                            STATE OF MICHIGAN

                            COURT OF APPEALS



DEPARTMENT OF HEALTH AND HUMAN                                       UNPUBLISHED
SERVICES,                                                            May 30, 2017

               Plaintiff,

v                                                                    No. 336553
                                                                     Oakland Circuit Court
ANNETTE BIRMINGHAM,                                                  LC No. 2014-819042-DS

               Defendant-Appellee,

and

DAVID ARNOLD,

               Other Party-Appellee,

and

MARY DEEGAN and MICHAEL DEEGAN,

               Other Parties-Appellants.


Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Other parties, Mary Deegan and Michael Deegan (collectively “the Deegans”), appeal as
of right an order granting summary disposition in favor of defendant Annette Birmingham and
other party David Arnold (collectively “the parents”), and dismissing the Deegans’ request to
intervene as third parties to a pending child support action and petition for full legal and physical
custody of minor child ARB, over whom the Deegans act as custodians at the request of the
parents. The trial court entered the order after finding that the Deegans’ motion to intervene, in
substance, represented a petition to initiate custody proceedings and the Deegans, as third parties,
did not have standing to file under the relevant statutes. We affirm.

       This case arose from a 2014 child support proceeding brought by the Department of
Health and Human Services (“DHHS”), requesting an order directing Birmingham to make
monthly support payments to Michael, ARB’s acting custodian. At the time of the action, ARB

                                                -1-
had resided with Michael and his wife Mary since 2010, when Birmingham, abandoned by
Arnold and unable to care for the minor child on her own, asked the Deegans to provide care for
her daughter. Birmingham provided the Deegans with a limited power of attorney in 2011, and
in 2014, the child support action initiated by the DHHS resulted in a default judgment of support
designating Michael as the “custodian” and recipient of monthly child support payments.

        Sometime after the support order entered, the Deegans became aware that Arnold, who
had left Birmingham and ARB when ARB was two years old, had returned to rekindle his
romantic relationship with Birmingham and was requesting parenting time with his daughter.
This prompted the Deegans to fear that their status as ARB’s caregivers was in jeopardy. The
Deegans believed that a return of custody to the parents, especially Arnold, who had a record of
domestic violence, discharge from the Army for striking an officer, a diagnosis of posttraumatic
stress disorder, homelessness, and a suicide attempt, would place ARB in serious danger. In the
fall of 2016, the Deegans filed a motion to intervene under MCR 2.209 as third parties to the
existing child support proceeding, asking the court to add Arnold as a party to the proceedings
and grant the Deegans full legal and physical custody of ARB. The parents responded with a
motion for summary disposition characterizing the Deegans’ motion to intervene as a “thinly
veiled motion for custody of a minor child,” and arguing that the Deegans lacked standing to
petition for custody of ARB. The Deegans replied by conceding that they lacked legal standing
to initiate a custody proceeding but arguing that the trial court had the authority to continue
custody in Michael, who had been recognized as having custody when he was named
“custodian” in the 2014 default judgment. Because the trial court had jurisdiction over ARB,
argued the Deegans, it could award the Deegans custody in the minor child’s best interests.

        The trial court considered the parties’ arguments without holding a hearing, and granted
the parents’ motion for summary disposition with a written opinion and order, explaining:

       The court agrees with the position of Defendant Parents that Proposed Intervenors
       motion to intervene in effect is a petition for custody . . . . Proposed Intervenors
       concede that they lack legal standing to initiate a lawsuit over custody of the
       minor child but contend that custody has been before this court since entry of the
       Default Judgment of Support. However, custody was not awarded or determined
       by the Default Judgment of Support. Rather, the language of the Judgment
       acknowledged that Proposed Intervenor Michael Deegan was caring for the minor
       child and that Defendant Mother should pay child support to Proposed Intervenors
       while the minor child was in their care. The court finds that Proposed Intervenors
       lack the capacity to sue.

         On appeal, the Deegans argue that the trial court erred in granting the parents’ motion for
summary disposition on the basis that the Deegans, as uninterested third parties, lacked standing
to initiate a custody proceeding under the relevant statutes. We disagree.

        We review a trial court’s decision on a motion for summary disposition de novo. Loweke
v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). Although
the parents here did not specifically refer to MCR 2.116(C)(5) in their motion for summary
disposition, their motion was premised on the Deegans’ lack of standing and we find that, in
substance if not form, the parents’ motion was brought pursuant to that rule. MCR 2.116(C)(5)

                                                -2-
provides for summary disposition when “[t]he party asserting the claim lacks the legal capacity
to sue,” and applies in cases involving alleged lack of standing, Aichele v Hodge, 259 Mich App
146, 165; 673 NW2d 452 (2003). “In reviewing a motion for summary disposition pursuant to
MCR 2.116(C)(5), this Court must consider the pleadings, depositions, admissions, affidavits,
and other documentary evidence submitted by the parties.” Jones v Slick, 242 Mich App 715,
718; 619 NW2d 733 (2000). “Ordinarily, questions of law, including statutory interpretation and
the issue of a party’s standing, are also reviewed de novo.” Salem Springs, LLC v Salem Twp,
312 Mich App 210, 216; 880 NW2d 793 (2015).

                     I. THIRD PARTY STANDING AND MCL 722.27(1)

        The Deegans properly concede that, as third parties, they lack legal standing to initiate a
child custody dispute. However, they assert that the lower court, as an arbiter of equity, has the
power to grant them standing as persons interested in the subject matter of a proceeding, here
ARB. Their assertions are contrary to clearly established law. As this Court explained in In re
Anjoski, 283 Mich App 41, 50-51; 770 NW2d 1 (2009):

       Generally, a party has standing if it has “some real interest in the cause of action, .
       . . or interest in the subject matter of the controversy.” However, this concept is
       not given such a broad application in the context of child custody disputes
       involving third parties, or “any individual other than a parent[.]” For example, a
       third party does not have standing by virtue of the fact that he or she resides with
       the child and has a “personal stake” in the outcome of the litigation. [Id.
       (citations omitted; emphasis added).]

The Deegans, who acknowledge that the Child Custody Act, MCL 722.21 et seq., controls the
issues in this case, should remain mindful that “[a]lthough courts undoubtedly possess equitable
power . . . [a] court’s equitable power is not an unrestricted license for the court to engage in
wholesale policymaking,” and equity may not “trump an unambiguous and constitutionally valid
statutory enactment.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590-591; 702 NW2d 539
(2005).

        Aside from their equitable arguments, the Deegans contend that the trial court erred when
it granted the parents’ motion for summary disposition under MCR 2.116(C)(5) for lack of
standing because the issue of standing was simply not relevant under MCL 722.27(1)(a), which,
according to the Deegans, grants the trial court authority to consider whether the best interests of
a minor child support a custody award to a third party regardless of standing. The Deegans are
correct that under MCL 722.27(1)(a), the trial court has the authority to consider whether
placement with third parties is in the best interests of a minor child. The Deegans, however,
misinterpret the plain language of the statute. MCL 722.27(1)(a) provides:

       (1) If a child custody dispute has been submitted to the circuit court as an original
       action under this act or has arisen incidentally from another action in the circuit
       court or an order or judgment of the circuit court, for the best interests of the child
       the court may do 1 or more of the following:




                                                -3-
       (a) Award the custody of the child to 1 or more of the parties involved or to others
       and provide for payment of support for the child, until the child reaches 18 years
       of age.

MCL 722.27(1)(a) clearly allows the trial court to consider whether custody of a third party
would be in the best interests of a child after a child custody dispute has been submitted to the
court as an original action or has arisen as an incident to another action in the circuit court. It
does not, as the Deegans suggest, grant the circuit court authority to take up the best interests
determination at its whim, or at the request of a party otherwise without standing to initiate child
custody proceedings. Our Supreme Court has made clear that “a third party cannot create a
custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to
the third party is in the best interests of the child.” Bowie v Arder, 441 Mich 23, 48-49; 490
NW2d 568 (1992). Rather, MCL 722.27(1) contains a threshold requirement that an existing
custody dispute is properly before the circuit court. Terry v Affum (On Remand), 237 Mich App
522, 533; 603 NW2d 788 (1999). Indeed, in each of the cases cited by the Deegans in support of
their argument that MCL 722.27(1)(a) controls in this instance, third parties were only allowed to
request custody incident to a pending custody proceeding. See Heltzel v Heltzel, 248 Mich App
1, 29; 638 NW2d 123 (2001) (noting that the case was distinguishable from cases where a third
party initiated an original custody proceeding against the minor’s parents because “the instant
custody dispute stemmed from a circuit court order during a divorce proceeding”); Terry, 237
Mich App at 533-535 (refusing to consider the propriety of an award of parenting time to third
parties without first determining “whether there was a child custody dispute properly before the
circuit court when [the third parties] were awarded parenting time”).

       Thus, the Deegans’ argument that “standing is irrelevant” is only half true. As this Court
has explained:

       Our Supreme Court specifically has recognized that while generally no authority
       permits a nonparent to create a child custody dispute by simply filing a complaint
       in the circuit court alleging that giving custody to the third party is in the best
       interests of the child, custody may be awarded to grandparents or other third
       parties according to the best interests of the child in an appropriate case (typically
       involving divorce) . . . . [A] circuit court award of custody to a third party during
       a divorce proceeding is based not on the third party’s legal right to custody of the
       child, but on the court’s determination of the child’s best interests. [Heltzel, 248
       Mich App at 29-30.] (internal quotations omitted)

The above-cited statutes and cases make clear that while a third party may be considered,
regardless of legal standing, in the custody determination of a trial court already engaged in such
a determination, no party, including an interested third party, may bring an action to initiate a
child custody dispute without possessing legal standing. The applicability of MCL 722.27(1)(a)
to the Deegans’ case therefore turns on whether the lower court proceeding constituted an
ongoing custody dispute.




                                                -4-
             II. SUPPORT CASE WAS NOT A PENDING CUSTODY DISPUTE

        The dispositive issue on appeal is whether a custody dispute was pending before the
lower court at the time the Deegans filed their motion to intervene as third parties and requested
a custody determination in their favor. Indeed, both parties acknowledge that the answer to this
question directs the ultimate issue of standing. The Deegans argue that the pending child support
case, filed by the DHHS against Birmingham in 2014, constituted a preexisting child custody
dispute because the court entered a default judgment in the case and, according to the Deegans,
“made an actual custody award” when it employed the following language: “MICHAEL DAVID
DEEGAN is the custodian of, and ANNETTE IRENE BIRMINGHAM is the mother of and
owes a duty of support to: [ARB][.]” The Deegans maintain that the trial court’s reference to
Michael as ARB’s “custodian” constituted an award of custody and, thereafter, the court
possessed jurisdiction over the minor child to make decisions regarding her care and custody.
However, the Deegans’ argument is indefensible.

        The child support case here cannot be properly characterized as a custody dispute. We
note for the parties that it is not the parents’ argument regarding case codes that is persuasive.
While the lower court file is designated “DS,” the case classification code employed in child
support cases, rather than “DC,” the code employed in custody cases, MCR 8.117, this Court has
made clear that the form of a case caption is “not particularly significant.” Howard v Bouwman,
251 Mich App 136, 146; 650 NW2d 114 (2002). Rather, it is the relief requested that controls,
and here the relief requested is dispositive. “[W]ithin the Child Custody Act the term ‘child
custody dispute’ is broadly interpreted ‘to mean any action or situation involving the placement
of a child.’ ” Terry, 237 Mich App at 533 (citations omitted). The lower court proceeding, a
request for entry of a child support order, was initiated by the DHHS against Birmingham
because the DHHS was providing assistance to ARB while she was in the Deegans’ care. No
issues of custody or placement were raised in the complaint, or addressed before the lower
court’s entry of the default judgment of support. Notably, the 2014 default judgment designating
Michael as ARB’s custodian explicitly withheld judgment on issues relating to custody and
parenting time.

        Contrary to the Deegans’ assertion, Michael’s designation as ARB’s “custodian” in the
2014 default judgment was a matter of classification for purposes of distributing child support
funds, and not an award or continuation of custody. An individual need not have legal custody
of a minor child to receive child support payments on the minor child’s behalf, see MCL
552.605d(4) (stating that “[t]he office of the friend of the court may consider the person who is
providing the actual care, support, and maintenance of a child for whom support is ordered as the
recipient of support for the child and may redirect support paid for that child to that recipient of
support,” without limiting receipt of support to persons with court-ordered custody), and the
Deegans have cited no authority for the proposition that a trial court may award custody to a
third party through a default judgment of support and without holding a hearing on the matter.
“An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims[.]” Houghton v Keller, 256 Mich App 336, 339; 662 NW2d
854 (2003) (quotations and citations omitted). In truth, the Deegans never had court sanctioned
legal or physical custody of the minor child, a fact they explicitly acknowledge. The Deegans
conceded in the lower court, as they have on appeal, “that the whole point of seeking
intervention is to gain custodial rights over the minor child.” Had the default judgment imbued

                                                -5-
custody of ARB onto Michael, such an intervention would not have been necessary, and the
Deegans cannot now argue that a custody case was pending before they filed their motion to
intervene. “An issue conceded by a party below may not be treated by this Court as open for
review.” Kast v Citizens Mut Ins Co, 125 Mich App 309, 313; 336 NW2d 18 (1983). The child
support proceeding was not a custody proceeding, and no custody dispute was pending before
the lower court when the Deegans filed their motion to intervene. The Deegans’ motion can
therefore only be characterized as a motion to initiate custody proceedings.

   III. TRIAL COURT DID NOT ERR WHEN IT GRANTED SUMMARY DISPOSITION
              PURSUANT TO MCR 2.116(C)(5) FOR LACK OF STANDING

        As previously discussed, the Deegans’ request for custody as third parties without legal
standing could only have been appropriate if it arose within the context of a pending custody
dispute, and here it did not. The trial court therefore did not err when it limited its determination
on the parents’ motion for summary disposition to the applicability of MCL 722.26b and
722.26c(1)(b), the only two statutes through which the Legislature has conferred standing on
third parties to initiate a child custody proceeding. Anjoski, 283 Mich App at 51. Neither did the
trial court err when it concluded that the Deegans failed to meet the requirements for standing
under either statute. The first, MCL 722.26b, allows guardians and limited guardians to bring an
action for custody of a minor child in certain situations. In pertinent part, it provides:

       (1) Except as otherwise provided in subsection (2), a guardian or limited guardian
       of a child has standing to bring an action for custody of the child as provided in
       this act.

       (2) A limited guardian of a child does not have standing to bring an action for
       custody of the child if the parent or parents of the child have substantially
       complied with a limited guardianship placement plan regarding the child . . . .

A third party may also obtain standing under MCL 722.26c(1)(b), if he or she meets all of the
following conditions:

       (i) The child’s biological parents have never been married to one another.

       (ii) The child’s parent who has custody of the child dies or is missing and the
       other parent has not been granted legal custody under court order.

       (iii) The third person is related to the child within the fifth degree by marriage,
       blood, or adoption.

These provisions do not apply here. Neither of the Deegans obtained guardianship or limited
guardianship of ARB, and MCL 722.26b therefore does not confer standing to initiate a custody
dispute. Additionally, although the parents were never married and the Deegans are related to
ARB as her great-aunt and great-uncle, neither of ARB’s parents are dead or missing so that the
Deegans also fail to meet the conditions for standing under MCL 722.26c(1)(b). “If a third party
does not fit within one of the two statutory standing requirements, the third party lacks standing
to create a custody dispute.” Anjoski, 283 Mich App at 52. Because the Deegans met none of
the statutory standing requirements, and neither the child’s residence with the Deegans nor the

                                                -6-
Deegans’ limited power of attorney were sufficient to create standing, the trial court properly
concluded that the Deegans lacked standing to file a petition for custody and granted the parents’
motion for summary disposition pursuant to MCR 2.116(C)(5).

        Further, contrary to the Deegans’ assertion on appeal, the trial court was not required to
conduct a trial on the “factual issues” under MCR 2.116(I) before granting the parents’ motion
for summary disposition. Although MCR 2.116(I) provides that a court “may” order a trial to
resolve disputed material facts before granting a motion for summary disposition, the statute is
clearly permissive in this regard. Old Kent Bank v Kal Kustom, Enterprises, 255 Mich App 524,
532; 660 NW2d 384 (2003) (“As a general rule, the word ‘may’ will not be treated as a word of
command unless there is something in the context or subject matter of the act to indicate that it
was used in such a sense” [citations omitted]). And, the Deegans failed to allege any disputed
facts that might overcome their lack of standing. MCR 2.116(I) also commands that “[i]f the
pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other
proofs show that there is no genuine issue of material fact, the court shall render judgment
without delay.” (Emphasis added.) The trial court therefore did not err when it granted the
motion for summary disposition without holding a trial.

   IV. MOTION FOR SUMMARY DISPOSITION WAS NOT AN IMPROPER VEHICLE

        The Deegans next contend that the trial court was obligated to dismiss the parents’
motion for summary disposition because, regardless of its merits, the parents’ motion for
summary disposition was not a legally appropriate response to the Deegans’ motion to intervene.
The Deegans’ argument lacks merit. They are correct that a motion for summary disposition,
under any subrule, must be sought on a “claim” under MCR 2.116(B)(1), which allows a party to
“move for dismissal or judgment on all or part of a claim.” (Emphasis added.) However, they
continue their reasoning with the specious contention that “[a] claim is something that can only
be raised in a pleading [under] MCR 2.111(B).” MCR 2.111(B) provides:

       (B) Statement of Claim. A complaint, counterclaim, cross-claim, or third-party
       complaint must contain the following:

       (1) A statement of the facts, without repetition, on which the pleader relies in
       stating the cause of action, with the specific allegations necessary reasonably to
       inform the adverse party of the nature of the claims the adverse party is called on
       to defend; and

       (2) A demand for judgment for the relief that the pleader seeks . . . .

While MCR 2.111(B) requires that a pleading contain a “demand for judgment for the relief that
the pleader seeks,” it contains no requirement, overt or implied, that a claim may only be raised
in a pleading. And, the form of the Deegans’ ”motion” belies their attempt to characterize it as
something other than a third-party complaint. In addition to stating their grounds for
intervention, the Deegans included a request for relief in the form of, among other things, an
“[o]rder that the intervenors be awarded sole legal and physical custody of [ARB][.]” This is
clearly a claim on which summary disposition might be granted. Regardless, the Deegans’
motion to intervene was properly considered. Even “a party moving to intervene in litigation . . .

                                                -7-
must demonstrate that the party has standing to assert his or her claims.” Anjoski, 283 Mich App
at 52 n 4, citing Karrip v Cannon Twp, 115 Mich App 726, 732; 321 NW2d 690 (1982).

       Because the trial court properly granted the parents’ motion for summary disposition for
the reasons stated above, it is unnecessary for this Court to address the Deegans’ remaining
claims of error.

                                      V. ATTORNEY FEES

         The parents argue that the trial court erred when it declined to grant them attorney fees.
However, this issue is not properly before this Court because it was raised in a responsive brief,
rather than as an issue in a brief as cross-appellants. See In re Estate of Herbach, 230 Mich App
276, 284; 583 NW2d 541 (1998) (while an appellee may raise alternative grounds for affirmance
without filing a cross-appeal, he may not seek a decision more favorable than that rendered by
the trial court without raising those issues in a cross-appeal). The parents also argue that they are
entitled to attorney fees due to the “vexatious” nature of this appeal. Although MCR 7.216(C)
provides for attorney fees in cases of vexatious appeals, MCR 7.211(C)(8) clearly states:

       A party’s request for damages or other disciplinary action under MCR 7.216(C)
       must be contained in a motion filed under this rule. A request that is contained in
       any other pleading, including a brief filed under MCR 7.212, will not constitute a
       motion under this rule. A party may file a motion for damages or other
       disciplinary action under MCR 7.216(C) at any time within 21 days after the date
       of the order or opinion that disposes of the matter that is asserted to have been
       vexatious.

Should the parents wish to request attorney fees in relation to this appeal, they must do so in a
properly filed motion within 21 days of the opinion disposing of this appeal.

       Affirmed.



                                                              /s/ Deborah A. Servitto
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Karen M. Fort Hood




                                                -8-
