Michigan Court Of Appeals Hold Mistake Of Fact Applies In Paternity Case

On August 25, 2015, the Michigan Court of Appeals held in a paternity case that the trial court committed plain error when it denied defendant's motion to revoke his earlier-signed acknowledgement of parentage form. 

In Rogers v Wcisel, Docket No. 318395, the Michigan Court of Appeals addressed the issue of whether defendant was entitled to revoke his acknowledgement of parentage based on his claim that he signed the form under the mistaken belief that he was indeed the father of plaintiff-mother's child. The trial court denied defendant's motion to revoke the acknowledgement following a bench trial at which plaintiff, defendant, plaintiff's mother, and the father's child testified about the facts surrounding the birth of plaintiff's child.

The Court first recited the facts of the case:

Plaintiff, Shana J. Rogers, and defendant, David A. Wcisel, began an “off and on” dating relationship in 2006. On March 12, 2007, plaintiff gave birth to MW. Defendant was present for the delivery of MW and signed an acknowledgement of parentage at the hospital. Plaintiff and defendant continued to reside together for approximately one year after MW’s birth before they separated and defendant left the residence. On July 3, 2008, plaintiff, through the Otsego County Prosecutor’s Office, filed a complaint for child support against defendant. Defendant filed an answer which admitted to allegations that he was the father of MW, that he was not living with the child, that the child was receiving public assistance, and that he was “of sufficient ability to provide support for the child[] and [had] failed to provide support.” As a result, the parties signed a consent order on August 19, 2008, granting plaintiff sole legal and physical custody of MW, requiring defendant to pay $2,670 toward plaintiff’s reasonable and necessary confinement expenses, and requiring defendant to pay $442 per month in child support.

Sometime later defendant began to notice that MW had “physical attributions” that were not his and asked plaintiff for a DNA (Deoxyribonucleic Acid) test. The DNA test results showed that there was a zero percent chance that defendant was MW’s biological father. Thereafter, on July 15, 2012, defendant filed a motion requesting that the trial court revoke the parties’ acknowledgement of parentage, relieve him of any child support obligations, and reimburse him for the child support expenses he had previously paid. Along with his motion, defendant attached the DNA test and an affidavit in which he averred that he signed the acknowledgement of parentage because plaintiff had represented that he was the only possible father and because he believed that to be true. Plaintiff filed an answer and brief in opposition to defendant’s motion. Plaintiff asserted that she informed defendant that there was a possibility that another man was the father, and that defendant merely “changed his mind” about being MW’s legal father. Plaintiff requested that the trial court require defendant to post $2,000 in bond to be paid to plaintiff if his motion was denied and hold him in contempt for committing perjury in his affidavit. On August 20, 2012, the trial court ordered “[t]hat the Friend of the Court shall hold all child support received on behalf of Defendant until further order of the Court.”

On October 5, 2012, at the hearing on defendant’s motion, defendant argued that his affidavit and the DNA test results were sufficient to set aside the acknowledgment of parentage. Plaintiff countered that the trial court could apply the equitable parent doctrine and require defendant to continue supporting the child. The trial court accepted that the acknowledgement of parentage was not correct and plaintiff agreed that the DNA test proved defendant was not MW’s biological father. The court however, would not revoke the acknowledgement of paternity absent defendant stating facts that constituted a mistake of fact, newly discovered evidence, fraud, misrepresentation, or duress under MCL 722.1437(2). The court explained that after compliance with MCL 722.1437(2), defendant needed to show that revoking the acknowledgement would not be against MW’s best interests. To address these contested issues, a bench trial was held on July 11, 2013 . . . .

The court denied defendant’s motion on the record at the end of the trial. The trial court believed that defendant’s lack of contact with MW after defendant and plaintiff separated “indicat[ed] that [defendant] had some knowledge that perhaps he wasn’t the father.” The court found the testimony of plaintiff, Beacroft and plaintiff’s mother to be more credible and indicated that defendant had doubts as to whether he was MW’s father. The trial court found “most persuasive” plaintiff’s testimony that defendant said “no matter what, she’s mine” which indicated to the court that “there was a question out there as to paternity.” Accordingly, the trial court concluded that plaintiff’s “version of events [was] more believable” and found that defendant had not met his burden in proving a mistake of fact.

On January 25, 2013, defendant filed a motion for a new trial or reconsideration under MCR 2.611(A)(1)(a), (e), (g), and MCR 2.612(C)(1)(f); a motion to disqualify the trial judge under MCR 2.003(C)(1)(a) and (b); and a motion to stay the order pending appeal under MCR 2.614. After hearing oral argument and allowing the parties to submit briefs regarding the application of the holding in Bay County Prosecutor v Nugent, 276 Mich App 183; 740 NW2d 678 (2007), that the presentation of unchallenged DNA evidence is sufficient to establish a mistake of fact, the trial court denied defendant’s motion for a new trial and for disqualification . . . .

The Court's analysis of whether the trial court committed plain error in denying defendant's motion to revoke his acknowledgement of parentage following a bench trial:

Defendant argues that the trial court erred in denying his motion to revoke his acknowledgement of paternity when he set forth sufficient facts to demonstrate a mistake of fact. We agree . . . .

In this case, the court received the DNA test results at the same time it received defendant’s affidavit. Neither plaintiff nor the trial court refuted the validity of the DNA results. The bench trial was held to test the sufficiency of the affidavit. Both the trial court’s oral opinion after trial and its written opinion on reconsideration denied defendant relief for failure to establish a mistake of fact. In its oral opinion, the trial court stated that the testimonial evidence presented at trial established that the defendant “had some knowledge that perhaps he wasn’t the father.” The court relied on several items of proof in reaching its’ conclusion. The court first highlighted the fact that defendant was not in MW’s life after his relationship with plaintiff ended. The court also credited the statements attributed to defendant by his mother and plaintiff. Defendant’s mother testified that defendant said, “I can’t go through with this.” Plaintiff testified that defendant said, “no matter what, she’s mine,” and that defendant did not seek a DNA test earlier because he said he “did not want to know then.” In its opinion for reconsideration, the court held that “DNA test results could not create a mistake of fact where Defendant was already doubtful of his biological fatherhood status . . . .”

Simply put, biology does not control either an acknowledgment of paternity or its revocation. Our Supreme Court has held that “an acknowledging father is not required to attest that he is the biological father.” The definition of an “acknowledged father” does not include any reference to a man being the biological father of a child. MCL 722.1433(1). A man is considered to be the natural father of a child born out of wedlock merely by joining the mother in completing and signing an acknowledgement of parentage before a notary. MCL 722.1003(1)- (2). The undisputed fact that a man is not a child’s biological father, as proven by clear and convincing evidence through blood, tissue or DNA, does not establish a mistake of fact. Biological evidence is rather a second and separate factor to be considered in the revocation of an acknowledgment of parentage after the trial court finds the moving party’s affidavit sufficient under MCL 722.1437(2).

There is no definition of “mistake of fact” in the RPA or the Acknowledgement of Parentage Act, MCL 722.1001 et seq. However, the Legislature is presumed to be aware of existing law when drafting new laws. AFSCME v Detroit, 267 Mich App 255, 269; 704 NW2d 712 (2005). Since there is no indication in the language of the RPA that the Legislature intended to alter the meaning of the term “mistake of fact” as understood in our law, it is appropriate, therefore, to look to the definition used in other cases. In Montgomery Ward & Co v Williams, a mistake of fact was defined as “a misunderstanding, misapprehension, error, fault or ignorance of a material fact, a belief that a certain fact exists when in truth and in fact it does not exist.” 330 Mich 275, 279; 47 NW2d 607 (1951). Since Montgomery Ward was decided in 1951, this Court has consistently cited the same definition. See Sentry Ins v Claims Co Int’l, Inc, 239 Mich App 443, 447; 608 NW2d 519 (2000); Bay County Prosecutor, 276 Mich App at 189-190; In re Luin Gyle Atterberry Revocable Trust, unpublished opinion per curiam of the Court of Appeals, issued October 11, 2012 (Docket No. 307850); and Zigmond Chiropractic, PC v AAA Michigan, unpublished opinion per curiam of the Court of Appeals, issued July 25, 2013 (Docket Nos. 300643, 304756, 305741, 306048, 306455, 306790).

In applying the definition from Montgomery Ward, we conclude that the trial court committed clear error in not finding that defendant had established a mistake of fact. A mistake of fact is “a belief that a certain fact exists when in truth and in fact it does not exist.” 330 Mich 275, 279. The trial court found that the defendant had doubt about whether he was the biological father when he signed the affidavit of parentage and that, therefore, proofs on mistake of fact failed. The law, however, does not require that a party have no knowledge that a fact might be untrue to create a mistake of fact. Instead, the party must act in part upon an erroneous belief. The trial court specifically rejected the idea that “a mistake of fact can be found where a belief is only partial or where doubt about that belief is suspect.” However, Helton and Bay County Prosecutor are inapposite.

We conclude that such evidence is sufficient under MCL 722.1437(2) to establish a mistake of fact . . . .