DAVID DEWAYNE HICKOX V MEGAN MARIE VANDERARK
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
DAVID DEWAYNE HICKOX,
UNPUBLISHED
August 13, 2009
Plaintiff-Appellant,
v
No. 289715
Kent Circuit Court
LC No. 08-012729-DP
MEGAN MARIE VANDERARK,
Defendant-Appellee.
Before: Owens, P.J., and Talbot and Gleicher, JJ.
PER CURIAM.
Plaintiff, David D. Hickox, appeals as of right a December 12, 2008 trial court order
dismissing his complaint to establish paternity of the parties’ minor child Tristan T. Vander Ark
for lack of standing. We reverse, and remand for further proceedings.
Tristan was born to the parties during the marriage of defendant Megan M. Vander Ark
and Adam T. Vander Ark. After Adam filed for divorce in October 2008, Hickox filed a
complaint to establish paternity of Tristan. On December 10, 2008, the trial court entered a
written order in the divorce proceeding, which stated in part:
IT IS ORDERED that, by Plaintiff’s, Adam T. VanderArk [sic], signature hereto,
he stipulates and agrees that he is not the biological father of the minor conceived
and born during the marriage of the parties and the court determines that Tristan
Thomas Vander Ark is not the issue of the marriage between Adam and Megan
Vander Ark. [Emphasis added.]
Both Adam and Megan stipulated to entry of the order. Thereafter, Hickox amended his
complaint to reference the order to establish that Tristan was born “out of wedlock” within the
meaning of the Paternity Act, MCL 722.11 et seq. Hickox also moved to intervene in, or,
alternatively, to consolidate his paternity action with the divorce proceedings. Following a
hearing, the trial court dismissed Hickox’s complaint on the basis that he lacked standing under
the Paternity Act. The trial court held that, because its December 10 order was a temporary
order, it did not amount to a determination regarding the legitimacy of Tristan for purposes of
standing under the Paternity Act. On appeal, Hickox argues that the trial court erred in finding
he lacked standing under the Paternity Act. We agree.
-1-
Whether a plaintiff has standing to commence proceedings under the Paternity Act
involves a question of law this Court reviews de novo. Barnes v Jeudevine, 475 Mich 696, 702;
718 NW2d 311 (2006). Statutory interpretation also involves a question of law this Court
reviews de novo. State Farm Fire & Casualty Co v Corby Energy Service, Inc, 271 Mich App
480, 483; 722 NW2d 906 (2006).
Under the Paternity Act, only a father of a child born “out of wedlock” has standing to
bring an action to establish paternity. Barnes, supra. The act defines “out of wedlock” 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 that the court has determined to be a
child born or conceived during a marriage but not the issue of that marriage.
[MCL 722.711(a) (emphasis added).]
The second method of establishing that a child was born “out of wedlock” requires a “prior court
determination” that the subject child is not the issue of the marriage. Barnes, supra at 703, citing
Girard v Wagenmaker, 437 Mich 231, 243; 470 NW2d 372 (1991). In Barnes, supra our
Supreme Court explained that a “prior determination” that a child is not the issue of a marriage
requires a court to “settle with finality a controversy regarding the child’s legitimacy.” Id. at
704. The Court explained:
[A] court determination under MCL 722.11(a) that a child is not “the issue of the
marriage” requires that there be an affirmative finding regarding the child’s
paternity in a prior legal proceeding that settled the controversy between the
mother and the legal father. [Id. at 705.]
In this case it is undisputed that Tristan was born while his mother Megan was married to
Adam. Thus, to show that Tristan was born “out of wedlock,” Hickox had to establish that a
court has made a “prior determination” that Tristan was not the issue of the Vander Ark
marriage. Id. We find the trial court made this determination in its December 10 order. That the
order was titled “temporary,” is not dispositive. A “prior determination” regarding legitimacy is
made where a court makes an “affirmative finding,” in a “prior legal proceeding,” that “settled
the controversy” as to the legitimacy of the subject child. Id. at 704-705. In this case, the trial
court’s plain language in the order unequivocally resolves any controversy regarding the
legitimacy of Tristan and it was made at a legal proceeding. Therefore, we hold that Tristan was
born “out of wedlock” within the meaning of the MCL 722.711(a). In addition, we find that the
trial court’s ruling that standing cannot be based on an amended complaint is erroneous. See
Tingley v 900 Monroe LLC (On Remand), 274 Mich App 335, 338, 345-350; 733 NW2d 440
(2007).
In light of our resolution of the issue with respect to standing, we find it unnecessary to
address Hickox’s constitutional argument. Further, we decline to address whether the trial court
abused its discretion in denying Hickox’s motion to consolidate this case with the divorce action
pending between Megan and Adam. The trial court did not decide the motion; thus, it did not
exercise its discretion. On remand, the trial court shall determine whether this case is
appropriate for consolidation with the divorce action.
-2-
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Donald S. Owens
/s/ Michael J. Talbot
/s/ Elizabeth L. Gleicher
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.