                          STATE OF MICHIGAN

                           COURT OF APPEALS



SHAE KEVIN GRAHAM,                                                  FOR PUBLICATION
                                                                    June 16, 2015
               Plaintiff-Appellee,                                  9:05 a.m.

v                                                                   No. 318487
                                                                    Oakland Circuit Court
SHAREA FOSTER,                                                      LC No. 2013-808521-DP

               Defendant-Appellant.


Before: CAVANAGH, P.J., and METER and SHAPIRO, JJ.

METER, J.

       In this action to revoke paternity, defendant appeals by leave granted a circuit court order
denying her motion for summary disposition. We affirm the denial of summary disposition but
conclude that defendant’s husband, Christopher Foster (hereinafter “Foster”), is a necessary
party to plaintiff’s lawsuit. We therefore remand this case for the addition of Foster as a
defendant.

        Defendant and Foster were married on September 18, 2004, and they continue to be
married. In the summer of 2008, defendant and plaintiff engaged in an extramarital affair.
Plaintiff alleged that on January 1, 2009, he and defendant conceived a child. Defendant’s third
child, Blake Foster, was born on September 23, 2009. Plaintiff filed an affidavit averring that he
was present at Blake’s birth and cut the umbilical cord during the delivery. Despite the
foregoing, Foster was listed as the father on the child’s birth certificate.

        On September 22, 2010, plaintiff filed a complaint under the Paternity Act, MCL 722.711
et seq., in which he alleged that he was Blake’s biological father. The circuit court dismissed
this action based on a lack of standing. The legislature subsequently enacted the Revocation of
Paternity Act (RPA), MCL 722.1431 et seq. The RPA, among other things, confers standing on
an “alleged father”1 to seek a determination that a child was born out of wedlock, even though
the mother was married at the time of the conception or birth. MCL 722.1441(3); MCL
722.1433(e). On May 15, 2013, plaintiff filed a complaint under the RPA. Once again, plaintiff


1
  The RPA defines an “alleged father” as “a man who by his actions could have fathered the
child.” MCL 722.1433(c).


                                                -1-
alleged that he was Blake’s biological father. Plaintiff sought (1) an order determining his
paternity of the child, (2) an order of filiation naming him as the child’s father, (3) an order
providing for joint legal and physical custody of the child, and (4) an order allowing reasonable
parenting time. Only defendant was named as a defendant in the complaint.

        In lieu of filing an answer, on June 14, 2013, defendant filed a motion for summary
disposition under MCR 2.116(C)(8) and (10). She argued, in part, that plaintiff could not satisfy
the factual requirements of MCL 722.1441(3)(a), which states:

               (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.

Defendant claimed that plaintiff knew at all pertinent times that she and Foster were married.
Defendant also claimed that Foster was a necessary party to the action and that, because the
statute of limitations in MCL 722.1441(3)(a)(iii) had expired, plaintiff could no longer add
Foster to the proceedings. Defendant asserted that the case had to be dismissed based on the
failure to add a necessary party.

       In response to defendant’s motion for summary disposition, plaintiff argued, in part, that
there was nothing in the plain language of the RPA requiring that plaintiff name Foster as a
defendant. In the alternative, plaintiff argued that he should be granted leave to amend the
complaint to add Foster as a defendant.

        At a hearing on August 21, 2013, the circuit court found that the RPA did not require
plaintiff to name Foster as a defendant and that Foster was not a necessary party to the lawsuit.
It further found that genuine issues of fact existed with respect to whether plaintiff could satisfy




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the necessary elements of his claim under the RPA.2 Accordingly, the circuit court denied
defendant’s motion for summary disposition; subsequently, the court also denied defendant’s
motion for reconsideration.

        We review de novo a trial court’s decision regarding a motion for summary disposition.
Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We also review de novo
issues of statutory and court-rule construction. Id.; Valeo Switches & Detection Systems, Inc v
Emcom, Inc, 272 Mich App 309, 311; 725 NW2d 364 (2006).

          MCR 2.205 addresses the necessary joinder of parties and provides, in pertinent part:

                  (A) Necessary Joinder. Subject to the provisions of subrule (B)
          [discussing the effect of the failure to join] and MCR 3.501 [discussing class
          actions], persons having such interests in the subject matter of an action that their
          presence in the action is essential to permit the court to render complete relief
          must be made parties and aligned as plaintiffs or defendants in accordance with
          their respective interests.

This Court has held that a party is necessary to an action if that party “has an interest of such a
nature that a final decree cannot be made without affecting that interest, or leaving the
controversy in such a condition that its final determination may be wholly inconsistent with
equity and good conscience.” Mather Investors, LLC v Larson, 271 Mich App 254, 257-258;
720 NW2d 575 (2006) (citations and quotation marks omitted). In Mather, id. at 259, this Court
noted that the Uniform Fraudulent Transfer Act (UFTA), MCL 566.31 et seq., indicates that a
transferor must be “liable for [a] claim” in order to be considered a “debtor” under the act. The
Court concluded that the person at issue (the transferor/alleged debtor) was an essential party in
that case because her liability had not been adjudicated and was vital to the plaintiff’s claim.
Mather, 271 Mich App at 255, 259-260. The Court noted that “unless the transferor’s liability
has already been determined in a proceeding that afforded the transferor a meaningful
opportunity to defend, the transferor’s ‘presence in the action is essential to permit the court to
render complete relief . . . .’” Id. at 259-260, quoting MCR 2.205(A).

         Similar to the transferor’s interests in Mather, Foster has interests that would not be
adequately addressed if he were not a party to plaintiff’s lawsuit under the RPA. Under the
RPA, a “[p]resumed father” is “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 conception or birth.” MCL 722.1433(e).
This Court has determined that under the Paternity Act, the custodial rights of a presumed father
(i.e., of a man presumed to be a child’s father because of his marriage to the child’s mother) are
significant and warrant due process protection. Aichele v Hodge, 259 Mich App 146, 164; 673
NW2d 452 (2003). “There is an important liberty interest in the development of the parent-child
relationship.” Id. The RPA’s definition of a “presumed father” clearly implies that the
presumed father is afforded the legal right of parenthood, unless that presumption is rebutted in a
successful action under the act. See, e.g., Grimes v Van Hook-Williams, 302 Mich App 521,


2
    We note that defendant does not take issue with this aspect of the circuit court’s ruling.


                                                   -3-
527; 839 NW2d 237 (2013) (the RPA governs actions to determine that a presumed father is not
a child’s father). A successful action by plaintiff would strip Foster of interests that must not be
set aside without Foster’s fair chance to defend those interests. See, e.g., Mather, 271 Mich App
at 257-258, 259-260. We thus find that Foster is a necessary party under MCR 2.205(A).

        Defendant argues that plaintiff’s failure to add a necessary party (Foster) within the
limitations period bars his lawsuit. We disagree. Generally, if a defendant is brought into a
lawsuit for the first time upon the filing of an amended complaint, the filing of the amendment
constitutes the commencement of the action with regard to the new defendant. Amer v Clarence
A Durbin Assoc, Inc, 87 Mich App 62, 65; 273 NW2d 588 (1978). However, an exception to
that rule is that an additional defendant may be brought in after the expiration of the limitations
period if the new party is a necessary party. Id.; O’Keefe v Clark Equip Co, 106 Mich App 23,
26-27; 307 NW2d 343 (1981).

        In O’Keefe, id. at 24-25, 27, this Court was confronted with unique circumstances where
the plaintiff had sued a fictitious entity in order to satisfy the statute of limitations and later
added the proper defendant after the limitations period had ended. This Court held that a
plaintiff cannot amend his complaint to add another party when he first sued a fictitious entity in
order to satisfy the statute of limitations. Id. at 27. Such is not the situation in the present case.
Instead, plaintiff properly named defendant in his timely-filed lawsuit, and now Foster will
merely be added as a necessary party. In this circumstance, the statute of limitations does not
bar plaintiff’s claim. Amer, 87 Mich App at 65. As noted, plaintiff did request, in the circuit
court, that he be allowed to amend his complaint by adding Foster as a defendant.
MCR 2.118(A)(2) allows for the amendment of pleadings “when justice so requires,” and justice
requires this amendment, as discussed above. See also MCR 2.205(B) (discussing the mandatory
joinder of a necessary party).3

        We affirm the denial of summary disposition but remand this case for the addition of
Foster as a defendant in the lawsuit. We do not retain jurisdiction.



                                                              /s/ Patrick M. Meter
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Douglas B. Shapiro




3
  We note that if Foster were not added as a defendant, plaintiff’s claim would be defective in
that it would lack a necessary party. See, e.g., MCR 2.504(B)(3) (mentioning dismissal for
failure to join a necessary party). We further note that defendant briefly requests that this Court
strike the lower court’s grant of plaintiff’s motion for genetic testing. In light of our holding
today, the grant of such an order was premature in that Foster had not been a party to the case
before the order was issued. The issue may be revisited upon remand.

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