Mich. man who was not child’s father gets support order lifted

DETROIT — A man who was determined to not be a child’s biological father can have a prior child-support order set aside under the general “relief from judgment” court rule, the Michigan Court of Appeals has decided in a published opinion.

When genetic testing showed the defendant, Aaron Dormio, was not the father of the plaintiff’s child, he filed a motion under the Revocation of Paternity Act, MCL 722.1431 et seq., to set aside the default order of filiation that had been entered.He also asked the court to set aside the child-support order that was previously entered, for which arrearages had accumulated.

Livingston County Circuit Judge Miriam A. Cavanaugh denied the defendant’s motion to set aside the support order. She said that he did not meet his burden under MCR 2.612(C)(1)(f), which says relief from judgment may be obtained for “any other reason” justifying it.

On appeal, the defendant argued that although the RPA did not offer a way to get relief from arrearages owing for a child determined not to be his, the Legislature clearly intended that such relief be available.

“We agree,” said Court of Appeals Judge Cynthia Diane Stephens. “We find that MCL 722.1433(3) allows a person who has obtained a judgment under the RPA to seek relief from prior child support orders under MCR 2.612.”

According to Stephens, the RPA specifically allows a defendant to rely on the court rules to lift a prior support order. She also noted that MCR 2.612 expressly provides for that relief, and does not limit the kind of orders from which relief may be sought.

“Therefore, the text of the statute and the court rule provide no legal reason barring defendant from seeking relief from the modified [Uniform Child Support Order] under MCR 2.612,” she said.

The decision is Adler v. Dormio (MiLW No. 07-88221, 5 pages). Judges Kurtis T. Wilder and Deborah A. Servitto joined the opinion.

Method of ‘attack’

Sterling Heights lawyer Matthew M. Schultz represents the defendant. He said the Court of Appeals decision makes it clear that those who successfully set aside an order of filiation under the RPA have an avenue outside the act to attack child-support arrearages.

“There is no question now that one can obtain relief from a Uniform Child Support Order under MCR 2.612, even though the RPA indicates that a judgment under the act does not relieve a man from a support obligation that incurred before the action was filed,” said Schultz, who is with Akiva Goldman & Associates.

Schultz noted that his client did not learn about the default order of filiation until several years after the support order was entered. He said that he hopes the appellate court’s ruling will result in the setting aside of nearly $50,000 in past-due support.

“It seems unreasonable for a court to determine, by order, that a man is not the legal and natural father of a child but still require that man to pay past-due support,” Schultz said. “Hopefully, those who find themselves in similar predicaments will now be able to set aside support judgments so that they may move on without the threat of garnishment, license suspension and jail hanging over their heads.”

The plaintiff in the case was not represented by counsel.

Relief is available

The RPA’s “clear and unambiguous language” says that while a judgment under the act does not automatically excuse a parent from complying with prior support orders, “it also does not bar a motion to have the judgment vacated or set aside by means of any applicable court rule,” Stephens explained.

Also, MCR 2.612(C)(1)(f) says that a court may relieve a party from a final judgment or order for “any other reason justifying relief from the operation of the judgment,” the judge pointed out.

“As long as a party meets the requirements for obtaining relief under any one of the specified grounds, nothing in the text of MCR 2.612(C)(1) renders it ineffective against a UCSO as a matter of law,” Stephens said.

Here, the trial judge noted there was an absence of case law on the interplay between the RPA and MCR 2.612 and ruled that “legally” she could not grant the defendant any relief.

“However, the court offered no reasons for its denial of defendant’s motion other than its belief that defendant had not met his burden,” Stephens wrote.

“We cannot say as a matter of law whether this defendant can meet the burden under MCR 2.612, however, we can state that relief under that rule is available to this defendant and others who are successful under the RPA.”

Accordingly, the Court of Appeals vacated the order denying the defendant’s motion to set aside the support order pursuant to MCR 2.612(C)(1)(f), along with all the support enforcement orders.

This article is by Traci R. Gentilozzi of Michigan Lawyers Weekly, a sister publication to The Daily Record, and moved on the Dolan Media Newswires.

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