Rogers v. WCISEL, Docket No. 318395.

312 Mich.App. 79

877 N.W.2d 169

ROGERS

v.WCISEL.

Docket No. 318395.

Court of Appeals of Michigan.

Submitted March 11, 2015, at Lansing.

Decided Aug. 25, 2015, at 9:00 a.m.

Michael T. Edwards, Gaylord for defendant.

Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.

STEPHENS, J.

Defendant appeals by delayed leave granted the circuit court order denying his motion to revoke his acknowledgment of parentage. We reverse and remand.

I. BACKGROUND

Plaintiff, Shana J. Rogers, and defendant, David A. Wcisel, began an "off and on" dating relationship in 2006. On March 12, 2007, plaintiff gave birth to MW. Defendant was present for the delivery of MW and signed an acknowledgment of parentage at the hospital.¹ Plaintiff and defendant continued to reside together for approximately one year after MW's birth before they separated and defendant left the residence. On July 3, 2008, plaintiff, through the Otsego County Prosecutor's Office, filed a complaint for child support against defendant. Defendant filed an answer that admitted to allegations that he was the father of MW, that he was not living with the child, that the child was receiving public assistance, and that he was "of sufficient ability to provide support for the child[ ] and [had] failed to provide support." As a result, the parties signed a consent order on August 19, 2008, granting plaintiff sole legal and physical custody of MW, requiring defendant to pay $2,670 toward plaintiff's reasonable and necessary confinement expenses, and requiring defendant to pay $442 per month in child support.

Sometime later defendant began to notice that MW had "physical attributions" that were not his and asked plaintiff for a DNA test. The DNA test results showed that there was a zero percent chance that defendant was MW's biological father. Thereafter, on July 15, 2012, defendant filed a motion requesting that the trial court revoke the parties' acknowledgment of parentage, relieve him of any child support obligations, and reimburse him for the child support expenses he had previously paid. Along with his motion, defendant attached the DNA test and an affidavit in which he averred that he signed the acknowledgment of parentage because plaintiff represented that he was the only possible father and because he believed that to be true. Plaintiff filed an answer and brief in opposition to defendant's motion. Plaintiff asserted that she informed defendant that there was a possibility that another man was the father, and that defendant merely "changed his mind" about being MW's legal father. Plaintiff requested that the trial court require defendant to post $2,000 in bond to be paid to plaintiff if his motion was denied and hold him in contempt for committing perjury in his affidavit. On August 20, 2012, the trial court ordered "[t]hat the Friend of the Court shall hold all child support received on behalf of Defendant until further order of the Court."

On October 5, 2012, at the hearing on defendant's motion, defendant argued that his affidavit and the DNA test results were sufficient to set aside the acknowledgment of parentage. Plaintiff countered that the trial court could apply the equitable parent doctrine and require defendant to continue supporting the child. The trial court accepted that the acknowledgment of parentage was not correct, and plaintiff agreed that the DNA test proved defendant was not MW's biological father. The court, however, would not revoke the acknowledgment of parentage, ruling that defendant had not stated facts that constituted a mistake of fact, newly discovered evidence, fraud, misrepresentation, or duress under MCL 722.1437(2).² The court explained that after complying with this provision, defendant needed to show that revoking the acknowledgment would not be against MW's best interests. To address these contested issues, a bench trial was held on November 29, 2012.

At trial defendant testified that after he and plaintiff broke up, she informed him that she was pregnant. Defendant believed he was the child's biological father. He stated that he was not aware that plaintiff had sexual relations with another man, and that plaintiff never indicated that he might not be the child's father. Defendant testified that he would not have signed an acknowledgment of parentage if he knew that he was not the child's father. For comparison, defendant testified about a prior child born to plaintiff in 2006 who plaintiff "swore 100 percent" was his. Defendant was present for that child's delivery and was asked to sign the acknowledgment of parentage for that child, but refused because he knew that child could not have been his. Defendant explained that when he asked plaintiff for a DNA test for MW, plaintiff took the position that he was the father. Defendant testified that when he texted plaintiff the results, which indicated that he was not MW's biological father, plaintiff responded that she was "in shock," "sorry," and "always thought that [MW] was [his]." Defendant read texts from plaintiff into the record in which plaintiff agreed that defendant should be removed from MW's birth certificate and stop paying child support. He testified that plaintiff sent him a text message that said, " ‘You said she was yours no matter what. That's what hurts the most.’ "

Plaintiff testified that she became pregnant at the "end of June, beginning of July" of 2006, and that around that time she had sexual relations with defendant and Justin Beacroft. She testified that she called defendant to "let him know [she] was pregnant [and] that there could be a 50/50 chance" that he was not the child's biological father. She testified that defendant and Beacroft even joked about not knowing which one of them was the father while they were drinking at a golf course before the child was born. Defendant denied both allegations. Plaintiff testified that the child's due date was changed during her pregnancy and that when she told defendant about this "he looked at me with a dumb look on his face like knowing that it probably wasn't his...." However, plaintiff testified that she thought the child would be defendant's based on the new due date. Plaintiff testified that after MW was born, she and defendant only talked about the possibility of her not being his when defendant heard rumors from others in town. When asked what she meant when she texted defendant, "I'm so sorry for everything. I truly did believe she was yours," plaintiff answered, "Truly hoped that it was his. I probably worded it wrong in how I spelt it and worded it. Like I truly did believe it was his and truly hoped that it was his when the DNA test came back." She admitted during cross-examination that she was surprised by the DNA test results.

Beacroft testified that he lived with defendant and plaintiff in 2006, and that he and plaintiff had sexual relations during that time. He testified that in October or November 2006, he told defendant "that things had been going on between" him and plaintiff. Defendant testified that it was in the summer of "2009, 2008" that Beacroft told him that he had sexual relations with plaintiff but that Beacroft did not specify when this occurred. Beacroft testified that plaintiff called him when she found out that she was pregnant and explained that she was not sure if it was defendant's or his. Beacroft testified that it was his understanding that defendant was MW's biological father.

Jami Rogers, plaintiff's mother, testified that plaintiff told her "a month-and-a-half before [the child] was born that defendant might not be the father." Rogers testified that while plaintiff was in labor, she and defendant talked and defendant stated "that he didn't think that he was going to be able to go through with this" and that "he didn't know if he could handle the situation." Defendant explained that his statements were in reference to the delivery because he was afraid that he would pass out. Defendant denied ever indicating to plaintiff's mother that he thought the child might not be his.

The court denied defendant's motion on the record at the end of the trial. The trial court believed that defendant's lack of contact with MW after defendant and plaintiff separated "indicat[ed] that [defendant] had some knowledge that perhaps he wasn't the father." The court found the testimony of plaintiff, Beacroft, and plaintiff's mother to be more credible and indicated that defendant had doubts as to whether he was MW's father. The trial court found "most persuasive" plaintiff's testimony that defendant said "no matter what, she's mine" which indicated to the court that "there was a question out there as to paternity." Accordingly, the trial court concluded that plaintiff's "version of events [was] more believable" and found that defendant had not met his burden in proving a mistake of fact.

On January 25, 2013, defendant filed a motion for a new trial or reconsideration under MCR 2.611(A)(1)(a), (e), (g), and MCR 2.612(C)(1)(f) ; a motion to disqualify the trial judge under MCR 2.003(C)(1)(a) and (b); and a motion to stay the order pending appeal under MCR 2.614. After hearing oral argument and allowing the parties to submit briefs regarding the application of the holding in Bay County Prosecutor v. Nugent, 276 Mich.App. 183, 740 N.W.2d 678 (2007), that the presentation of unchallenged DNA evidence is sufficient to establish a mistake of fact, the trial court denied defendant's motion for a new trial and for disqualification.

II. REVOCATION OF ACKNOWLEDGMENT OF PARENTAGE

Defendant argues that the trial court erred by denying his motion to revoke his acknowledgment of parentage when he set forth sufficient facts to demonstrate a mistake of fact. We agree.

This case arises under the Revocation of Paternity Act (RPA), MCL 722.1431 et seq.³ "When reviewing a decision related to the Revocation of Paternity Act, this Court reviews the trial court's factual findings, if any, for clear error." Glaubius v. Glaubius, 306 Mich.App....