Sims v. Verbrugge

322 Mich.App. 205

911 N.W.2d 233

Natassia T. SIMS, also known as Natassia T. Bennett, Plaintiff–Appellee,

v.Danny Darney VERBRUGGE, Defendant–Appellant.

No. 337747

Court of Appeals of Michigan.

Submitted October 4, 2017, at Grand Rapids.

Decided October 19, 2017

Approved for Publication December 5, 2017, 9:00 a.m.

Carpenter & Judd (by Benjamin R. Judd ) for plaintiff.

Miller Johnson (by Richard E. Hillary, II ) for defendant.

Before: Murray, P.J., and Sawyer and Markey, JJ.

Per Curiam.

Defendant, Danny D. Verbrugge, appeals as of right the trial court's order denying his motion for a de novo review of his motion seeking custody of his daughter, LV. For the reasons stated below, we affirm in part, reverse in part, and remand for further proceedings.

I. FACTS AND PROCEEDINGS

LV was born to defendant and plaintiff, Natassia T. Sims, on October 15, 2012. The parties were unmarried, but on the day of LV's birth, the parties signed an affidavit of parentage (AOP) indicating that defendant was LV's biological father. The parties subsequently ended their relationship but were able to make arrangements for defendant to visit LV without judicial involvement.

In April 2013, the Kent County Prosecuting Attorney filed a complaint for support, seeking an order requiring defendant to pay child support. The trial court eventually entered a default judgment against defendant, ordering him to pay child support and stating that plaintiff had physical custody of LV.

The parties resided a short distance from one another until May 2015, when plaintiff and LV moved an hour's drive away. Defendant later moved in the trial court to enter an order regarding parenting time, alleging that since the move, he had been unable to see LV as frequently as when the parties had lived closer to one another. The trial court entered an order providing a parenting-time schedule and, in August 2015, the parties stipulated another arrangement.

In November 2016, plaintiff notified defendant that she intended to sell her Michigan home and move to Colorado with LV. In response, defendant filed a motion seeking joint legal custody and primary or joint physical custody, alleging that this would be in LV's best interests. According to the referee, pursuant to MCL 722.1¹ and MCL 722.2,² plaintiff had legal custody of LV as the mother of an illegitimate child. Defendant sought de novo review of this ruling pursuant to MCR 3.215(E)(4). The trial court agreed with the referee's conclusion and denied defendant's motion, holding that plaintiff had sole legal custody of LV and that defendant had not fulfilled his statutory burden under MCL 722.27(1)(c) to seek a modification or amendment of the custody order.

II. ANALYSIS

Defendant now appeals, arguing that plaintiff did not have sole legal custody of LV because the execution of the AOP gave the parties joint legal custody. We disagree that the parties had joint legal custody by executing the AOP but hold that defendant is entitled to a hearing upon remand for a determination as to legal custody.

When this Court reviews matters concerning child custody, it reviews the trial court's findings of fact under the great weight of the evidence standard, which requires that a trial court's findings of fact "be affirmed unless the evidence clearly preponderates in the opposite direction." Thompson v. Thompson , 261 Mich. App. 353, 358, 683 N.W.2d 250 (2004) (quotation marks and citation omitted). Further, this Court reviews the trial court's discretionary rulings for an abuse of discretion and questions of law for clear legal error. Id.

When interpreting statutes, this Court's fundamental "obligation is to ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute." Koontz v. Ameritech Servs., Inc. , 466 Mich. 304, 312, 645 N.W.2d 34 (2002). If the statute's language is unambiguous, judicial construction is not permitted. Shinholster v. Annapolis Hosp. , 471 Mich. 540, 549, 685 N.W.2d 275 (2004). Further, this Court "must give effect to every word, phrase, and clause in a statute, and must avoid an interpretation that would render any part of the statute surplusage or nugatory." Koontz , 466 Mich. at 312, 645 N.W.2d 34. This Court must also read the Acknowledgment of Parentage Act, MCL 722.1001 et seq., the Paternity Act, MCL 722.711 et seq., and the Child Custody Act, MCL 722.21 et seq., in pari materia , construing them together and interpreting their provisions so that they do not conflict. Sinicropi v. Mazurek , 273 Mich. App. 149, 156–157, 729 N.W.2d 256 (2006).

The Acknowledgment of Parentage Act provides that a man can be considered the father of a child born out of wedlock³ as follows:

If a child is born out of wedlock, a man is considered to be the natural father of that child if the man joins with the mother of the child and acknowledges that child as his child by completing a form that is an acknowledgment of parentage. [ MCL 722.1003(1).]

Once the parties complete such an act, the Acknowledgment of Parentage Act provides as follows:

An acknowledgment signed under this act establishes paternity, and the acknowledgment may be the basis for court ordered child support, custody, or parenting time without further adjudication under the paternity act, Act No. 205 of the Public Acts of 1956, being sections 722.711 to 722.730 of the Michigan Compiled Laws. The child who is the subject of the acknowledgment 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. [ MCL 722.1004.]

Further, "[a]lthough MCL 722.1004 affords the child the full rights of a child born in wedlock, the statute does not grant a putative father who acknowledges paternity the same legal rights as a father whose child is born in wedlock." Eldred v. Ziny , 246 Mich. App. 142, 149, 631 N.W.2d 748 (2001). Insofar as custody is concerned, MCL 722.1006 provides as follows:

After a mother and father sign an acknowledgment of parentage, the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.

As described by our Supreme Court, this portion of the Acknowledgment of Parentage Act "effectively conditions the parents' ability to execute an AOP on their willingness to allow the mother to be granted 'initial custody of the minor child ....' " Foster v. Wolkowitz , 486 Mich. 356, 366, 785 N.W.2d 59 (2010), quoting MCL 722.1006. The "initial custody" enjoyed by a mother includes legal custody. See Ziny , 246 Mich. App. at 144, 146–147, 631 N.W.2d 748 (explaining that "pursuant to the Acknowledgment of Parentage Act, the mother ... had legal custody of [the child]" because the natural parents had signed an AOP).

In Foster , 486 Mich. at 366, 785 N.W.2d 59, the Court specified that, although the mother receives initial custody of the child through the execution of an AOP, this initial custody is not a judicial determination. The Court reasoned that "[e]quating an AOP to a judicial determination would necessarily be prejudicial to the father" because, if this was the case, the child would have an established custodial environment and, as a result, the father would face a heightened standard of scrutiny when seeking custody of the child. Id. at 366 n. 19, 785 N.W.2d 59. This would be in direct conflict with the MCL 722.1006 statement that the grant of initial custody "shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time." Id. at 366, 785 N.W.2d 59 (quotation marks and emphasis omitted).

While the Acknowledgment of Parentage Act "establishes paternity, establishes the rights of the child, and supplies a basis for court ordered child support, custody, or parenting time without further adjudication under the paternity act," the Child Custody Act, provides "the exclusive means of pursuing child custody rights." Ziny , 246 Mich. App. at 148, 631 N.W.2d 748 (quotation marks and citation omitted). MCL 722.27(1) of the Child Custody Act provides, in pertinent part, that the trial court may resolve custody disputes as follows:

If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:

(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. Subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, the court may also order support as provided in this section for a child after he or she reaches 18 years of age. The court may require that support payments shall be made through the friend of the court, court clerk, or state disbursement unit.

(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by section 7a.

(c) Subject to subsection (3), modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend

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