SCOTT STANLEY KAISER V EMILY MARIE SCHREIBER
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STATE OF MICHIGAN
COURT OF APPEALS
SCOTT STANLEY KAISER,
FOR PUBLICATION
September 9, 2003
9:00 a.m.
Plaintiff-Appellant,
v
No. 244428
Kent Circuit Court
LC No. 01-006255-DC
EMILY MARIE SCHREIBER,
Defendant-Appellee.
Updated Copy
November 7, 2003
Before: Schuette, P.J., and Sawyer and Wilder, JJ.
WILDER, J. (dissenting).
I respectfully dissent.
Plaintiff Scott S. Kaiser filed a complaint seeking joint legal and physical custody of
defendant Emily M. Schreiber's then three-year-old minor child. Plaintiff alleged, and defendant
agreed in her answer and concedes on appeal, that paternity testing established that plaintiff is the
child's biological father. The parties also agree that they have never been married and that when
the minor child was conceived and born, defendant was married to someone other than plaintiff.
After the complaint for custody was filed, the parties, through their counsel, stipulated the entry
of a temporary order granting plaintiff and defendant joint legal custody, granting defendant
primary physical custody, and granting plaintiff certain visitation rights. Shortly thereafter,
defendant apparently reconsidered her agreement to cede joint legal custody to plaintiff and
resisted complying with the temporary order. Defendant's counsel withdrew, and, thereafter,
defendant filed pleadings in propria persona attempting to terminate the temporary order. These
efforts were unsuccessful.
Defendant obtained new counsel. Defendant's new counsel filed a motion for summary
disposition seeking dismissal of plaintiff 's complaint pursuant to MCR 2.116(C)(4), (C)(8), and
(C)(10).1 In this motion, defendant acknowledged that during her marriage she had an affair with
1
During oral argument on the motion, defendant's counsel requested summary disposition under
MCR 2.116(C)(8) for plaintiff 's failure to state a claim, and MCR 2.116(C)(5) for plaintiff 's lack
(continued…)
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plaintiff, and that plaintiff was the biological father of a daughter born to her during her marriage.
Nevertheless, defendant asserted that plaintiff could not maintain a custody action. Defendant
noted that plaintiff could not produce a notarized acknowledgement of paternity or a valid order
of filiation, and therefore was a third party who was not entitled to bring an action for custody
under MCL 722.26c of the Child Custody Act, MCL 722.21 et seq. or obtain an order of custody
under MCL 722.1004 of the Acknowledgement of Parentage Act, MCL 722.1001 et seq.
Defendant further argued from these undisputed facts that plaintiff could not show that the child
was "a child born out of wedlock" within the meaning, MCL 722.711(a) of the Paternity Act,
MCL 722.711 et seq. After oral argument, the trial court agreed and granted defendant's motion
for summary disposition. The trial court's order specifies that the motion was granted pursuant to
MCR 2.116(C)(4), (C)(8), and (C)(10).
We review the trial court's grant of summary disposition de novo on appeal. Gen Motors
Corp v Dep't of Treasury, 466 Mich 231, 236; 644 NW2d 734 (2002). A motion contesting the
trial court's jurisdiction under MCR 2.116(C)(4) may be supported or opposed by documentary
evidence, MCR 2.116(G)(2), and whether the court has jurisdiction presents an issue of law
reviewed de novo, Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733
(2001). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the pleadings standing
alone and may not be supported by other evidence. Spiek v Dep't of Transportation, 456 Mich
331, 337; 572 NW2d 201 (1998). A court must grant a motion for summary disposition under
MCR 2.116(C)(8) if no factual development could justify plaintiff 's claim for relief. Van v
Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim and must be
supported by affidavits, depositions, admissions, or other documentary evidence. MCR
2.116(G)(3)(b); Spiek, supra. The trial court must consider the evidence submitted in the light
most favorable to the nonmoving party. MCR 2.116(G)(5); Ritchie-Gamester v City of Berkley,
461 Mich 73, 76; 597 NW2d 517 (1999). If the moving party meets its initial burden, the party
opposing the motion must present evidence that a genuine issue of disputed material fact exists,
or summary disposition is properly granted. MCR 2.116(G)(4); Smith v Globe Life Ins Co, 460
Mich 446, 455; 597 NW2d 28 (1999).
Plaintiff first argues that the trial court erred by confusing standing with jurisdiction. I
agree with the majority that the trial court had subject matter jurisdiction over the claims asserted
here, and that the trial court erred by citing MCR 2.116(C)(4) as an alternative basis for granting
summary disposition in favor of defendant. Nevertheless, I would conclude that this error does
not warrant reversal because the trial court reached the right result. Hall v McRea Corp, 238
Mich App 361, 369; 605 NW2d 354 (1999).
Next, plaintiff argues that defendant waived the right to challenge his standing to bring
this custody action because defendant failed to assert that plaintiff lacked capacity to sue as an
(…continued)
of standing to bring a custody action. Plaintiff did not orally request relief based on MCR
2.116(C)(4).
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affirmative defense in her first response pleading. MCR 2.111(F)(2); MCR 2.116(D)(2). I
disagree. In Terry v Affum, 233 Mich App 498, 503-504; 592 NW2d 791 (1999), the plaintiff,
the father of the minor child, and the defendants, the child's maternal aunt and uncle, stipulated
that the defendants would have visitation rights with the child following the sudden death of the
child's mother. Subsequently, plaintiff moved to amend the visitation order and to terminate the
defendants' rights to visitation on the basis that defendants had no legal right to visitation. The
trial court found that the defendants had standing to pursue visitation on the basis of their
relationship to the child's mother, who before her death had had sole custody of the child. The
trial court further concluded that termination of visitation would not be in the best interests of the
child.
On appeal, this Court reversed, stating, in relevant part:
Defendants make much of the fact that the parties originally stipulated
defendants' visitation rights with the minor child. Specifically, defendants
contend that once the parties agreed to allow defendants visitation, the trial court
had the authority to approve the stipulation and incorporate it into an order.
However, as our Supreme Court noted in Bowie v Arder, 441 Mich 23, 42-43; 490
NW2d 568 (1992), citing 59 Am Jur 2d, Parties, § 30, p 414,
"[o]ne cannot rightfully invoke the jurisdiction of the court to enforce private
rights, or maintain a civil action for the enforcement of such rights, unless one has
in an individual or representative capacity some real interest in the cause of
action, or a legal or equitable right, title, or interest in the subject matter of the
controversy. This interest is generally spoken of as 'standing.'"
Upon plaintiffs' decision to terminate defendants' visitation rights, defendants
were without standing to pursue visitation, irrespective of the prior agreement of
the parties. In our opinion, once a decision was made to terminate visitation, the
stipulation was of no moment and did not confer on defendants a "legal or
equitable right, title, or interest in the subject matter of the controversy," which
was not otherwise present. Id. [Id.]
In my judgment, the legal reasoning of Terry applies to the instant case. Clearly, at the
time plaintiff 's complaint was filed, he lacked standing to initiate the action. Once defendant
decided to terminate her stipulation that plaintiff was the father of the child and sought instead to
dismiss the action on the basis of plaintiff 's lack of standing, as a matter of law, the revoked
stipulation could not confer upon plaintiff any "legal or equitable right, title, or interest in the
subject matter of the controversy." Id. Thus, I would conclude that the trial court correctly
dismissed this action for lack of standing.
Even if the majority is correct in finding that the defense of standing was waived by the
defendant, I would find that the trial court properly dismissed plaintiff 's complaint for failure to
state a claim, pursuant to its application of § 6c of the Child Custody Act and § 4 of the
Acknowledgment of Parentage Act.
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I disagree with the majority's conclusion that defendant's answer and the trial court's
temporary order were sufficient to establish that plaintiff is the child's "father" and therefore not a
third person under the Child Custody Act. Because defendant was married at the time the child
was born, her husband is legally presumed to be the father of the child. Serafin v Serafin, 401
Mich 629, 636; 258 NW2d 461 (1977). In addition, MCL 700.2114(1)(a) of the Estates and
Protected Individuals Code, MCL 700.1101 et seq., states that where a child is born or conceived
during a marriage, both spouses are presumed to be the natural parents for purposes of intestate
succession. MCL 722.2 of the minors act, MCL 722.1 et seq., also states that the "parents" of a
minor child are equally entitled to custody of the child unless otherwise ordered by a court.
"Parents" is defined to mean "natural parents, if married prior or subsequent to the minor's birth .
. . or the mother, if the minor is illegitimate." MCL 722.1(b) (emphasis added). While the
above-cited statutes are not part of the Child Custody Act, these statutes share with the Child
Custody Act the purpose of promoting the best interests of children, and therefore may be
interpreted consistently with each other, or in pari materia. Deschaine v St Germain, 256 Mich
App 665; ___ NW2d ___ (2003). Because plaintiff is not a parent within the meaning of MCL
722.2 or MCL 700.2114(1)(a), and because he has not established paternity under MCL
722.1004, I would conclude that defendant's answer and the trial court's temporary order (entered
by stipulation of the parties with no hearing or findings having been made by the trial court) are
insufficient to establish that plaintiff is a "parent" within the meaning of the Child Custody Act,2
and that plaintiff 's assertion in his complaint that he is the minor child's "father" is insufficient,
on these facts, to state a claim under the act. I would also find that plaintiff must establish his
entitlement to custody as a third party under § 6c of the Child Custody Act.
2
The majority's finding to the contrary establishes a precedent that was not contemplated by the
Legislature in my judgment. As noted by our Supreme Court:
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 . . . . [In re CAW, 469 Mich 192,
199-200; 665 NW2d 475 (2003) (citations omitted).]
The majority opinion runs afoul of these values by negating the presumed legitimacy of the child.
Defendant's husband has never been a party to any proceeding challenging his paternity, and
there has been no judicial finding (based on admissible evidence) that defendant's husband is not
the legal father of the minor child. Thus, by virtue of the majority's opinion, either the child will
now have two legal fathers, or the defendant's husband, who by his marital status enjoyed a legal
presumption that he was the child's father before these proceedings, will have been stripped of
this presumption without any notice or opportunity to be heard. While there does not appear to
be collusion between plaintiff and defendant in this case (I note, however, that although paternity
was not challenged by defendant, plaintiff did not attach evidence of the paternity test results to
his complaint), the majority's ruling provides no bar to such collusion between a claimed putative
father and a woman married to someone else, who, for whatever reason, wish to rebut, without
notice, the legal presumption of fatherhood bestowed on the husband.
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MCL 722.26c states, in pertinent part:
(1) A third person may bring an action for custody of a child if the court
finds either of the following:
(a) Both of the following:
(i) The child was placed for adoption with the third person under the
adoption laws of this or another state, and the placement order is still in effect at
the time the action is filed.
(ii) After the placement, the child has resided with the third person for a
minimum of 6 months.
(b) All of the following:
(i) The child's biological parents have never been married to one another.
(ii) The child's parent who has custody of the child dies or is missing and
the other parent has not been granted legal custody under court order.
(iii) The third person is related to the child within the fifth degree by
marriage, blood, or adoption.
Plaintiff cannot establish a claim under § 6c. Subsection 6c(1)(a) indisputably does not apply
here, because the child was not placed for adoption. Furthermore, even though plaintiff has
clearly established that he is related to the child by blood and that he and defendant, as the child's
biological parents, have never been married, his complaint fails to and cannot plead that the
child's mother, defendant, is deceased or missing.
Section 4 of the Acknowledgment of Parentage Act, states:
An acknowledgement signed under this act establishes paternity, and the
acknowledgement may be the basis for court ordered child support, custody, or
parenting time without further adjudication under the paternity act . . . . The child
who is the subject of the acknowledgement 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.]
As noted above, plaintiff admits that there is no acknowledgment of paternity complying with §
4. Thus, plaintiff is unable to state a claim under this statute as well. I would conclude,
therefore, that the trial court properly granted summary disposition to defendant and dismissed
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plaintiff 's complaint under MCR 2.116(C)(8), because plaintiff failed to plead facts establishing
a claim for custody under which relief could be granted.3
Next, plaintiff argues that the undisputed facts establish that the child was born out of
wedlock and that, accordingly, the trial court erred by denying plaintiff 's motion for leave to
amend his complaint to state a paternity action. I disagree.
A putative father lacks standing to bring an action under the paternity act when the child
is born during the mother's marriage to another man, unless the putative father has obtained a
prior determination that the mother's husband is not the father. Girard v Wagenmaker, 437 Mich
231, 235; 470 NW2d 372 (1991). Plaintiff conceded below and on appeal that there was no prior
court order finding that defendant's husband was not the father of the child, and that there was no
order of filiation or acknowledgment of paternity establishing plaintiff as the father before the
filing of the complaint. Thus, on the facts presented here and to the trial court at the time
plaintiff sought leave to amend his complaint, plaintiff is unable to establish that he could
overcome the legislative "preference to avoid a challenge to a presumed legitimate birth until a
prior determination rebuts legitimacy . . . ." Id. at 250. The trial court properly denied plaintiff 's
motion to amend his complaint as futile. MCR 2.116(I)(5); Lane v Kindercare Learning
Centers, Inc, 231 Mich App 689, 696-697; 588 NW2d 715 (1998).
I would affirm.
/s/ Kurtis T. Wilder
3
I note that unlike a motion to dismiss for lack of standing under MCR 2.116(C)(5), a motion for
summary disposition for failure to state a claim under MCR 2.116(C)(8) may be raised at any
time, MCR 2.116(D)(3); Gerling Konzern Allgemeine Versicherungs AG v Lawson, 254 Mich
App 241, 248; 657 NW2d 143 (2002), in light of the guiding principle that a party should not be
required to defend against a claim that is not recognized in the state. Id.
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