                          STATE OF MICHIGAN

                            COURT OF APPEALS



JOHN C. SPRENGER,                                                    FOR PUBLICATION
                                                                     October 23, 2014
               Plaintiff-Appellant/Cross-Appellee,                   9:15 a.m.

v                                                                    No. 317822
                                                                     Benzie Circuit Court
EMILY R. BICKLE,                                                     LC No. 12-009468-DP

               Defendant-Appellee/Cross-
               Appellant.


Before: MURPHY, C.J., and SAWYER and M.J. KELLY, JJ.

MURPHY, C.J.

        Plaintiff appeals as of right the trial court’s order granting defendant’s motion to dismiss
plaintiff’s complaint regarding paternity and denying plaintiff’s motion for genetic testing.
Defendant cross-appeals that same order with respect to the trial court’s denial of her request for
an award of attorney fees and costs as sanctions under MCR 2.114. We affirm.

        The paternity dispute between the parties, and more specifically the issue regarding
plaintiff’s standing to pursue a paternity complaint, was previously before this Court, resulting in
a published opinion in Sprenger v Bickle, 302 Mich App 400; 839 NW2d 59 (2013). The basic
factual premise of the litigation was previously set forth by this Court as follows:

               Plaintiff alleges that he is the biological father of a minor child born to
       defendant in November 2011, while she was lawfully married to someone else.
       Plaintiff and defendant were briefly engaged after defendant’s divorce from Adam
       Bickle in April 2011. Although the parties dispute whether defendant was
       pregnant before her divorce, mutual friends of the couple and members of both
       their families assert that within days of the divorce, defendant and plaintiff were
       sharing the news that they were expecting a child. The engagement between
       plaintiff and defendant ended; in August 2011, defendant remarried Adam and
       they were still married when she gave birth three months later.

              In December 2011, plaintiff filed a paternity action under the Paternity
       Act[, MCL 722.711 et seq.], alleging himself to be the biological father of the
       child and requesting the court to determine issues of legal and physical custody,
       parenting time, and child support. In response, defendant filed a motion to
       dismiss, asserting lack of standing, MCR 2.116(C)(5), and failure to state a claim
                                                -1-
       on which relief could be granted, MCR 2.116(C)(8). In an April 6, 2012 ruling,
       the circuit court determined that plaintiff did not have standing and granted
       defendant's motion to dismiss[.] [Id. at 402-403.]

        This Court affirmed, ruling that the trial court correctly determined that plaintiff lacked
standing under the Paternity Act. Id. at 404-405. The panel observed that “[u]nless and until
defendant and her husband ask a court to declare that the child was born out of wedlock, plaintiff
lacks standing to claim paternity under the Paternity Act.” Id. at 404. The Court concluded its
opinion by stating:

               [T]he lower court dismissed plaintiff's case for lack of standing just weeks
       before the Revocation of Paternity Act became effective. Plaintiff filed a separate
       lawsuit under this new act, and that case is still pending. We have not been called
       upon to decide whether plaintiff has standing under the Revocation of Paternity
       Act. Rather, this case concerns whether plaintiff has standing under the Paternity
       Act. The majority holds the trial court correctly determined that he does not. [Id.
       at 409.]

        We are now confronted with plaintiff’s new action regarding paternity brought pursuant
to the Revocation of Paternity Act (RPA), MCL 722.1431 et seq., which was dismissed on the
basis that plaintiff once again lacked standing. The RPA generally provides a court with
authority to “[d]etermine that a child was born out of wedlock” and to “[m]ake a determination
of paternity and enter an order of filiation[.]” MCL 722.1443(2)(c) and (d). MCL 722.1441
“governs an action to determine that a presumed father is not a child’s father,” MCL
722.1435(3), and this is the nature of plaintiff’s action in this case. Plaintiff’s new suit was
predicated and relied on MCL 722.1441(3)(a) and (c), which provide in pertinent part:

           (3) If a child has a presumed father, a court may determine that the child is
       born out of wedlock for the purpose of establishing the child's paternity if an
       action is filed by an alleged father and any of the following applies:

               (a) All of the following apply:

             (i) The alleged father did not know or have reason to know that the mother
       was married at the time of conception.

              (ii) The presumed father, the alleged father, and the child's mother at some
       time mutually and openly acknowledged a biological relationship between the
       alleged father and the child.

               (iii) The action is filed within 3 years after the child's birth. The
       requirement that an action be filed within 3 years after the child's birth does not
       apply to an action filed on or before 1 year after the effective date of this act.

               (iv) Either the court determines the child's paternity or the child's paternity
       will be established under the law of this state or another jurisdiction if the child is
       determined to be born out of wedlock.


                                                 -2-
                                                  ...

               (c) Both of the following apply:

               (i) The mother was not married at the time of conception.

              (ii) The action is filed within 3 years after the child's birth. The
       requirement that an action be filed within 3 years after the child's birth does not
       apply to an action filed on or before 1 year after the effective date of this act. [1.]

        As clearly evident when examining these provisions, MCL 722.1441(3)(a) is concerned
with situations in which the child at issue was conceived during wedlock, while MCL
722.1441(3)(c) regards situations wherein the child was not conceived during the marriage,
negating the need to supply the extra proofs required under subsection (3)(a). Because of
questions concerning the timing of conception here in relationship to entry of the divorce
judgment, plaintiff chose to cover both possibilities encompassed by the two subsections. The
trial court, following an evidentiary hearing, dismissed the new paternity action and denied
plaintiff’s motion for genetic testing. The court found that plaintiff had not demonstrated that
conception occurred after the divorce judgment was entered for purposes of MCL
722.1441(3)(c), and that plaintiff knew defendant was married at the time of conception for
purposes of MCL 722.1441(3)(a), if conception had actually occurred during the marriage. The
trial court expressed that “the medical testimony demonstrated that it was highly likely that the
defendant was married at the time of conception.” The trial court declined awarding defendant
any costs or attorney fees, given that the RPA was new and plaintiff made a “legitimate run”
under the RPA.

        On appeal, plaintiff challenges the trial court’s findings under MCL 722.1441(3)(a) and
(c). We initially note that plaintiff repeatedly speaks of the court’s alleged failure to draw all
inferences in a light most favorable to plaintiff; however, summary disposition principles are not
applicable here, as the court conducted an evidentiary hearing and made factual findings based
on the evidence presented. Under the RPA, a trial court is permitted to conduct an evidentiary
hearing “at its discretion when there are contested factual issues and a hearing would assist the
trial court in making an informed decision on the issue[s].” Parks v Parks, 304 Mich App 232,
239-240; 850 NW2d 595 (2014). “When reviewing a decision related to the [RPA], this Court
reviews the trial court's factual findings, if any, for clear error[,]” which occurs when this Court
is firmly and definitely convinced that a mistake was made. Glaubius v Glaubius, __ Mich App
__; __ NW2d __, issued July 15, 2014 (Docket No. 318750), slip op at 3, citing Parks, 304 Mich


1
  Plaintiff, as “a man who by his actions could have fathered the child,” is the “alleged father.”
MCL 722.1433(3). And Adam Bickle, as “a man who is presumed to be the child’s father by
virtue of his marriage to the child’s mother at the time of the child’s . . . birth,” is the “presumed
father.” MCL 722.1433(4). We also note that plaintiff additionally cited MCL 722.1437(2) in
his complaint in support of his assertion that he had standing. However, MCL 722.1437
addresses revocation of an acknowledgment of parentage, and plaintiff eventually stipulated to
the withdrawal of the claim, considering that no such document ever existed.


                                                  -3-
App at 237. Our review is de novo with respect to construction of the RPA. Glaubius, slip op at
3.

        With respect to the requirement in MCL 722.1441(3)(a)(i)(“alleged father did not know
or have reason to know that the mother was married at the time of conception”), we shall begin
with the assumption that the child was conceived during defendant’s marriage to Adam Bickle,
considering that conception during wedlock is a necessary attribute of proceeding under
subsection (3)(a). Plaintiff specifically testified that he knew defendant was married up until
April 8, 2011, when defendant’s divorce from Bickle was finalized. And plaintiff also conceded,
as did defendant, that plaintiff and defendant engaged in sexual relations before entry of the
divorce judgment. Therefore, keeping in mind for now our conception-timing assumption,
plaintiff necessarily failed to establish that he did not know that defendant was married at the
time of conception as required by MCL 722.1441(3)(a)(i). Indeed, the evidence conclusively
established the contrary.

        Plaintiff argues that because the date of conception could conceivably have been either
before or after the divorce was finalized, it could not be concluded that he knew or had reason to
know that defendant was married at the time of conception. This argument fails to appreciate the
structure of MCL 722.1441 and the relationship between and functions of subsections (3)(a) and
(c). Again, if conception occurred during wedlock, subsection (3)(a) needs to be further
examined and subsection (3)(c) is rendered irrelevant or unsupportable, whereas if conception
occurred outside of wedlock, subsection (3)(c) is triggered and subsection (3)(a) is rendered
irrelevant or unsupportable. In analyzing MCL 722.1441(3)(a), there needs to be a finding or an
assumption that conception occurred during the marriage. Under plaintiff’s faulty theory, any
time an uncertainty exists regarding whether conception occurred inside or outside wedlock,
subsection (3)(a)(i) would be established, which clearly was not the intent of the Legislature.
Here, if the child was conceived during the marriage, plaintiff was fully aware that defendant
was still married given his testimony. MCL 722.1441(3)(a) clearly envisions and applies to
circumstances in which a male has sexual intercourse with a married female, not knowing her to
be a married woman at the time, nor with adequate information such that he should have known
about her marital status. When there is uncertainty as to whether conception occurred before or
after entry of a divorce judgment, the better-framed question for purposes of analyzing MCL
722.1441(3)(a)(i) might involve asking whether the alleged father knew or had reason to know
that the child’s mother was married before her divorce was finalized. Plaintiff did not and
cannot establish standing under MCL 722.1441(3)(a) in light of his testimony that he knew
defendant was married prior to April 8, 2011, when the divorce was finalized.2


2
  Working together, subsections (3)(a) and (c) can provide an alleged father with standing even
where it is impossible to determine whether conception occurred before or after the finalization
of a divorce. In that circumstance, if the alleged father did not know or have reason to know that
a child’s mother was married before entry of a divorce judgment, and if the other requirements in
subsection (3)(a)(ii) through (iv) were satisfied, the alleged father could proceed, as either
subsection (3)(a) or (c) would have been definitively established, despite being unable to
pinpoint the specific subsection that was established.


                                               -4-
        With respect to the requirement in MCL 722.1441(3)(c)(i)(“mother was not married at
the time of conception”), we hold that the trial court did not clearly err in finding that plaintiff
failed to demonstrate that conception occurred outside of marriage.                 The evidence
overwhelmingly pointed to conception taking place during defendant’s marriage to Bickle. In
support of his argument regarding the applicability of MCL 722.1441(3)(c), plaintiff asserted
that a possibility existed, albeit a small one, that defendant conceived the child following the
granting of her divorce on April 8, 2011. The proffered evidence, however, made the likelihood
of this possibility extremely remote. Both defendant’s obstetrician and plaintiff’s expert, a
physician and fertility specialist, concurred that the most likely time of conception was between
March 27, 2011, and April 3, 2011. Indeed, plaintiff’s own expert indicated that the chances
were “95 to 97 percent” that conception occurred during that pre-divorce-judgment timeframe.
Defendant’s obstetrician opined that the potential for conception to have occurred after April 8,
2011, was in the range of “less than 1 percent.” Plaintiff’s expert expressed that the chances that
defendant conceived on or after April 8, 2011, was “1 to 2 percent.”3

       Additionally, there was testimony indicating that defendant used an over-the-counter
pregnancy test on either April 11, 2011, or April 13, 2011, which revealed a positive result. And
both defendant’s obstetrician and plaintiff’s expert stated that such tests, while useful and
accurate, would not register, on either of the dates identified for the test, a conception that
occurred between April 8 and April 10, 2011.

        On this issue, defendant also presents a judicial estoppel argument. In the first appeal,
plaintiff emphatically took the position that defendant was pregnant and that the child had been
conceived prior to the finalization of the divorce.4 And plaintiff conceded at the evidentiary
hearing in the present case that he had taken such a position in the first action. An argument
could be made that plaintiff is judicially estopped from taking a position here that is wholly
inconsistent with his unequivocal position in the prior case that defendant was pregnant before
the divorce was finalized. See Wells Fargo Bank, NA v Null, 304 Mich App 508, 537; 847
NW2d 657 (2014) (discussing features of judicial estoppel). Then again, defendant’s own
position in the present case on the conception-timing issue is at odds with her stance in the
previous case. We decline to take into consideration the doctrine of judicial estoppel.




3
    We note that there is no dispute that the child was born premature.
4
  The first panel, while not specifically deciding the issue, apparently leaned toward agreeing
with plaintiff’s view that conception had occurred during the marriage given its comment, after
acknowledging a factual dispute on the matter, that “mutual friends of the couple and members
of both their families assert[ed] that within days of the divorce, defendant and plaintiff were
sharing the news that they were expecting a child.” Sprenger, 302 Mich App at 402.


                                                  -5-
         On the basis of the testimony alone, plaintiff’s argument under MCL 722.1441(3)(c)
fails, as there was effectively no supporting evidence. The trial court did not commit error in
rejecting plaintiff’s claim under subsection (3)(c).5

        Plaintiff next contends that the trial court erred in sustaining an objection by defendant
with respect to plaintiff’s attempt to elicit a response from defendant as to whether Adam Bickle
was the biological father of the child. Plaintiff contends that the question was relevant in regards
to establishing, as required by MCL 722.1441(3)(a)(ii), that “[t]he presumed father, the alleged
father, and the child's mother at some time mutually and openly acknowledged a biological
relationship between the alleged father and the child.” Given our holding that plaintiff failed to
establish MCL 722.1441(3)(a)(i) as to knowledge of whether defendant was married at the time
of conception, and considering that subsections (3)(a)(i) through (iv) all had to be established to
obtain standing, any error in excluding the testimony was entirely harmless. MCR 2.613(A).

        Finally, we disagree with defendant on her cross-appeal that the trial court erred in failing
to award her attorney fees and costs as sanctions under MCR 2.114. With respect to a request for
sanctions under MCR 2.114, we review for an abuse of discretion the trial court’s ruling on the
request. Edge v Edge, 299 Mich App 121, 127; 829 NW2d 276 (2012). However, the court’s
underlying factual findings, including a finding of frivolousness, are reviewed for clear error.
Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002); Edge, 299 Mich App at 127.
Issues regarding the interpretation of MCR 2.114 are reviewed de novo on appeal. Id.




5
  We note that the trial court concluded that plaintiff had not presented clear and convincing
evidence in support of his positions, which standard defendant maintains reflects the proper
burden of proof. Defendant, and evidently the trial court, relied on MCL 722.1445, which
provides that “[i]f an action is brought by an alleged father who proves by clear and convincing
evidence that he is the child's father, the court may make a determination of paternity and enter
an order of filiation[].” However, this burden of proof appears to only concern the actual
establishment of paternity, without speaking to the underlying prerequisite of standing as
governed by MCL 722.1441. MCL 722.1441 does not set forth any standard regarding the
burden of proof. In Parks, 304 Mich App at 239-240, this Court, in determining whether the
RPA mandated an evidentiary hearing or whether it was discretionary where the RPA did not
even mention the word “hearing,” made an analogy to the process involved in addressing a
motion to change custody and the threshold issue of proper cause or change of circumstances,
wherein an evidentiary hearing is only necessary when contested factual issues exist that must be
resolved to make an informed decision. In the child custody context relative to the threshold
issue, a preponderance of the evidence standard applies. Vodvarka v Grasmeyer, 259 Mich App
499, 509; 675 NW2d 847 (2003). Ultimately, we need not decide the proper burden of proof for
purposes of MCL 722.1441, given that plaintiff’s claims under MCL 722.1441(3)(a) and (c)
were not supported by clear and convincing evidence, nor a preponderance of the evidence.
Rather, the evidence overwhelmingly supported defendant’s positions.


                                                -6-
        MCR 2.114 concerns the execution of court documents and applies to all pleadings,
motions, affidavits, and other papers mandated by the court rules. MCR 2.114(A). The court
rule provides in pertinent part:

              (D) The signature of an attorney or party, whether or not the party is
       represented by an attorney, constitutes a certification by the signer that

               (1) he or she has read the document;

               (2) to the best of his or her knowledge, information, and belief formed
       after reasonable inquiry, the document is well grounded in fact and is warranted
       by existing law or a good-faith argument for the extension, modification, or
       reversal of existing law; and

               (3) the document is not interposed for any improper purpose, such as to
       harass or to cause unnecessary delay or needless increase in the cost of litigation.


              (E) If a document is signed in violation of this rule, the court, on the
       motion of a party or on its own initiative, shall impose upon the person who
       signed it, a represented party, or both, an appropriate sanction, which may include
       an order to pay to the other party or parties the amount of the reasonable expenses
       incurred because of the filing of the document, including reasonable attorney fees.
       The court may not assess punitive damages. [6.]

        We decline to reverse the trial court’s ruling that denied defendant’s request for
sanctions. The RPA is newer legislation that has not yet been subjected to much construction by
the appellate courts, and, as a matter of first impression, our published opinion today sets forth
an interpretation of the RPA as applied to unique facts in which conception fell extremely close
to the date of divorce. Although we reject plaintiff’s legal position, we are not prepared to
conclude that the complaint was unwarranted by existing law, nor that the complaint was
interposed for an improper purpose, such as to harass defendant, cause unnecessary delay, or to
needlessly increase litigation costs. MCR 2.114(D); Kitchen, 465 Mich at 663 (“Not every error


6
  The question whether a claim is frivolous is evaluated at the time the claim was raised. In re
Costs & Attorney Fees, 250 Mich App 89, 94; 645 NW2d 697 (2002). The objective of
sanctions “is to deter parties and attorneys from filing documents or asserting claims and
defenses that have not been sufficiently investigated and researched or that are intended to serve
an improper purpose.” FMB-First Mich Bank v Bailey, 232 Mich App 711, 723; 591 NW2d 676
(1998). Sanction provisions should not be construed in a manner that has a chilling effect on
advocacy, that prevents a party from bringing a difficult case, or that penalizes a party whose
claim initially appears viable but later becomes unpersuasive. Louya v William Beaumont Hosp,
190 Mich App 151, 163; 475 NW2d 434 (1991).




                                               -7-
in legal analysis constitutes a frivolous position” and “merely because this Court concludes that a
legal position asserted by a party should be rejected does not mean that the party was acting
frivolously in advocating its position[,]” especially in regard to legal issues that are complex and
not easily resolved.). Rather than filing the complaint for an improper purpose, plaintiff appears
to have been solely motivated by a desire to attain the rights of a parent, as alleged.
Accordingly, we affirm the trial court’s denial of sanctions.

       Affirmed. Neither party having fully prevailed on appeal, we decline to award taxable
costs under MCR 7.219.



                                                             /s/ William B. Murphy
                                                             /s/ David H. Sawyer
                                                             /s/ Michael J. Kelly




                                                -8-
