise the issue, there had already been a determination that Maria was not the issue of defendant's marriage and, therefore, plaintiff could now state a claim under the Paternity Act.

[8] This standard shows why it is tenuous, at best, to allow a standing issue to be addressed in a(C)(8) motion. Because such a motion accepts the factual allegations as true, a plaintiff can easily plead the facts necessary to establish standing and, because allegations will be accepted as true for purposes of a(C)(8) motion, the plaintiff would prevail under such a motion challenging standing. Therefore, the defendant in such a case would still have to proceed under a(C)(5) motion in order to factually challenge the facts surrounding the existence of standing.

[1] During oral argument on the motion, defendant's counsel requested summary disposition under MCR 2.116(C)(8) for plaintiff's failure to state a claim, and MCR 2.116(C)(5) for plaintiff's lack of standing to bring a custody action. Plaintiff did not orally request relief based on MCR 2.116(C)(4).

[2] The majority's finding to the contrary establishes a precedent that was not contemplated by the Legislature in my judgment. As noted by our Supreme Court:

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.... [In re CAW, 469 Mich. 192, 199-200, 665 N.W.2d 475 (2003) (citations omitted).]

The majority opinion runs afoul of these values by negating the presumed legitimacy of the child. Defendant's husband has never been a party to any proceeding challenging his paternity, and there has been no judicial finding (based on admissible evidence) that defendant's husband is not the legal father of the minor child. Thus, by virtue of the majority's opinion, either the child will now have two legal fathers, or the defendant's husband, who by his marital status enjoyed a legal presumption that he was the child's father before these proceedings, will have been stripped of this presumption without any notice or opportunity to be heard. While there does not appear to be collusion between plaintiff and defendant in this case (I note, however, that although paternity was not challenged by defendant, plaintiff did not attach evidence of the paternity test results to his complaint), the majority's ruling provides no bar to such collusion between a claimed putative father and a woman married to someone else, who, for whatever reason, wish to rebut, without notice, the legal presumption of fatherhood bestowed on the husband.

[3] I note that unlike a motion to dismiss for lack of standing under MCR 2.116(C)(5), a motion for summary disposition for failure to state a claim under MCR 2.116(C)(8) may be raised at any time, MCR 2.116(D)(3); Gerling Konzern Allgemeine Versicherungs Ag v. Lawson, 254 Mich.App. 241, 248, 657 N.W.2d 143 (2002), in light of the guiding principle that a party should not be required to defend against a claim that is not recognized in the state. Id.