Adler v Dormio, Docket No 319608, decided March 19, 2015 For Publication is quite an interesting decision. The Court of Appeal held that, under the Revocation of Parentage Act, MCL 722.1431 et seq., ["RPA"] the affiliated father of a child born in 2005 has a right to a hearing in the trial court on remand to determine whether he is entitled to have child support arrearages cancelled upon the finding that he was not the biological father.
Dormio sought relief under MCR 2.612(C)(1)(f). He requested cancellation of any support not owed to the State of Michigan. [The arrearages exceeded $45,000, and only $300 was owed to the state.]
RPA, among other things, permits an man found by a court to have fathered a child out of wedlock “whose paternity was determined based on the affiliated father’s failure to participate in the court proceedings” to “file a motion with the court that made the determination to set aside the determination.” MCL 722.1439(1), 1443(2)(b). The time limit within which to file a motion is within 3 years after the child's birth or within 1 year after the date of the order of establishing parentage. The father here filed within 1 year of the enactment of RPA (June 12, 2012), a "savings clause" that has now lapsed.
Interestingly, the COA here said: "Typically, a motion under MCL 722.1439 must be filed within 3 years after the child’s birth or one year of the order of filiation, whichever is later. MCL 722.1439(2). [Emphasis added] [Do you begin to get the feeling that there is another means of seeking relief?]
The COA held that this litigant, who timely filed, was entitled to a hearing on his motion to cancel all arrearages owed to the mother under a Michigan Court Rule, MCR 2.612(C)(1). The trial court had denied his motion under the court rule without stating any reasons on the record for denying his motion.
Mr. Dormio prevails in the COA: The COA stated that RPA provides:
A judgment under this act does not relieve a man from a support obligation for the child or the child’s mother that was incurred before the action was filed or prevent a person from seeking relief under applicable court rules to vacate or set aside a judgment. (Emphasis in original.) Citing MCL 722.1443(3)
The COA then remanded for a hearing to determine his right to relief under MCR 2.612(C)(1).
Application to other men paying support for children who are not theirs:
Do men who have been ordered to pay support for children who are not their biological children have any right to relief from accrued arrearages even though the child or children are older than three?
Let's take another look at the word "typically," which I highlighted above.
A Right to an Extension in Time to File:
The Revocation of Parentage Act also provides that a court may extend the time for filing an action (beyond the child's third birthday) under certain circumstances: See MCL 722.1443(12), which states:
(12) A court may extend the time for filing an action or motion under this act. A request for extension shall be supported by an affidavit signed by the person requesting the extension stating facts that the person satisfied all the requirements for filing an action or motion under this act but did not file the action or motion within the time allowed under this act because of 1 of the following:
(a) Mistake of fact.
(b) Newly discovered evidence that by due diligence could not have been found earlier.
(d) Misrepresentation or misconduct.
These stated grounds for extending the time period within which a motion to vacate an order establishing parentage may be filed are nearly identical to the grounds upon which relief might be granted under MCR 2.612(C)(1).
By extension, doesn't the COA's rationale also apply to those alleged fathers who have not participated (for lack of knowledge, or non-service, or other reasons) if the money is owed to a mother (not the State) where that alleged father invokes a right to relief under MCL 722.1443(12)?
I guess that time will tell. James P. Ryan, a family attorney in Plymouth, Michigan who has lectured and written about RPA opines:
Yes, there is a potential for relief, but good luck getting past that procedural hurdle. Also, the entitlement to relief under the court rule also becomes tougher to satisfy if many years have elapsed (although that is what happened in the case under discussion).
You may read the Court of Appeals decision here: Download Adler_v_Dormio
You may review the Revocation of Parentage Act here: Download Revocation of Parentage Act, Act-159-of-2012
You may read MCR 2.612(C) here: Download MCR 2.612(C)