Teran v. Rittley

313 Mich.App. 197

882 N.W.2d 181

TERAN

v.RITTLEY.

Docket No. 322016.

Court of Appeals of Michigan.

Submitted Oct. 8, 2015, at Petoskey.

Decided Nov. 17, 2015, at 9:05 a.m.

Jodi J. Doak, PC (by Jodi J. Doak), for plaintiff.

Bailey Smith & Bailey, PC, Okemos (by John J. Smith ), for defendant.

Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

In this paternity case, defendant appeals by right the trial court's September 24, 2013 order setting defendant's child support obligation at $1,211 a month. Defendant also appeals by right the trial court's May 14, 2014 order awarding attorney fees to plaintiff. We conclude that the trial court possessed subject-matter jurisdiction, and that it did not abuse its discretion by establishing the amount of child support, by making it retroactive, or by awarding attorney fees. Accordingly, we affirm.

I. SUMMARY OF FACTS AND PROCEEDINGS

In 2006, while defendant was in the military and stationed abroad in Ecuador, he fathered a child with plaintiff. The child was born on November 18, 2006, in Quito, Ecuador. Defendant left Ecuador shortly after the child was born and did not leave plaintiff any contact information.

In July 2007, plaintiff sued defendant for child support in the Commonwealth of Virginia. Defendant, represented by counsel, submitted to the Virginia court a Michigan driver's license and asserted that his official residence was in Johannesburg, Michigan, in Otsego County, where he had paid taxes since 1982. The Virginia court dismissed the complaint for lack of jurisdiction on February 7, 2008.

On September 30, 2010, plaintiff filed the instant paternity action to determine custody, parental responsibility, and child support. Defendant, through counsel, filed an appearance on December 23, 2010. The trial court permitted both parties to appear telephonically at scheduled hearings. A stipulated order for paternity testing was entered on April 25, 2011. DNA testing was performed on samples from the parties and the child.

The results of the DNA testing were that defendant could not be excluded as the child's father. The probability that defendant was, in fact, the child's father was 99.99%. On August 26, 2011, the parties stipulated to the entry of an order of filiation, and the matter was referred to the friend of the court (FOC) for an investigation regarding child support. Using $22,892 for plaintiff's gross income, and $109,774 for defendant's gross income, the FOC recommended setting defendant's child support obligation at $1,211 a month.

On March 29, 2012, defendant filed a motion to dismiss, asserting that the trial court lacked subject-matter jurisdiction pursuant to MCL 722.714 because neither of the parties nor the child resided in Michigan. In an affidavit, defendant asserted that he had resided in Washington, D.C., from May to September 2007; in Bolivia, from September 2007 to July 2009; in Washington, D.C., from July to September 2009; in Frankfort, Germany, from September 2009 to June 2011; in Virginia, from June 2011 to present; and that he never intended to reside in Michigan after 2007. The trial court held a hearing on the motion on April 16, 2012.

On May 22, 2012, the trial court issued an opinion and order denying defendant's motion to dismiss. The trial court ruled that it possessed subject-matter jurisdiction over an action to identify the father of a child born out of wedlock, reasoning that the language in MCL 722.714(1) (governing paternity actions) was similar to the language in MCL 722.26(2) (governing child custody actions), and that because MCL 722.26 concerns venue, not jurisdiction, MCL 722.714 likewise concerns venue, not jurisdiction. Specifically, the court noted that MCL 722.714 “provides that an action for paternity shall be filed in the county where the mother or child resides. If both the mother and child reside outside of this state, then the complaint shall be filed in the county where the putative father resides or is found.” Id. The court further observed that “[t]he fact that the child was conceived or born outside of this state is not a bar to entering a complaint against the putative father.” MCL 722.714(1). The trial court, citing Altman v. Nelson, 197 Mich.App. 467, 495 N.W.2d 826 (1992), ruled that the Paternity Act conferred subject-matter jurisdiction on the circuit court to identify the father of a child born out of wedlock. See id. at 473–474, 495 N.W.2d 826. Citing Morrison v. Richerson, 198 Mich.App. 202, 208, 497 N.W.2d 506 (1993), the court also ruled that even if venue were improper, it would not defeat the court's subject-matter jurisdiction.

In May 2013, the court conducted a two-day trial regarding child support at which both plaintiff and defendant testified via telephone. The main issues were the amount of child support and whether the court should deviate from the child support formula because plaintiff and the child lived in Ecuador. Defendant presented the testimony of Stan Smith, Ph.D. (University of Chicago), whom the trial court recognized as an expert in economics. Dr. Smith testified that he examined the cost of living in Quito, Ecuador, and Washington, D.C., and converted the costs of living in those cities to the cost of living in Detroit, Michigan. According to Dr. Smith, plaintiff's income of $22,900 in Quito equated to $36,914 of purchasing power in Michigan, and defendant's income of $127,000 in Washington, D.C., equated to $89,557 of purchasing power in Michigan. Using this determination of the parties' respective purchasing power in Michigan dollars ($36,914 and $89,557), Dr. Smith calculated that the amount of child support should be $1,021 per month. Dr. Smith further testified that in order to achieve the equivalent of $1,021 purchasing power in Michigan, a person in Ecuador would need only $634.00 (as of January 2012) or $567.00 (as of May 2013).

On September 24, 2013, the trial court issued a written opinion and order setting the amount of child support at $1,211 a month, as the FOC had recommended. The trial court rejected defendant's argument that it would not be a deviation to reduce the formula-recommended child support to an amount consistent with Dr. Smith's testimony regarding the relative purchasing power in the different locales. The trial court also rejected defendant's substantive arguments that a deviation from the child support formula was warranted. The court found that defendant's arguments partially failed for lack of proof because defendant had not presented any evidence of the difference between the costs of living in Ecuador and El Salvador, where defendant then resided. The trial court next discussed whether it would deviate from the child support formula for the time period between July 2011 and July 2012, when defendant was living in Washington, D.C. The court reviewed caselaw from other jurisdictions, finding the reasoning of a Maryland decision, Gladis v. Gladisova, 382 Md. 654, 856 A.2d 703 (2004), the most persuasive. The court also noted that our Supreme Court in Verbeke v. Verbeke, 352 Mich. 632, 90 N.W.2d 489 (1958), which was decided before the current statutory scheme of the child support formula, had rejected international variations in the costs of living as reasons for modifying child support.

The trial court first reasoned that defendant's proposal would be administratively unworkable, require expert testimony in many cases, place undue burdens on litigants and the judicial system, and delay entry of support orders. Second, the court reasoned that child support should not depend on the parents' choice of residences, but on the economic ability of the child's parents to provide support. The court also noted that the cost of living corresponding to a specific geographic location had not been made an explicit factor that could justify a deviation from the child support formula. The trial court therefore ruled that it would not consider the variation in the costs of living at different locales as a factor in establishing child support.¹

Subsequently, plaintiff moved the court to make the support order retroactive and for an order requiring defendant to pay plaintiff's attorney fees. The trial court held a hearing on the motions on March 7, 2014. As to retroactivity, the court ruled from the bench that it was appropriate under MCL 722.717(2)(a) or (c) to start payment of child support from the time of the Virginia case. The trial court's order of May 14, 2014, made child support retroactive to February 7, 2008, the day the Virginia case was dismissed. The trial court also awarded to plaintiff $23,000 in attorney fees, payable to plaintiff's Michigan attorney, which included part of the expense of a Florida attorney who assisted in prosecuting the case. The trial court's May 14, 2014 order requires defendant to pay plaintiff's Michigan lawyer $23,000, less whatever defendant had already paid under earlier orders of the court.

As noted, defendant appeals by right, contending that the trial court lacked subject-matter jurisdiction, and if it did have subject-matter jurisdiction, that it abused its discretion by ordering the amount of child support recommended by the FOC, by making the child support retroactive, and by awarding $23,000 in attorney fees.

II. SUBJECT–MATTER JURISDICTION

A. STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a question of law that this Court reviews de novo. Polkton Charter Twp. v. Pellegrom, 265 Mich.App. 88, 98, 693 N.W.2d 170 (2005). A jurisdictional defect may be raised at any time. Id. at 97, 693 N.W.2d 170.

B. DISCUSSION

We find defendant's argument that the circuit court lacked subject-matter jurisdiction over plaintiff's paternity action to be without merit. Nothing in MCL 722.714 expressly limits the circuit court's subject-matter jurisdiction. Indeed, the Paternity Act patently grants the circuit court subject-matter jurisdiction to determine the paternity of a child born out of wedlock and to order...