STATE OF MICHIGAN
COURT OF APPEALS
NICHOLAS DAVID BURNETT, UNPUBLISHED
December 7, 2017
Plaintiff-Appellee,
v No. 338618
Genesee Circuit Court
TRACY LYNN AHOLA and DEREK AHOLA, LC No. 14-312262-DP
Defendants-Appellants.
Before: METER, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
In this child custody dispute, defendants appeal as of right a May 15, 2017, trial court
order wherein the trial court dismissed defendants’ motion for relief from a November 3, 2015,
order of filiation, establishing plaintiff as the legal and biological father of JDA (“ROPA
judgment”). In the same May 15, 2017 order, the trial court granted summary disposition in
favor of plaintiff. For the reasons set forth in this opinion, we affirm.
I. FACTS
This case arose out of the paternity and custody dispute between defendants, a married
couple, and plaintiff regarding the minor child JDA (d/o/b June 18, 2014). JDA was conceived
while defendants were married and while defendant Tracy Ahola was engaged in an extramarital
affair with plaintiff. Genetic testing established that JDA was not the biological child of
defendant Derek Ahola.
Plaintiff filed his claim pursuant to the Revocation of Paternity Act (ROPA), MCL
722.1431 et seq., which allows an “alleged father” to challenge the paternity of a “presumed
father” when the “alleged father” “did not know or have reason to know that the mother was
married at the time of conception[.]” MCL 722.1441(3)(a). On November 3, 2015, the trial
court entered an order of filiation “establishing [plaintiff] as the biological and legal father of
defendant Travy Lynn Ahola’s son, JDA” (hereinafter “ROPA judgement”). Burnett v Ahola,
unpublished per curiam opinion of the Court of Appeals, issued May 26, 2016 (Docket No.
330311).
Defendants appealed the ROPA judgment to this Court. While that appeal was pending,
however, the case before the trial court continued. The trial court entered a series of orders
regarding parenting time and the court appointed a lawyer guardian ad litem (L-GAL).
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Specifically, the court entered parenting time orders on April 15, 2016 and May 16, 2016; the
orders gradually increased plaintiff’s parenting time with JDA and plaintiff eventually had
unsupervised parenting time with JDA. In the meantime, on May 26, 2016, this Court affirmed
the trial court’s ROPA judgment. Burnett, unpub op at 5. In that appeal, one of the central
issues was whether plaintiff had a reasonable belief that Tracy was unmarried or divorced at the
time JDA was conceived. Id. at 1-2. This Court held that “the trial court properly considered the
evidence and concluded that [plaintiff] did not know, or have reason to know, that Tracy was
married at the time of JDA’s conception, and it made its credibility determinations after careful
consideration of all of the evidence presented.” Id. at 2.
Subsequently, the trial court entered another parenting time order on July 6, 2016,
increasing plaintiff’s parenting time with JDA. Then, on September 30, 2016, the parties entered
into a stipulated custody and parenting time agreement. That stipulated order provided that
plaintiff and Tracy would share legal and physical custody of JDA.
Less than one month later, on October 24, 2016, defendants moved the trial court for
relief from the trial court’s ROPA judgment. Defendants argued that during the ROPA bench
trial, plaintiff committed fraud or misconduct against an adverse party pursuant to MCR
2.612(C)(1)(c), and fraud on the court itself pursuant to MCR 2.612(3). Defendants relied on
recorded conversations between Tracy and plaintiff, which allegedly contained statements from
plaintiff that he lied and got witnesses to lie on his behalf at trial. Defendants provided
transcribed excerpts from the conversations, which defendants alleged occurred on June 1, 2016,
June 8, 2016, and June 27, 2016. In light of the recordings, defendants requested that the trial
court vacate its ROPA judgment and order, dismiss the case with prejudice, and enter an order
for plaintiff to show cause why he should not be held in contempt of court and have his case
referred to the Michigan State Police.
Plaintiff responded, arguing that the recorded statements were misleading and out of
context, and that he had only said those things in an attempt to hurt Tracy. He stated that he was
not telling the truth, and the claims he made in the recordings were mere “bluster[.]” Plaintiff
also noted that those conversations took place well before the case was referred to mediation and
ultimately settled in the stipulated order for custody and parenting time.
Defendants then moved to suspend parenting time and any further custody decisions
pending the trial court’s ruling on the motion for relief from judgment. Plaintiff then moved for
summary disposition of defendants’ motion for relief from judgment. Plaintiff argued that
defendants knew about the recordings and plaintiff’s alleged fraud when they agreed to settle the
case and stipulate to shared legal and physical custody and parenting time with plaintiff. In so
doing, defendants agreed to have joint legal and physical custody while they were in possession
of alleged proof that plaintiff lied in order to gain paternity rights. Plaintiff argued that
defendants’ actions amounted to a waiver of that claim. Alternatively, plaintiff argued that
defendants should be judicially estopped from making the arguments because they allowed the
custody proceedings to go so far without coming forward with their evidence.
After denying the motion to suspend parenting time, the trial court heard oral arguments
on defendants’ motion for summary disposition on December 19, 2016. After hearing the same
arguments that the parties had made in their briefs, the trial court took the issue under
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advisement. By February 23, 2017, the trial court still had not issued an opinion or order on the
matter. That day, however, the trial court held another hearing on the issue. Defendants stated
that there was a fact issue to investigate regarding whether plaintiff actually lied and obtained
false testimony from others. Plaintiff argued that the content of the recordings was irrelevant,
considering defendants knew of the alleged fraud when they signed the stipulated custody order,
thereby waiving any fraud allegations.
The trial court then announced its decision on the record. The trial court held that there
was no question of fact that defendants knew of plaintiff’s alleged fraud in June 2016.
Additionally, there was no question of fact that the consent custody order was reached after
defendants had that knowledge, in September 2016. Therefore, the trial court held that there was
no issue of fact that defendants waived their claims of fraud and the court denied their motion for
relief from judgment.
Subsequently, defendants filed several more motions. Defendants moved to make the
audio recordings part of the record and moved to suspend parenting time pending this appeal. In
addition, Derek moved for reconsideration, arguing that he did not sign the stipulated custody
order and therefore he could not have waived the fraud issue. The trial court denied defendants’
motions.
Despite having announced its decision to grant plaintiff’s motion for summary
disposition and dismissing defendants’ motion for relief from judgment on the record during the
February 23, 2017 hearing, the trial court did not enter a written order memorializing the
decision until May 15, 2017. Three days later, on May 18, 2017, the trial court entered an order
denying defendants’ motion for reconsideration. This appeal ensued.1
B. ANALYSIS
I. JURISDICTION
Plaintiff argues that this Court does not have jurisdiction to address defendants’ appeal by
right because the trial court’s order denying the motion for relief from the ROPA judgment was
not a “final order” as defined in MCR 7.202(6)(a)(iii).
“Whether this Court has jurisdiction to hear an appeal is an issue that we review de
novo.” Wardell v Hincka, 297 Mich App 127, 131; 822 NW2d 278 (2012).
The issue presented is whether this Court has jurisdiction to hear this appeal as of right.
This Court “has jurisdiction of an appeal of right filed by an aggrieved party from . . . [a] final
judgment or final order of the circuit court[.]” MCR 7.203(A)(1). For purposes of the court rule,
in a domestic relations action, a “final judgment” or “final order” includes “a postjudgment order
1
This Court denied defendants’ motion to stay the trial court proceedings pending the outcome
of this appeal. Burnett v Ahola, unpublished order of the Court of Appeals, entered July 11,
2017 (Docket No. 338618).
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affecting the custody of a minor.” MCR 7.202(6)(a)(iii). Under MCR 7.202(6)(a)(iii), “an order
need not expressly indicate that it is a custody determination[.]” Madson v Jaso, 317 Mich App
52, 60; 893 NW2d 132 (2016). Rather, “an order affecting custody includes one in which the
trial court’s ruling has an effect on where the child will live.” Id. at 61-62. Moreover, MCR
7.202(6)(a)(iii), is limited to post-judgment orders affecting the physical custody of a minor. Id.
at 65-66.
The ultimate effect of the order in question was to dismiss defendants’ motion for relief
from judgment of the trial court’s opinion and order declaring plaintiff to be the legal and
biological father of JDA. In other words, had the trial court granted defendants’ motion for relief
from judgment, plaintiff would have lost all parental rights to JDA, because the trial court would
have vacated its order establishing plaintiff’s rights. In so doing, the order would have resulted
in plaintiff losing his shared legal and physical custody of JDA. At the time the trial court
entered the order dismissing defendants’ motion, JDA was spending six days per every two
weeks with plaintiff. Had the trial court granted that motion, JDA would have been spending no
time with plaintiff. Therefore, because JDA’s place of living would have significantly changed
if the motion had been granted, the trial court’s order was one that affected the custody of a
minor pursuant to MCR 7.202(6)(a)(iii), and as such, was appealable as of right. Madson, 317
Mich App at 60-61. This Court therefore has jurisdiction to hear this appeal as of right. MCR
7.203(A)(1); MCR 7.202(6)(a)(iii).
II. RELIEF FROM JUDGEMENT
Defendants argue that the trial court erred in granting summary disposition and in
dismissing their motion for relief from judgment.
Initially, we note that the trial court erroneously granted summary disposition in this case.
“[A] motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a
claim[.]” Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010) (emphasis added).
Here, the motion for relief from judgment was not a claim, but rather a motion requesting relief
from a judgment. Instead of simply responding to the merits of the motion, plaintiff filed a
motion for summary disposition. Consequently, it was technically improper for the trial court to
consider plaintiff’s motion for summary disposition of defendants’ motion. However, this is not
grounds for reversal where, as discussed below, the trial court did not err in denying defendants’
motion for relief from judgment. See Gleason v Mich Dep’t of Treasury, 256 Mich App 1, 3;
662 NW2d 822 (2003) (“[a] trial court’s ruling may be upheld on appeal where the right result
issued, albeit for the wrong reason.”).
Defendants also argue that the trial court abused its discretion in dismissing their motion
for relief from judgment by finding that they had waived their argument. We disagree.
“[T]his Court reviews for an abuse of discretion a trial court’s ruling on a motion for
relief from judgment.” Dep’t of Environmental Quality v Waterous Co, 279 Mich App 346, 364;
760 NW2d 856 (2008). “An abuse of discretion occurs when the result falls outside the range of
principled outcomes.” Cassidy v Cassidy, 318 Mich App 463, 479; 899 NW2d 65 (2017). “This
Court reviews for clear error a trial court’s factual determinations regarding a waiver claim[.]”
Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144, 163; 677 NW2d 874
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(2003). “[T]he trial court’s ultimate decision concerning whether those facts show a waiver is a
question of law reviewed de novo.” Allard v Allard (On Remand), 318 Mich App 583, 593; 899
NW2d 420 (2017) (internal quotations omitted).
Pursuant to MCR 2.612(C)(1)(c), “[o]n motion and on just terms, the court may relieve a
party or the legal representative of a party from a final judgment, order, or proceeding [for] . . .
[f]raud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”
Perjury is a form of “intrinsic fraud” pursuant to MCR 2.612(C). Daoud v De Leau, 455 Mich
181, 203; 565 NW2d 639 (1997).
In this case, the trial court denied defendants’ motion for relief from judgment after
finding that defendants waived their argument. “Waiver is the voluntary and intentional
relinquishment of a known right.” Varran v Granneman (On Remand), 312 Mich App 591, 623;
880 NW2d 242 (2015). “An ‘implied waiver’ is defined as [a] waiver evidenced by a party’s
decisive, unequivocal conduct reasonably inferring the intent to waive.” Reed Estate v Reed, 293
Mich App 168, 177; 810 NW2d 284 (2011).
Initially, we reject defendants’ arguments that the trial court erred in not accepting copies
of the transcripts of the recordings as evidence and in refusing to hold an evidentiary hearing on
the issues of plaintiff’s alleged fraud and defendants’ waiver. Contrary to this argument, a
highlighted copy of the transcripts of the recordings was included in the lower court file.
Furthermore, irrespective of whether additional transcripts were filed, the trial court was aware
of the nature of the alleged fraud, and defendants’ argument that the trial court was required to
hold an evidentiary hearing is without merit. Although defendants are correct that “[w]aiver is a
matter of fact to be shown by evidence[,]” the trial court did not err in determining the issue
without holding an evidentiary hearing when the material facts were not disputed. Reed Estate,
293 Mich App at 177 (quotation marks omitted).
Here, the relevant facts in the instant case, as discussed, were that defendants knew of the
alleged fraud in June 2016, agreed to expand plaintiff’s parenting time in July 2016, consented to
plaintiff having shared legal and physical custody and equal parenting time in September 2016,
and only then moving for relief from judgment based on plaintiff’s alleged fraud in late October
2016. None of those facts were in any way disputed. Instead, the dispute between the parties
was on the legal effect of those facts. Consequently, the trial court did not abuse its discretion
when it determined that there were no contested facts that required an evidentiary hearing. Id.
Similarly, the trial court did not err in concluding that defendants waived the fraud issue.
At the ROPA hearing, the trial court heard testimony from various parties, including from
plaintiff, where plaintiff testified that he believed Tracy to be divorced at the time of conception.
Defendants appealed that decision to this Court and this Court affirmed on May 26, 2016.
Throughout the month of June 2016, Tracy recorded plaintiff making statements that, if true,
would establish that plaintiff committed perjury during the bench trial and obtained perjured
testimony from others as well. It is undisputed that defendants knew of those recordings in June
2016. At that time, defendants could have immediately raised the fraud issue or moved for relief
from judgment pursuant to MCR 2.612(C)(1)(c), or they could have moved this Court to
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reconsider its decision in light of the alleged newly discovered evidence pursuant to MCR
7.215(I).
Instead of pursuing relief or raising the fraud issue, defendants twice stipulated to, or did
not raise a fraud objection to orders allowing plaintiff to take a more active and expanded role in
JDA’s life. Indeed, on July 6, 2016, the court entered a stipulated parenting time order allowing
plaintiff to have three, nine-hour visits for the first week of July, and two, nine-hour visits during
the second week of July and the entire second weekend of July, from Friday at 11:00 a.m. to
Sunday at 8:00 p.m. While still in possession of the recordings, defendants proceeded to submit
to mediation regarding custody and parenting time issues. Then, on September 30, 2016, the
trial court entered a stipulated custody and parenting time order, which provided plaintiff with
shared legal and physical custody of JDA. The order also provided that plaintiff would have
overnight parenting time sessions with JDA for five nights every two weeks from the time of the
order to January 1, 2017. From that date to July 1, 2017, plaintiff would get six overnight visits
every two weeks. After July 1, 2017, plaintiff’s time with JDA would be equal to defendants’
time. When these orders were entered, defendants did not object or preserve the issue of fraud.
Nearly one month after the entry of that order, and more than four months after
discovering plaintiff’s alleged perjury, on October 24, 2016, defendants moved for relief from
the ROPA judgment pursuant to MCR 2.612(C)(1)(c). Defendants motion was timely pursuant
to MCR 2.612(C)(2) because it was filed within one year of the judgment from which they
sought relief. However, plaintiff argued, and the trial court agreed, that defendants had waived
the issue by their actions after discovering the alleged perjury and before moving for relief from
judgment.
The trial court did not err in concluding that the consent judgment amounted to a waiver
of the perjury issue. Here, Tracy’s signing of the agreement and Derek’s failure to object to the
agreement to share legal and physical custody with equal parenting time was conduct that
inferred defendants’ intent to waive their challenge to the ROPA order based on plaintiff’s
alleged perjury. The outcome of the ROPA trial was to establish plaintiff as the biological and
legal father of JDA. Subsequently, plaintiff’s parental rights established by the ROPA order led
to plaintiff seeking custody and parenting time. Defendants were aware that, without that ROPA
order, plaintiff did not have any right to custody or parenting time with JDA. Indeed, defendants
appealed the ROPA order to this Court by arguing, amongst other things, that the trial court erred
in determining that plaintiff did not know or have reason to know that Tracy was married at the
time of conception. Stated differently, defendants were well aware that, if there was proof that
plaintiff did actually know that Tracy was married at the time of conception, then plaintiff’s
ROPA claim would have failed.
Throughout the month of June, defendants accumulated evidence that they believed
would ultimately lead to the reversal of the ROPA order and remove any parental rights held by
plaintiff. Despite being in control of that information, defendants consented to increased
parenting time for plaintiff in July 2016, and then agreed, or did not object to shared legal and
physical custody with equal parenting time in September 2016. Defendants “acts and
declarations manifest[ed] an intent and purpose not to claim the[ir] supposed advantage[.]” Reed
Estate, 293 Mich App at 177 (quotation marks and citations omitted). Indeed, in settling the
issue of custody and expanding plaintiff’s role in JDA’s life, defendants’ actions showed that
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they were prepared to move on from the issue of paternity and begin working toward a
coparenting relationship. The consent custody order and consent parenting time order did not
contain any indication that defendants wanted to preserve a claim of fraud for the future, nor did
it make any mention that they still intended to assert that plaintiff was not JDA’s legal father.
And, although Derek never signed the order, he did not raise an objection or make any effort to
preserve the issue at the time the order was entered. Instead, defendants conduct was “decisive,
unequivocal conduct reasonably inferring the intent to waive” the issue of perjury. Reed Estate,
293 Mich App at 177.
III. MOTION FOR RECONSIDERATION
Defendants argue that the trial court abused its discretion in denying their motions for
reconsideration because Derek did not sign the consent custody order and therefore could not
have waived his right to argue plaintiff’s fraud.
“This Court reviews a trial court’s decision to deny a motion for reconsideration for an
abuse of discretion.” American Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App
695, 709; 609 NW2d 607 (2000). “A trial court abuses its discretion when its decision falls
outside the range of reasonable and principled outcomes.” In re Foster Attorney Fees, 317 Mich
App 372, 375; 894 NW2d 718 (2016) (internal quotations omitted).
In order to be entitled to reconsideration, “[t]he moving party must demonstrate a
palpable error by which the court and the parties have been misled and show that a different
disposition of the motion must result from correction of the error.” MCR 2.119(F)(3). A trial
court has discretion regarding whether to grant a motion for reconsideration, and this Court will
not typically find an abuse of discretion when the argument relied on by the moving party could
have been presented and argued during the original decision. Churchman v Rickerson, 240 Mich
App 223, 233; 611 NW2d 333 (2000).
In this case, as discussed above, the trial court did not abuse its discretion in denying the
motion for relief from judgment and defendants have not shown a “palpable error by which the
court and the parties have been misled” or that a different result of the motion must result from
the correction of that error. While Derek did not sign the consent custody order, at the time the
order was entered, defendants were in possession of information regarding the alleged fraud and
Derek did not raise that issue or raise any objection to preserve the fraud issue. Accordingly, the
trial court did not err in finding that both defendants waived the issue of fraud and the trial court
did not abuse its discretion in denying the motion for reconsideration. Id.
In sum, the trial court did not abuse its discretion in denying defendants’ motion for relief
from judgment and their motion for reconsideration.2
2
Given our resolution of this issue, we need not address defendants’ arguments with respect to
judicial estoppel. Furthermore, even if we were to assume that defendants’ argument regarding
the clerk allegedly removing fraud transcripts from the record in violation of MCR 2.119(H),
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Affirmed. No costs awarded. MCR 7.219(A).
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
given our conclusion that the trial court properly denied the motion for relief from judgment and
the motion for reconsideration, any error with respect to the transcripts does not warrant reversal
or other relief.
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