Lucas County Department of Human Services v. Wayne

Full title: LUCAS COUNTY DEPARTMENT OF HUMAN SERVICES v WAYNE

Court: Michigan Court of Appeals

Date published: Feb 21, 1989

175 Mich. App. 102 (Mich. Ct. App. 1989)

437 N.W.2d 291

Opinion

Docket No. 109921.

Decided February 21, 1989. Leave to appeal applied for.

Kirk D. McMullen, for appellee.

William A. Garrett, for appellant.

Before: BEASLEY, P.J., and GILLIS and J.T. HAMMOND,^_ JJ.

_ Circuit judge, sitting on the Court of Appeals by assignment.

BEASLEY, P.J.

On June 13, 1988, the Monroe Circuit Court denied respondent Donald Gordon Wayne's petition for a change of custody as to respondent's two minor children. The sole issue on appeal is whether the circuit court erred in concluding that the issue of custody could not properly be raised in the proceeding before it. We find it did not.

Petitioner, Lucas County (Ohio) Department of Human Services, filed a Uniform Reciprocal Enforcement of Support Act (URESA)¹ petition on behalf of Carol Pollzzie, an Ohio resident. The petition alleged that respondent was the father of Ms. Pollzzie's two children and that the children were entitled to receive support from respondent. The case was certified to the Monroe Circuit Court (responding court) in Michigan, where respondent resides. In response to petitioner's show cause motion, respondent denied paternity. After blood tests indicated a high likelihood of respondent's paternity, respondent agreed, on April 8, 1987, to an order of filiation, which was entered June 1, 1987. On September 22, 1987, before an order of support could be entered, the court granted petitioner's motion to dismiss the URESA petition, since Ms. Pollzzie had moved to Michigan.² Subsequent to the dismissal, respondent petitioned the Monroe Circuit Court for custody of the children, seeking to "reopen this case".³ The Monroe Circuit Court denied the petition on June 13, 1988, stating, inter alia:

1 See Ohio Rev Code Ann §§ 3115.01 et seq. (Anderson 1980). For analogous provisions under Michigan law, see the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), MCL 780.151 et seq.; MSA 25.225(1) et seq.

2 The Lucas County, Ohio, court had granted a parallel motion on August 26, 1987.

3 This quotation is taken from the petition respondent filed with the Monroe Circuit Court. In this regard, we note that respondent has, on appeal, appended to his brief a document purporting to be the "petition for change of custody." However, the lower court records reveal that a somewhat modified petition was, in fact, filed with the court.

Under MCLA 780.182, Section 32(1) a proceeding pursuant to this Act ([R]URESA) shall adjudicate only the issue of support and shall not adjudicate an issue of custody or visitation. Therefore, under this statute a change of custody cannot be made.

On appeal, respondent does not contest the fact that RURESA proceedings are an inappropriate forum for custody determinations.⁴ Rather, respondent contends that, once the filiation order was entered, the Michigan Paternity Act⁵ took over and transformed that which had begun as a RURESA proceeding into a Paternity Act proceeding, and that under § 10 of the Paternity Act,⁶ the court had jurisdiction to effect a change of custody.

4 See MCL 780.182; MSA 25.225(32).

5 MCL 722.711 et seq.; MSA 25.491 et seq.

6 MCL 722.720; MSA 25.500.

We are not persuaded by respondent's argument — the leopard did not change its spots. In spite of a brief detour through the procedures of the Paternity Act, the proceeding below was, throughout, a RURESA proceeding. Section 16a of RURESA⁷ states that a responding court may adjudicate the issue of paternity in a RURESA proceeding where the obligor-father denies paternity and where the issue of paternity has not previously been established by way of marriage, legal acknowledgment or adjudication. The facts of the within case satisfy these requisites. Thus, under § 16a, the RURESA proceeding could properly encompass adjudication as to paternity.

7 MCL 780.166a; MSA 25.225(16a).

While specific procedures for the paternity determination are not set forth in RURESA, the Legislature has provided a statutory method for determining paternity under the Paternity Act. When faced with statutes which address the same subject (in pari materia), the two must be construed together and harmonized whenever possible.⁸ As the issues involved in a RURESA paternity determination parallel those involved in a proceeding under the Paternity Act, it is fitting that parallel procedures be utilized in the two.⁹ However, the mere fact that parallel procedures are to be utilized does not mean that whenever paternity is at issue the suit is to be pulled out of RURESA and replanted in toto in Paternity Act territory. Rather, we believe that, on the paternity issue, the responding court in the RURESA proceeding is to look to the Paternity Act for guidance as to form and procedure. Said guidance need be followed only to the extent that such form and procedure is consistent with the provisions of RURESA itself.

8 Crawford Co v Secretary of State, 160 Mich. App. 88, 95; 408 N.W.2d 112 (1987).

9 See Borchers v McCarter, 181 Mont. 169, 173-175; 592 P.2d 941 (1979); Clarkston v Bridge, 273 Or. 68, 78-79; 539 P.2d 1094 (1975); Dep't of Social Services v Wright, 736 S.W.2d 84, 86 (Tenn, 1987); 23 Am Jur 2d, Desertion and Nonsupport, § 135, p 985.

Section 32(1) of RURESA bars adjudication on the issue of custody. To the extent that the provisions of the Paternity Act permit a custody determination, a conflict between the two acts arises and, as between the two, where paternity is raised in a RURESA proceeding, the RURESA provision must control.

A RURESA proceeding "shall not adjudicate an issue of custody."¹⁰ Accordingly, the proceeding below was an inappropriate forum in which to raise the custody issue. The trial court's denial of respondent's petition for change of custody is, thereby, affirmed.

10 MCL 780.182; MSA 25.225(32).

Affirmed.