LME V ARS
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STATE OF MICHIGAN
COURT OF APPEALS
L. M. E. and FAMILY INDEPENDENCE
AGENCY,
FOR PUBLICATION
March 16, 2004
9:10 a.m.
Petitioners-Appellants,
v
No. 242681
Macomb Circuit Court
LC No. 2000-002352-UI
A. R. S.,
Respondent-Appellee.
Updated Copy
June 4, 2004
Before: Owens, P.J., and Schuette and Borrello, JJ.
OWENS, P.J.
Petitioners appeal as of right from the order denying their motion for child support and
dismissing the case with prejudice. Petitioners contend that the trial court erred by concluding
that LME was not entitled to child support because the child was conceived as a result of her
criminal action in having sexual relations with respondent when he was a fourteen-year-old boy.
The purpose of child support is to provide for the needs of the child; it is awarded without regard
to the fault of either of the parents. The trial court therefore erred by refusing to order child
support because respondent was technically the victim of an uncharged act of criminal sexual
conduct. We reverse the trial court and remand for a hearing and the entry of an order of child
support.
I. Factual background and procedural history
Petitioner LME was born in 1968 and respondent was born in 1974. In 1989, while
married, she gave birth to BME and listed her husband, DLE, as the child's father. In 2000, she
and DLE were divorced in New York. In the course of the divorce proceedings, or immediately
after the divorce was granted, blood tests established that DLE was not BME's biological father.
In 2001, a New York hearing examiner entered a filiation order indicating that respondent had
appeared with counsel and admitted being BME's father. The order therefore declared
respondent to be BME's father, but, in a separate order, declined to order child support "based on
the respondent's submission to the jurisdiction of Michigan for the entry of an order of support."
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Subsequently, the Macomb County prosecutor, on behalf of petitioners, petitioned the
trial court for child support.1 Respondent objected on the basis that (1) BME was conceived as a
result of criminal sexual conduct perpetrated against him by LME when he was fourteen years
old, (2) BME was conceived and born while LME was married to DLE, (3) respondent had no
knowledge of BME until this case was commenced, and (4) LME should not be allowed to profit
(in the form of child support) by her misconduct.
The trial court determined that BME was a child born out of wedlock within the meaning
of the Paternity Act, MCL 722.711(a). The court found no provision in the Family Support Act,
MCL 552.451 et seq., that entitled LME to her requested relief or that prohibited the court from
refusing to grant relief under the circumstances presented in this case. The court then applied
equitable principles to deny the petition for child support. After the trial court denied petitioners'
motion for reconsideration, petitioners appealed to this Court.
II. The trial court's subject-matter jurisdiction
Petitioners first claim that, where the New York court had already determined the
filiation issue and had sent the case to Michigan specifically for a child support determination,
the New York court acted improperly because it was required by New York law to order child
support, and the Michigan court acted improperly because it resolved the child support issue
rather than returning the case to New York. We disagree.
Initially, we note that petitioners waived this claim because they expressly acquiesced to
the trial court's exercise of jurisdiction to determine child support under Michigan law. People v
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (waiver is the intentional abandonment of a
known right and it extinguishes any error). Indeed, it was petitioners who petitioned the
Michigan trial court to determine the appropriate amount of child support. This intentional resort
to the Michigan courts waives their appellate claim that child support should have been decided
by the New York court.
However, petitioners also claim that the trial court lacked subject-matter jurisdiction to
try this case because the New York statutes required the New York court to determine child
support rather than send the case to Michigan for such a determination. "Subject-matter
jurisdiction is not subject to waiver because it concerns a court's 'abstract power to try a case of
1
Petitioners appear to assert that this case was initiated in the Macomb Circuit Court with the
filing of a petition pursuant to the Uniform Interstate Family Support Act (UIFSA), MCL
552.1101 et seq., requesting that New York determine parentage of the child and order child
support. There is nothing in the record that has been submitted to this Court to substantiate this
claim. In any event, we find this assertion—even if correct—irrelevant to our decision.
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the kind or character of the one pending' and is not dependent on the particular facts of the case."
Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 204; 631 NW2d 733 (2001) (emphasis
omitted), quoting Campbell v St John Hosp, 434 Mich 608, 613-614; 455 NW2d 695 (1990).
We will therefore review this issue for the limited purpose of determining whether the trial court
lacked subject-matter jurisdiction to decide whether to award child support.2
We review de novo the issue whether a trial court has subject-matter jurisdiction.
Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003). Additionally,
consideration of petitioners' claim also involves issues of statutory interpretation, which are
reviewed de novo. Id. at 534-535. "The primary goal of statutory interpretation is to give effect
to the intent of the Legislature. This determination is accomplished by examining the plain
language of the statute itself. If the statutory language is unambiguous, appellate courts presume
that the Legislature intended the meaning plainly expressed and further judicial construction is
neither permitted nor required." Id. at 535 (citations omitted).
The trial court obtained personal jurisdiction over respondent when he appeared and
contested the petition for child support. MCL 552.1201(b). But subject-matter jurisdiction
"concerns a court's 'abstract power to try a case of the kind or character of the one pending.'"
Travelers Ins Co, supra at 204 (emphasis omitted). It cannot be stipulated by the parties or
waived by a party's failure to object. Harris v Vernier, 242 Mich App 306, 316; 617 NW2d 764
(2000).
It is uncontested that Michigan courts have jurisdiction to award child support. Scott v
Scott, 182 Mich App 363, 366; 451 NW2d 876 (1990). Initially, this jurisdiction derives from
the general jurisdiction imparted to circuit courts by the Michigan Constitution:
The circuit court shall have original jurisdiction in all matters not
prohibited by law; appellate jurisdiction from all inferior courts and tribunals
except as provided by law; power to issue, hear and determine prerogative and
remedial writs; supervisory and general control over inferior courts and tribunals
within their respective jurisdictions in accordance with rules of the supreme court;
2
Petitioners also claim, without citing any relevant authority and without presenting this claim in
their statement of the issue, that the doctrine of res judicata barred respondent from raising any
defense in Michigan to the determination in New York that he had a duty to support his child.
We will not consider this claim because it is not included in petitioners' statement of the issue,
MCR 7.212(C)(5); Guardian Photo, Inc v Dep't of Treasury, 243 Mich App 270, 281; 621
NW2d 233 (2000), and because petitioners have merely stated the claim without providing this
Court with any supporting authority. Mudge v Macomb Co, 458 Mich 87, 104-105; 580 NW2d
845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
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and jurisdiction of other cases and matters as provided by rules of the supreme
court. [Const 1963, art 6, § 13.]
The circuit court's subject-matter jurisdiction will be presumed unless denied by constitution or
statute. People v Goecke, 457 Mich 442, 458; 579 NW2d 868 (1998); Bowie v Arder, 441 Mich
23, 38; 490 NW2d 568 (1992). See also MCL 600.151 (circuit court is a court of "general
jurisdiction") and MCL 600.601 (setting forth the jurisdiction and powers of the circuit court).
In addition to its general jurisdiction over "all matters not prohibited by law," our
Legislature has specifically granted circuit courts jurisdiction over matters involving paternity
and child support. MCL 722.714(1) provides that an "action under [the Paternity Act] shall be
brought in the circuit court by the mother, the father, a child who became 18 years of age . . ., or
the family independence agency as provided in this act." (Emphasis supplied.) See also MCL
722.712 (parents of a child born out of wedlock are liable for necessary support of the child),
MCL 722.714b (establishment of paternity under the law of another state has the same effect as
an acknowledgment of paternity or an order of filiation entered in this state), MCL 722.717
(providing for order of filiation declaring paternity and providing for support of child), MCL
552.605 (providing that child support amount is to be determined according to formula
developed by state friend of the court bureau).
Although a paternity action may not be brought "if the child's paternity is established
under the law of another state," MCL 722.714(2), the Family Support Act (FSA), MCL 552.451
et seq., permits actions for child support against a noncustodial parent by either a custodial
parent or the director of social services (now the director of the Family Independence Agency) if
the child is supported by public assistance. See MCL 552.451a and MCL 552.451b.
This case was initiated in the circuit court by a petition for child support on the basis that
respondent had acknowledged paternity, an order of filiation had been entered, and LME was
relying on public assistance for support of her child. Under the plain language of the abovementioned statutes, the circuit court clearly had subject-matter jurisdiction to determine the
question of child support. Petitioners contend, however, that the court's "ordinary" jurisdiction
was lacking because this case was brought as an action under the Uniform Interstate Family
Support Act (UIFSA), MCL 552.1101 et seq.
The stated general purpose for adopting the UIFSA in Michigan was "to make uniform
the law with respect to the subject of this act among states enacting it." MCL 552.1107.3 The
3
The UIFSA took effect in Michigan on June 1, 1997. MCL 552.1901. The UIFSA was
similarly enacted in New York as part of the Family Court Act (FCA), § 580.101 et seq.,
effective December 31, 1997. See the FCA, § 580.904.
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UIFSA contains a number of definitions relevant to the resolution of the question presented in
this case. MCL 552.1102(e) defines the "home state" as the "state in which a child lived with a
parent or a person acting as parent for at least 6 consecutive months immediately preceding the
time of petitioning for support. . . ." MCL 552.1103 provides, in relevant part:
(c) "Initiating state" means a state from which a proceeding is forwarded
or in which a proceeding is filed for forwarding to a responding state under this
act or a law or procedure substantially similar to this act, the uniform reciprocal
enforcement of support act, or the revised uniform reciprocal enforcement of
support act, 1952 PA 8, MCL 780.151 to 780.183.
(d) "Initiating tribunal" means the authorized tribunal in an initiating state.
(e) "Issuing state" means the state in which a tribunal issues a support
order or renders a judgment determining parentage.
(f) "Issuing tribunal" means the tribunal that issues a support order or
renders a judgment determining parentage. [Emphasis supplied.]
MCL 552.1104 provides, in relevant part:
(c) "Responding state" means a state in which a proceeding is filed or to
which a proceeding is forwarded for filing from an initiating state under this act or
a law or procedure substantially similar to this act, the uniform reciprocal
enforcement of support act, or the revised uniform reciprocal enforcement of
support act, 1952 PA 8, MCL 780.151 to 780.183.
(d) "Responding tribunal" means the authorized tribunal in a responding
state.
*
*
*
(j) "Tribunal" means a court, administrative agency, or quasi-judicial
entity authorized to establish, enforce, or modify support orders or determine
parentage.
MCL 552.1108 provides that "[t]he circuit court is the tribunal for this state." MCL
552.1221 provides that: "this state's tribunal may serve as an initiating tribunal to forward
proceedings to another state and as a responding tribunal for proceedings initiated in another
state." Proceedings for the establishment of child support and the determination of parentage are
both within the ambit of the UIFSA. MCL 552.1301(2)(a) and (f). MCL 552.1301(3) provides
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that a proceeding authorized by the act may be filed in either the initiating tribunal or "in a
tribunal of another state that has or can obtain personal jurisdiction over the respondent."
Here, the proceeding was commenced by filing a petition in the Macomb Circuit Court
seeking determinations with regard to respondent's paternity4 and child support obligations. As
noted, MCL 552.1301(2)(a) and (f) provide authority for such proceedings and MCL
552.1301(3) permits "[a]n individual petitioner or a support enforcement agency" to begin a
proceeding for purposes authorized by the act "by filing a petition in an initiating tribunal for
forwarding to a responding tribunal." Given this clear statutory language, we conclude that the
Macomb Circuit Court—"a tribunal for this state"—had subject-matter jurisdiction to entertain
and decide petitioners' child support petition under the UIFSA.
Despite the plain language of the UIFSA, petitioners argue that the trial court was
precluded from addressing the child support issue (raised by a petition that petitioners filed in the
trial court) because the New York court did not follow New York law by entering an order of
child support when it determined that respondent was the child's father. Petitioner LME did not
appeal the New York court's decision; instead she came to Michigan and sought to obtain a child
support order in this state. If petitioner LME was dissatisfied with the decision of the issuing
tribunal concerning the order of filiation it entered, or with its refusal—in a separate order—to
order child support, she should have appealed that decision within the New York appellate
system. We do not sit as an appellate court to review the decisions of our sister states.
Petitioners have failed to point this Court to any provision of the UIFSA that gives the
circuit courts of this state the authority to order the courts of a sister state to perform a particular
action, such as ordering child support. We will not search for authority to sustain petitioners'
argument. Mudge v Macomb Co, 458 Mich 87, 104-105; 580 NW2d 845 (1998), quoting
Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). MCL 552.1201 provides
authority for the circuit courts of this state to exercise personal jurisdiction over nonresidents.
MCL 552.1221 and MCL 552.1301(2)(a) and (3) provide authority to petitioners to commence a
proceeding to establish child support in this state's courts. Petitioners chose to utilize this
authority. Because the Macomb Circuit Court had subject-matter jurisdiction over petitions for
child support filed under the UIFSA, we reject petitioners' challenge to the authority of the trial
court.
III. Forfeiture of claim regarding res judicata effect of New York paternity decision
4
Although the paternity question had already been resolved in New York, petitioners' form
complaint initiating this action requested that the "responding jurisdiction" should establish
paternity.
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Petitioners further argue that the trial court's dismissal of petitioners' petition with
prejudice has resulted in "effectively barring [petitioners] from having [respondent] as the legal
father, as well as barring [petitioners] from establishing child support, in New York. The child
in the case at bar is a legally fatherless child at this time." Petitioners contend that the dismissal
of their support petition by the trial court "effectively set aside the April 3, 2001, Order of
Filiation and the April 3, 2001 Short Order [the order declining to determine child support]."
This contention is simply incorrect.
An order of filiation was entered by the New York court; it was not appealed.
Respondent did not contest in New York, and has not contested in this state, that he is the father
of the child. The trial court's dismissal of the child support petition did not change the fact—nor
did it even purport to address—the prior determination of the New York court that respondent is
the child's father.
Petitioners nevertheless claim that the doctrine of res judicata prevented the trial court
from adjudicating the issue of child support. Petitioners argue that New York had continuing
jurisdiction with regard to the issue of child support and this precluded the trial court from
making any determination concerning this issue—despite the fact that the issue was presented in
an action commenced by petitioners. The simple answer to this claim is that petitioners did not
raise this claim in the trial court; instead, they asked the court to consider the question of child
support and to order such support. To preserve this claim for appellate review, petitioner should
have objected on this basis in the trial court. Failure to do so constitutes a forfeiture of the claim
on appeal. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507
NW2d 422 (1993). Furthermore, "[a] party may not take a position in the trial court and
subsequently seek redress in an appellate court that is based on a position contrary to that taken
in the trial court." Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673
NW2d 805 (2003), quoting Living Alternatives for the Developmentally Disabled, Inc v Dep't of
Mental Health, 207 Mich App 482, 484; 525 NW2d 466 (1994). We therefore decline to
consider this forfeited claim.
III. Full faith and credit
Petitioners next contend that the trial court failed to give full faith and credit5 to the New
York court's order of filiation. Petitioners again claim that when the trial court dismissed the
petition with prejudice, "it effectively vacated and set aside the April 3, 2001, Order of Filiation."
Respondent acknowledged in his answer to petitioners' pleadings that he had been determined to
5
US Const, art IV, § 1.
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be the child's father and petitioners fail to point to any language in the trial court's order that set
aside the New York court's determination of parentage.
Moreover, petitioners raised this issue in their answer to respondent's motion to seal the
court file. This answer was filed over two months after the trial court entered its opinion and
order denying child support. Therefore, the issue was not timely raised before the trial court and
we decline to consider it. Booth, supra at 234-235. Even if we were to consider this
unpreserved constitutional claim, we would conclude that it is without merit.
The Full Faith and Credit Clause, US Const, art IV, § 1, provides, in relevant part, that
"Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial
Proceedings of every other State." The purpose of the Full Faith and Credit Clause "is to prevent
the litigation of issues in one state that have already been decided in another." Martino v
Cottman Transmission Systems, Inc, 218 Mich App 54, 58; 554 NW2d 17 (1996). As we have
concluded, the trial court gave full faith and credit to the New York court's order of filiation. In
fact, the premise underlying the trial court's decision is that respondent is the child's father, but
that he ought not to be liable for child support because of the circumstances surrounding the
child's conception. Additionally, the New York court did not decide the issue of child support;
therefore, there was no decision regarding support to which full faith and credit could be given.
Therefore, petitioners' argument is meritless.
IV. Equal protection and the application of the child support laws to a minor male who is a
victim of criminal sexual conduct with an adult female
Petitioners next contend the trial court violated their rights to equal protection,6 as well as
the child's equal protection rights because the trial court refused to order child support on the
basis that the child was born out of wedlock as a result of LME's act of criminal sexual conduct.
Petitioners argue that the statute concerning child support does not differentiate between children
born as a result of noncriminal sexual intercourse and those resulting from acts of criminal
sexual intercourse. Petitioners claim instead that this Court has repeatedly indicated that the
child support laws apply to all children, regardless of the way in which they were conceived, and
that the purpose of these laws is not to penalize anyone, but instead to obtain support for these
children from their noncustodial parents. We disagree that petitioners' right to equal protection
was violated, but we find that the child support law does, indeed, apply to respondent despite the
manner in which the child was conceived.
6
US Const, Am XIV; Const 1963, art 1, § 2.
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Both in the trial court and on appeal, petitioners have failed to make a coherent, case-lawsupported argument establishing that the trial court's consideration of the circumstances
surrounding the child's conception constituted a violation of their right to equal protection.
Ordinarily, "[i]t is not enough for an appellant in his brief simply to announce a position or assert
an error and then leave it up to this Court to discover and rationalize the basis for his claims, or
unravel and elaborate for him his arguments, and then search for authority either to sustain or
reject his position." Mitcham, supra at 203. Because of the inadequate treatment given this
argument by petitioners, we could decline to consider it. Meagher v Wayne State Univ, 222
Mich App 700, 716; 565 NW2d 401 (1997).
Nevertheless, petitioners' essential argument is that the trial court failed to follow the
child support law. To the extent this issue was not properly raised on appeal, we have held that
we may choose to "address any issue that, in the court's opinion, justice requires be considered
and resolved." Paschke v Retool Industries (On Rehearing), 198 Mich App 702, 705; 499 NW2d
453 (1993), rev'd on other grounds 445 Mich 502; 519 NW2d 441 (1994). The underlying claim
here is one of first impression in this state and is of great importance. We therefore conclude
that it is appropriate for us to determine whether the trial court correctly decided not to order
child support because the child was conceived as a result of an act of criminal sexual conduct in
which respondent was the victim.
Respondent argued that he was the victim of an act of criminal sexual conduct committed
by LME because he was fourteen years old when she induced him to have sexual intercourse.
He reasoned that because he was under the age of consent, his participation was legally
involuntary.7 This argument confuses two distinct legal concepts. Because of his age at the time
of the sexual conduct, the law refuses to permit the adult in the relationship to claim consent as a
defense. People v Gengels, 218 Mich 632, 641; 188 NW 398 (1922) ("Proof of consent is no
defense, for a female child under the statutory age is legally incapable of consenting."); People v
Bennett, 45 Mich App 127; 205 NW2d 831 (1973) (fourteen-year-old boy incapable of giving
legal consent to act of taking indecent liberties). Therefore, even if respondent was a willing
participant in the sexual intercourse, LME could still have been charged with, at least, thirddegree criminal sexual conduct. MCL 750.520d(1)(a) (victim at least thirteen years of age but
under sixteen years of age).
7
Respondent claimed that LME plied him with alcohol and the promise of sex with an older
woman to induce him to engage in sexual intercourse with her; there is no support in the record
for this allegation so we need not consider it. Hawkins v Murphy, 222 Mich App 664, 670; 565
NW2d 674 (1997). However, we note that this claim does not assist respondent's argument that
the sexual relationship was not consensual.
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However, the issue presented by this case is not LME's criminal culpability for criminal
sexual conduct, or whether respondent was—or could have been—a "consensual" participant in
that activity. Rather, we are concerned with whether respondent may be liable for child support
for the child that resulted from the sexual activity. Child support is not imposed to penalize or
victimize either parent. "The purpose of child support is to provide for the needs of the child."
Macomb Co Dep't of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710
(2002), citing Evink v Evink, 214 Mich App 172, 176; 542 NW2d 328 (1995). "Child support is
not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the
child." Pellar v Pellar, 178 Mich App 29, 35; 443 NW2d 427 (1989).8
Guidance regarding this determination may be derived from the decisions of sister states
that have confronted this issue. The courts that have considered this issue have uniformly
concluded that the fact that a child results from the criminal sexual act of an adult female with a
minor male does not absolve the minor from the responsibility to pay child support.
For example, in Schierenbeck v Minor, 148 Colo 582; 367 P2d 333 (1961), a twenty-year
old female (who was married to another man) had sexual relations with the plaintiff with the
result that a child was born. The Colorado Supreme Court rejected any suggestion that the
plaintiff 's third-degree rape by the adult female excused his liability to provide for the support of
his child and stated:
Certain it is that his assent to the illicit act does not exclude commission of
the statutory crime, but it has nothing to do with assent as relating to progeny.
His youth is basic to the crime; it is not a factor in the question of whether he is
the father of Sherrie Lynn.
"The putative father may be liable in bastardy proceedings for the support
and maintenance of his child, even though he is a minor * * * ." 10 C.J.S.
Bastards § 53, page 152. If Schierenbeck is adjudged to be the father of Sherrie
Lynn after a proper hearing and upon sufficient evidence, he should support her
under this fundamental doctrine. [Id. at 586.]
The Wisconsin Court of Appeals in In re Paternity of JLH, 149 Wis 2d 349; 441 NW2d
273 (1989), rejected the claim that a fifteen-year-old boy who had intercourse with an eighteenand-a-half-year-old female was absolved of responsibility to support the resultant child because
8
This Court has concluded that the securing of support for children is so important that it has
held that even where a parent voluntarily releases his parental rights, he is still liable to pay
support for the child as long as the child's custody remains with the other biological parent.
Evink, supra at 176.
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he was a victim of a sexual assault and the female should not be permitted to benefit from her
crime. The court stated:
We reject appellant's argument that his paying child support to L.H. would
permit her to benefit from her crime. Even assuming that L.H. criminally
assaulted appellant, child support is paid to benefit the child, not the custodial
parent. The custodial parent receives support payments in trust to be used for the
child's welfare. [Id. at 358.]
The Illinois Court of Appeals rejected a similar claim in In re the Parentage of JS, 193 Ill
App 3d 563; 550 NE2d 257 (1990). The respondent in that case claimed that Illinois public
policy protected him, as a minor, from the consequences of his "improvident conduct." The
court disagreed and stated:
We note that contrary to the respondent's position, Illinois public policy
has never offered blanket protection to reckless minors. At the same time, Illinois
public policy has recognized the blanket right of every child to the physical,
mental, emotional, and monetary support of his or her parents. The public has an
interest in protecting children from becoming wards of the state.
In the instant case, we find that the public policy mandating parental
support of children overrides any policy of protecting a minor from improvident
acts. [Id. at 565 (citations omitted).]
See also Commonwealth v A Juvenile, 387 Mass 678, 680; 441 NE2d 1155 (1982) (juvenile is
required to support his or her illegitimate child; "The illegitimate child has interests, as does the
Commonwealth.").
In Mercer Co Dep't of Social Services v Alf M, 155 Misc 2d 703; 589 NYS2d 288 (1992),
the county family court rejected the respondent's argument that because he was technically the
victim of a crime (he was sixteen when he had sexual relations with the child's mother, who was
twenty-one at the time), he should not be held legally responsible to support the child. The court
responded:
Respondent father's recourse under the law as to the mother of the child in
this matter, was to file criminal charges against her. To penalize this child for the
mother's actions would run contrary to the fundamental purpose of this
proceeding as established by statutory and case law. This Court is not concerned
with the child's mother's actions but rather protecting the best interests of and
insuring that adequate provision will be made for, the child's needs. [Id. at 705706.]
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Citing In re Parentage of JS, supra, and Commonwealth v A Juvenile, supra, the Kansas
Supreme Court in State ex rel Hermesmann v Seyer, 252 Kan 646; 847 P2d 1273 (1993), held
that the state could require that the thirteen-year-old juvenile father pay for the support of the
child that resulted from his sexual intercourse with his seventeen-year-old babysitter. The Court
stated:
This State's interest in requiring minor parents to support their children
overrides the State's competing interest in protecting juveniles from improvident
acts, even when such acts may include criminal activity on the part of the other
parent. Considering the three persons directly involved, Shane, Colleen, and
Melanie, the interests of Melanie are superior, as a matter of public policy, to
those of either or both of her parents. This minor child, the only truly innocent
party, is entitled to support from both her parents regardless of their ages. [Id. at
654-655.]
The California Court of Appeals in San Luis Obispo Co v Nathaniel J, 50 Cal App 4th
842; 57 Cal Rptr 2d 843 (1996), considered a case where the father was fifteen and the mother
thirty-four when their consensual sexual relations resulted in the birth of a child. The mother
was convicted of unlawful sexual intercourse with a minor and the father then claimed that he
was not required to pay child support because he was the victim of a statutory rape. The court
rejected this claim. The court observed that the father engaged in consensual sexual intercourse
five times over a two-week period, noted that "[o]ne who is injured as a result of criminal
conduct in which he willingly participated is not a typical crime victim," and concluded that he
was not a victim of sexual abuse. Id. at 845. After taking cognizance of the decisions in other
states upholding orders for child support involving minor males who had been the victims of
unlawful sexual intercourse, the court concluded that it agreed with the reasoning and holdings
of those decisions.
In Jevning v Cichos, 499 NW2d 515 (Minn App, 1993), Jevning had a child after having
sexual intercourse with Cichos when she was twenty and he was fifteen years old. Cichos
argued that he should not be required to pay child support because he was the victim of criminal
sexual conduct. The Minnesota Court of Appeals disagreed and reasoned:
Statutory nonconsent under some definitions of criminal sexual conduct
does not translate to a holding that on the civil issue of child support, minors can
never be held responsible for their children resulting from sexual conduct.
Generally, minors are responsible for their actions; exceptions to that principle are
rare. For instances, minors are generally accountable for their economic
transactions, allowed to sue and can be sued, are accountable for acts of juvenile
delinquency, and may be certified to be tried as adults, depending on the
circumstances. [Id. at 518.]
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See also SF v State ex rel TM, 695 So 2d 1186, 1189 (Ala App, 1996) (the child is an innocent
party and the purpose behind the state parentage act is to provide for the welfare of the child;
"any wrongful conduct on the part of the mother should not alter the father's duty to provide
support for the child"); Hamm v Office of Child Support Enforcement, 336 Ark 391, 398; 985
SW2d 742 (1999) (accepting general rule that "father who had been below the age of consent for
sexual intercourse under criminal sexual conduct statutes at the time of conception is liable for
supporting the child resulting from that union").
We agree with these authorities. The record indicates that respondent participated in the
act of sexual intercourse that resulted in the conception of BME. Respondent is not absolved
from the responsibility to support the child because LME was technically committing an act of
criminal sexual conduct. The public policy of this state seeks to secure support for children.
Contrary to respondent's view, LME does not "profit" from her criminality. "Child support is not
imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the
child." Pellar, supra at 35. We recognized in Pellar that "[t]he needs of the child are of
overriding importance." Id. This important public policy is furthered by requiring respondent to
pay child support. The trial court erred by refusing to award child support on the basis that
respondent was the "victim" of an act of criminal sexual conduct. We therefore reverse the order
denying child support and remand this case to the trial court for a hearing to determine the proper
amount of support respondent should be required to contribute.
V. Due process
Petitioners also claim a denial of due process because the trial court dismissed the request
for child support with prejudice. Because of our disposition of the previous issue, it is
unnecessary to address this constitutional claim. Booth Newspapers, Inc, supra at 234. In any
event, we note that petitioners have failed to cite any supporting authority for their underdeveloped due process claim and, for this additional reason, we decline to consider it. Wilson v
Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) ("a mere statement without authority is
insufficient to bring an issue before this Court").
VI. Termination of parental rights
Petitioners finally claim that the trial court's dismissal of the case constituted a
termination of respondent's parental rights. Petitioners did not raise this issue in the trial court
and therefore it is not preserved for appellate review. ISB Sales Co v Dave's Cakes, 258 Mich
App 520, 532-533; 672 NW2d 181 (2003). In any event, this case does not involve a termination
of parental rights and nothing in the record or the trial court's order indicates that respondent's
parental rights were terminated. Moreover, respondent, rather than petitioners, is the proper
party to raise this claim; after all, the issue involves his parental rights, not those of petitioner
LME. In re Foster, 226 Mich App 348, 358; 573 NW2d 324 (1997) ("In order to have standing,
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a party must have a legally protected interest that is in jeopardy of being adversely affected.").
Respondent has not claimed that his parental rights have been terminated.
Reversed and remanded for determination of the proper amount of child support due from
respondent. We do not retain jurisdiction.
Borrello, J., concurred.
/s/ Donald S. Owens
/s/ Stephen L. Borrello
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