GEORGE A AICHELE V SANDRA CAROL HODGE
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STATE OF MICHIGAN
COURT OF APPEALS
GEORGE A. AICHELE,
FOR PUBLICATION
October 21, 2003
9:10 a.m.
Plaintiff-Appellant,
v
No. 247021
Branch Circuit Court
LC No. 02-090663-DC
SANDRA CAROL HODGE,
Defendant-Appellee,
and
Updated Copy
December 30, 2003
CAREY L. HODGE,
Third-Party Intervenor-Appellee.
Before: Cooper, P.J., and Fitzgerald and Kelly, JJ.
COOPER, P.J. (dissenting).
I respectfully dissent. Much has been made in the majority opinion of the presumption of
legitimacy in order to protect the "sanctity of marriage" and ensure the "peace and quiet of the
family." To this end, I question whether this is an issue of "sanctity" under the circumstances of
this case.1 Regardless, the presumption of legitimacy is just that—a presumption—and
presumptions of legitimacy can be rebutted.2 Under the majority analysis, there would be no
presumption of legitimacy; it would be irrefutable fact.
In this case, the following evidence was placed on the record:
1
It is interesting to note that the word "sanctimonious" follows "sanctify" in the Random House
Webster's Unabridged Dictionary (1998), although it has a totally opposite meaning.
2
See Serafin v Serafin, 401 Mich 629, 636; 258 NW2d 461 (1977).
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• A blood test indicating a 99.99% probability that plaintiff is Katherine’s
biological father;
• An acknowledgment of parentage signed by plaintiff and defendant nearly
five years before the instant petition;
• An application to name plaintiff as Katherine’s father on the birth
certificate that was signed by defendant nearly five years before the instant
petition;
• The actual birth certificate naming plaintiff as Katherine’s father; and
• Defendant’s acceptance of child support from plaintiff.
In the face of this overwhelming evidence, it is clear that defendant would have met his burden
to rebut the presumption of legitimacy.
Defendant waited nearly five years before deciding to terminate plaintiff 's relationship
with Katherine. Not only did defendant acknowledge plaintiff 's role as Katherine's biological
father during those five years, but the record reveals that the child was able to reap the emotional
and financial benefits that plaintiff offered. While the majority points out that defendant disputes
the amount of money plaintiff provided, the fact remains that defendant admits accepting some
money from plaintiff for child support. The amount is irrelevant; the fact that she accepted any
money for child support is pertinent as an admission. Defendant's further contention that
plaintiff 's visits to her house were only to see her and her husband's other children strains the
imagination. The majority notes that defendant denies contributing to the birth certificate
naming plaintiff as Katherine's father. Yet, it is an undisputed fact that the application for this
birth certificate, changing Katherine's last name from Hodge to Aichele, bears her signature.
Defendant also does not deny signing an acknowledgement of plaintiff 's paternity. Although the
majority labels this a "false affidavit" because the small print on the form states that defendant is
an unmarried woman, it is the defendant who perjured herself regarding this particular fact and
not plaintiff. It is clear that defendant never filed a claim to revoke this acknowledgment and the
substance of her affidavit regarding plaintiff 's paternity cannot be affirmatively denied. In point
of fact, the results from the blood test indicate the probability of plaintiff 's paternity at 99.99
percent and, therefore, put any further questions in this regard to rest.
"An acknowledgment signed under [the Acknowledgment of Parentage Act, MCL
722.1001 et seq.] establishes paternity, and . . . may be the basis for court ordered child support,
custody, or parenting time . . . ."3 The majority's determination that the acknowledgement in
question is invalid stems from a flawed analysis of the statutory definition of "child" in the act.
According to the majority, a putative father can never establish paternity under the
Acknowledgement of Parentage Act unless the child is born out of wedlock or a trial court
3
MCL 722.1004.
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previously determines that the child is not issue of a marriage. In concluding that the
Acknowledgment of Parentage Act should be construed in the same manner as the Paternity Act,
MCL 722.711 et seq., the majority comments that the definitions of "child" in the two acts are
virtually identical. By making this comparison, however, the majority overlooks a significant
difference between the two acts.
In Girard v Wagenmaker,4 our Supreme Court interpreted the Paternity Act and
concluded that a putative father could only establish paternity under the act if a child was born
out of wedlock or if a circuit court had already determined that the child was not issue of the
marriage. The foremost rationale for this decision was the fact that the Legislature used the
present perfect tense of "determine" when discussing the time frame for the circuit court's
determination.5 As explained in Girard:
In the second clause of the born out of wedlock definition, the Legislature
used the term "which the court has determined" to define one of the necessary
requirements to find that a child is born out of wedlock. "[H]as determined" is the
present perfect tense of the verb "determine." The present perfect tense generally
"indicates action that was started in the past and has recently been completed or is
continuing up to the present time," or shows "that a current action is logically
subsequent to a previous recent action." For a putative father to be able to file a
proper complaint in a circuit court, a circuit court must have made a determination
that the child was not the issue of the marriage at the time of filing the
complaint.[6]
Our Supreme Court noted that if it ignored the plain meaning of the phrase "has determined," it
would essentially be declaring a portion of the Parentage Act a nullity.7
Notably, the Acknowledgement of Parentage Act defines a child as an individual
"conceived and born to a woman who was not married at the time of conception or the date of
birth of the child, or a child that the circuit court determines was born or conceived during a
marriage but is not the issue of that marriage."8 In this regard, I note that both Girard and the
Paternity Act existed well before the Legislature enacted the Acknowledgement of Parentage Act
in 1996. So, it can only be assumed that the Legislature was aware of the Supreme Court's
analysis in Girard that the use of "determine" in the present perfect tense would require a
previous court determination that the child was not issue of the marriage. Under the same
rationale, the use of "determine" in the present tense indicates a legislative intent to depart from
4
437 Mich 231; 470 NW2d 372 (1991).
5
Id. at 242-243.
6
Id. (citations omitted; emphasis in original).
7
Id. at 243-244.
8
MCL 722.1002(b) (emphasis added).
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the requirement of a past determination in the Acknowledgement of Parentage Act.9 Basic
principles of statutory construction dictate that the Legislature is presumed to act with
knowledge of the statutory interpretations of this Court and the Supreme Court.10 Accordingly, I
conclude that the Legislature's use of the present tense in the phrase "that the circuit court
determines," renders a prior determination of whether the child was an issue of the marriage
unnecessary in the Acknowledgement of Parentage Act. This is only logical, given the fact that a
putative father seeking standing under this act is armed with an acknowledgment of his paternity
voluntarily signed by the mother.
I also disagree with the majority's stated disapproval of this Court's recent decision in
Kaiser v Schreiber.11 A panel of this Court is required to follow a prior published opinion of this
Court issued on or after November 1, 1990.12 Although Kaiser focuses on a biological father's
action under the Paternity Act, it offers some guidance for the instant case. The biological father
in Kaiser was determined to have standing to bring an action under the Child Custody Act
because the defendant mother admitted in her pleadings that he was the father.13 The Court
noted, "[n]owhere in the Child Custody Act is there a requirement that parentage be established
first under the Paternity Act even if parentage is undisputed."14 Consequently, the Court held
that there was no need to proceed under the Paternity Act where the putative father's status as a
parent was confirmed by the mother's admission.15
Likewise, in the instant case plaintiff has standing as a parent to bring an action under the
Child Custody Act because defendant formally admitted that plaintiff was Katherine's father
when she signed the acknowledgment of parentage form and changed the birth certificate.16
Because the Child Custody Act only specifically limits the standing of guardians and third
persons, plaintiff, as an acknowledged parent, would not have to establish standing under MCL
722.26c.17
The majority expresses grave concern for the due process rights of the defendants'
husbands in cases like Kaiser and the instant case. I find this conclusion grossly exaggerated and
legally unsound. According to the majority, allowing the mother of a child born in wedlock to
9
See Sabin, ed, The Gregg Reference Manual (New York: McGraw-Hill, 9th ed, 2001), § 10, p
250.
10
Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991).
11
258 Mich App 357; ___ NW2d ___ (2003).
12
MCR 7.215(J)(1).
13
Kaiser, supra at 366.
14
Id. at 367.
15
Id.
16
See id. at 366-367.
17
Id.
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confer standing on a putative father, through admission of his paternity, would leave married
fathers without any recourse with respect to their parental rights. However, there is no provision
in the Acknowledgement of Parentage Act or the Child Custody Act forbidding these husbands
from intervening in such actions. In fact, that is exactly what the husband did in this particular
case. The more troubling question is what happens to biological fathers in these types of cases
when they are denied standing and therefore access to the halls of justice. Quoting Judge
Schuette's concurring opinion in Kaiser, the "strained interpretation of the 'plain meaning' of
[these acts] is a tortured journey that leaves [the putative father] as a bystander on the wayside of
Michigan's statutory freeways."18
If we are to tout societal values then it should be noted that there has been public outcry
for the increased accountability of biological fathers. Unfortunately, the justice system is
sending a mixed message when it denies fathers who attempt to accept their responsibility access
to the courtroom and their children. Lord Mansfield's Rule is no longer the prevailing authority
in today's legal system. The presumption of legitimacy originated to ensure that children would
not be denied support or their rights of inheritance.19 In cases like the instant case, the putative
fathers are seeking to provide support and rights of inheritance to their children. And with the
advent of modern technology and DNA evidence, courts do not have to rely upon a witness's
credibility to determine paternity.
I find it particularly interesting that the majority chose to quote the following passage
from In re CAW, a case involving a child protective proceeding:
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 under consideration.20
With the availability of 99 percentile proofs of paternity, there can be no justification for denying
due process rights to putative fathers. Additionally, the phrase "regime" connotes a system
devised under a certain authority or power. I would remind my colleagues that the judiciary was
created as a balance of power. And, as such, the judicial system should never be used to impose
the value system of the current political "regime" upon litigants under the guise of justice.
I would reverse.
/s/ Jessica R. Cooper
18
Id. at 378 (Schuette, J, concurring).
19
See Girard, supra at 240-241; Serafin, supra.
20
Ante at ___, quoting In re CAW, 469 Mich 192, 199-200; 655 NW2d 475 (2003) (emphasis
added).
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