Trial Court Correctly Disallowed Postjudgment Motion To Revoke Paternity

The trial court properly denied the plaintiff’s postjudgment motion to revoke paternity under the Revocation of Paternity Act (ROPA), the Michigan Court of Appeals has ruled.

The plaintiff in Klimkewicz v Klimkewicz (Docket No. 364783) indicated that he was the child’s father during the parties’ divorce proceedings, when in fact both parties knew that he was not. Years later, the plaintiff filed a motion to revoke paternity, claiming that because he was the child’s presumed father, he could file a postjudgment motion under the ROPA, MCL 722.1431 et seq., because the trial court never firmly established that he was the child’s father.

The Court of Appeals rejected this argument. “There is no dispute that the three-year limit on bringing a ROPA action does not apply,” the appeals court said. “Plaintiff’s motion to revoke paternity was brought in 2022, 12 years after LMK’s birth. Likewise, it was not brought as part of an action for divorce or separate maintenance.”

In its decision, the Court of Appeals distinguished this case from Glaubius v Glaubius, on which the plaintiff relied to argue that:

• for there to be a determination that a man is a child’s father, there must have been a paternity dispute and an “actual resolution” by a trial court, resulting in an order establishing the man as the child’s father.

• because no dispute existed in this case and paternity was never established by a trial court, the plaintiff should be allowed to revoke paternity.

“Plaintiff’s attempt to use Glaubius to his advantage is unavailing,” the Court of Appeals said.

Judge Michelle M. Rick and Judge Allie Greenleaf Maldonado joined the unpublished opinion. Judge Christopher M. Murray wrote a separate concurrence, saying that while he agreed with the majority decision, he was concerned that Glaubius “incorrectly concluded that a paternity provision within a consent judgment of divorce does not provide the father with the ‘affiliated father’ status under MCL 722.1433(b).”

Background

The parties were married in 2006. Sometime later, the defendant became romantically involved with another man. The minor child, LMK, was conceived during that time and was born in 2010. There was no dispute the plaintiff was not LMK’s biological father; the plaintiff was aware of this fact from the time he learned the defendant was pregnant. The plaintiff and the defendant agreed the plaintiff would raise LMK as his own son.

In the years that followed, the plaintiff and the defendant unsuccessfully tried to save their marriage. The plaintiff filed for divorce in 2018. A consent judgment of divorce was entered in March 2019, at which time both parties represented to the Saginaw County Circuit Court that LMK was a child of their marriage.

In April 2022, the plaintiff moved to revoke his paternity of LMK under the ROPA. Specifically, the plaintiff argued that MCL 722.1441(2) “allows a presumed father to bring an action … to determine that the child was born out of wedlock, and not the natural child of the Plaintiff.” He asserted the parties had agreed to no child support “based in part on the clearly dysfunctional and nontraditional relationship that had occurred to date.” The plaintiff further maintained the parties had known the plaintiff was not LMK’s biological father and that LMK “disavows any relationship” with the plaintiff and “does not look to or consider” the plaintiff his father. The plaintiff contended that one reason paternity was not addressed during the divorce was to keep LMK on the plaintiff’s health insurance.

The plaintiff requested the consent judgment of divorce be amended to reflect that he was not LMK’s biological father “and therefor[e] has no parental rights or obligations regarding said child based on the information contained in the affidavit and upon other good and equitable means.” The plaintiff argued this motion was allowed under Michigan law even after the consent judgment of divorce was entered.

At a trial court hearing, the plaintiff relied on Glaubius to assert there was no duty on his part to challenge paternity during the divorce proceedings and that nothing prevented him from challenging it now. Meanwhile, the defendant claimed the three-year limit on challenging paternity still applied to a presumed father and that Glaubius was distinguishable because it involved a father who did not know during the divorce proceedings that he was not the child’s biological father. The trial court adjourned the hearing, asking the parties to submit briefs on their arguments.

The trial court ultimately denied the plaintiff’s motion to revoke paternity. The trial court said: “The Court has to look very closely before it would terminate a paternity after that many years. Normally it’s required they come in within the first couple of years if there is any question. You didn’t do that because you were raising him as your own. And for that reason the Court is going to deny the revocation of paternity.”

The trial court denied the plaintiff’s motion for reconsideration. The plaintiff appealed.

ROPA Action Disallowed

On appeal, the plaintiff claimed that because he is LMK’s presumed father, the ROPA allowed him to file a postjudgment motion to revoke paternity.

“We disagree,” the Court of Appeals said, explaining that under the ROPA a “[p]resumed father” is “a man who is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth.”

Michigan has “long recognized” that a child conceived or born during a marriage is presumed to be a child of that marriage, the Court of Appeals said, citing Glaubius. Here, because the plaintiff and the defendant were married at the time of the child’s conception and birth, the plaintiff “plainly obtained the status of presumed father.”

Because the plaintiff is LMK’s presumed father, MCL 722.1441(2) applies, the Court of Appeals said. That section of the ROPA says: “If a child has a presumed father, a court may determine that the child is born out of wedlock for the purpose of establishing the child’s paternity if an action is filed by the presumed father within 3 years after the child’s birth or if the presumed father raises the issue in an action for divorce or separate maintenance between the presumed father and the mother. The requirement that an action be filed within 3 years after the child’s birth does not apply to an action filed on or before 1 year after the effective date of this act. [Emphasis added.]”

According to the Court of Appeals, the defendant “erroneously argued” in the trial court that the plaintiff could only bring his paternity action within three years of LMK’s birth and this limitations period could only be dispensed with for good cause. “This is not accurate,” the appeals court said, citing Taylor v Taylor where the panel ruled that the “or” in MCL 722.1441(2) “is disjunctive.” As a result, the Taylor panel held that “the Legislature intended exactly what it said. The presumed father may raise the issue in a paternity action filed within three years of the child’s birth OR in a divorce action (without regard to the child’s age).”

Turning to the present case, the Court of Appeals noted there was “no dispute” that the three-year limit on bringing a ROPA action did not apply. “Plaintiff’s motion to revoke paternity was brought in 2022, 12 years after LMK’s birth. Likewise, it was not brought as part of an action for divorce or separate maintenance. Thus, it would appear that MCL 722.1441(2) bars plaintiff from bringing a ROPA action altogether.”

However, the plaintiff claimed that he should be allowed to bring his postjudgment ROPA action because he “is merely LMK’s presumed father, meaning that paternity was never established by a court,” the Court of Appeals observed. “As … noted, the issue of paternity was not disputed or addressed in the parties’ judgment of divorce or in any other proceeding prior to plaintiff’s current attempt to revoke paternity. Indeed, by signing the consent judgment the parties conceded paternity despite knowing from the child’s conception that plaintiff was not the biological father. It is also noteworthy that plaintiff provided sworn testimony at the pro confesso hearing wherein he acknowledged LMK as his child.”

‘Glaubius’ Distinguished

The plaintiff argued that under Glaubius, “in order for there to be a determination that a man is a child’s father, ‘there must have been a dispute or question about the issue of paternity and an actual resolution of the matter by the trial court, culminating in a judicial order establishing the man as the child’s father.’ … Since no dispute existed and paternity was never established by a court, plaintiff reasons that he should now be permitted to revoke paternity.”

The Court of Appeals, however, said it found “unavailing” the plaintiff’s attempt to use Glaubius advantageously. “The language quoted by plaintiff … was discussed in Glaubius in the context of establishing whether a man is an affiliated father, not a presumed father. … Plaintiff makes no attempt to explain why we should find it persuasive in the instant matter, particularly given that he maintains that he is the child’s presumed father and should remain so. His main point appears to be that, because the plaintiff in Glaubius was permitted to bring a postjudgment ROPA action, he should also be able to bring a postjudgment ROPA action.”

Glaubius is distinguishable from the instant case, the Court of Appeals said. “Glaubius involved a paternity action in which the plaintiff believed that the defendant was the child’s biological father when the judgment of divorce was entered. … It only became apparent that the defendant was not the child’s father after the judgment was entered, at which point the plaintiff filed an action to revoke the defendant’s paternity. … Here, the parties knew that plaintiff was not LMK’s father from the time the child was born. Plaintiff cannot now claim that his ROPA action should succeed simply because he and defendant did not raise the matter of paternity in the judgment of divorce, despite knowing this fact since 2010. Nothing in Glaubius or the ROPA suggests that the Legislature intended to create such a loophole. Rather, the language of MCL 722.1441(2) is clear: a party may only challenge paternity either by doing so within three years of a child’s birth or prior to entering a judgment in a divorce action. Plaintiff knowingly and willfully did neither, thus extinguishing his right to challenge paternity of LMK.”

Further, the Court of Appeals held that the plaintiff was estopped from challenging paternity because he did not bring the issue to the trial court’s attention in the divorce proceeding, although he knew that he was not LMK’s biological father. “Again, plaintiff knew he was not the child’s father from day one. If he wished to challenge his paternity of LMK, he should have done so within three years of LMK’s birth or during the divorce proceedings.”

In conclusion, the parties in the case “essentially committed fraud upon the court,” the Court of Appeals observed. “Even if such is not the case, plaintiff agreed to raise LMK as his own son, and now seeks to break that agreement by claiming that MCL 722.1441(2) does not apply to him as a presumed father. We strongly disagree. Plaintiff cannot simply walk away from his role as LMK’s father by claiming that because he effectively misled the court about LMK’s parentage, he now has the right to bring a postjudgment ROPA action. That is not what Glaubius stands for, nor is it in accord with the plain language of the ROPA. We therefore hold that the trial court properly denied plaintiff’s motion to revoke paternity.”