                          STATE OF MICHIGAN

                          COURT OF APPEALS



In re Estate of KENNETH JAMES KOEHLER.


SHERRY BIERKLE, Personal Representative of               FOR PUBLICATION
the Estate of Kenneth James Koehler,                     March 24, 2016

             Appellant,

v                                                        No. 322996
                                                         Oakland Probate Court
ERNEST LEE UMBLE,                                        LC No. 2012-341834-DE

             Appellee.


In re Estate of KENNETH JAMES KOEHLER.


SHERRY BIERKLE, Personal Representative of
the Estate of Kenneth James Koehler,

             Appellant,

and

JOSEPH YORK, EDMUND YORK, RONALD
MCKEEL, DANIEL MCKEEL, GREGORY
MCKEEL, MICHAEL SIES, NANCY
SCHREIBER, and TERRI CARTER,

             Interested Persons,

v                                                        No. 322997
                                                         Oakland Probate Court
ERNEST LEE UMBLE,                                        LC No. 2012-341834-DE

             Appellee.


Before: SHAPIRO, P.J., and O’CONNELL and GLEICHER, JJ.

                                           -1-
O’CONNELL, J. (dissenting).

       I respectfully dissent. Because MCL 700.3407 places the burden on the petitioner to
prove heirship, and appellee Ernest Lee Umble is attempting to establish heirship, he has the
burden to prove his status as an heir. Accordingly, I would place the burden to establish heirship
on Umble, and I believe the proper analysis of this case is as follows:

       In 1931, Carl Cedric Umble, the paternal grandfather of decedent, Kenneth James
Koehler, died in a knife-fight that began when he punched a man for kissing Florence Koehler,
who was then pregnant with Carl Umble’s child. At that time, Carl Umble was married to
Lyndall Hackett, with whom he also had a legitimate child. He could not have known that his
decisions would seriously complicate the administration of his grandson’s estate.

        Appellant, Sherry Bierkle, appeals as of right the probate court’s order granting summary
disposition in favor of appellee, Ernest Lee Umble. Bierkle raises two issues on appeal. First,
the probate court ruled that Umble is a paternal heir to Kenneth Koehler under the Estates and
Protected Individuals Code (EPIC), MCL 700.1101 et seq. Bierkle contends that the trial court
erred. I disagree and conclude that the trial court correctly found that Umble is a paternal
relative under EPIC.

        Second, Bierkle contends that the trial court incorrectly decided that MCL 700.2114(4),
which precludes a natural parent inheriting from a child that the parent failed to acknowledge or
refused to support, cannot apply in a case where a parent predeceased the child. I agree and
conclude that MCL 700.2114(4) can apply, and I further conclude that unresolved factual issues
exist regarding whether Carl Umble acknowledged and/or refused to support Carl Koehler. I
would reverse and remand for further proceedings consistent with this opinion.

                                I. FACTUAL BACKGROUND

       In February 2012, Koehler died intestate with a distributable estate of about $500,000.
Koehler had no children or siblings, and his parents predeceased him. On July 8, 2013, Sherry
Bierkle, Koehler’s maternal cousin, filed a final accounting and a proposed settlement of
Koehler’s estate among his maternal relatives. On July 23, 2013, Umble objected to Bierkle’s
proposed settlement. Umble asserted that he was Koehler’s paternal uncle. The family tree is as
follows:

               Florence Koehler            Carl Cedrick Umble              Lyndall (Lydia)
                                                                              Hackett
                                            9/3/1910-2/7/1931

               Anna York              Carl James Koehler              Ernest Lee Umble
                                                                         (Appellee)
                                       5/17/1931-6/27/1960
      Maternal Relatives          Kenneth James Koehler
         (Appellant &                  (Decedent)
      Interested Persons)

                                               -2-
        A news article from February 8, 1931, provides the context for Carl Umble’s death. Carl
Umble had been “separated for several months from his wife, Mrs. Lydia Hackett Umble . . .”
Florence Koehler and Carl Umble quarreled and he “failed to revive the girl’s affection for him,”
but he was “reported to have threatened violence to any who went out with [Koehler] . . . .”
Clyde Shadwick, who admitted to stabbing Carl Umble, stated that he was “knocked down by a
blow of Umble’s fist” when he attempted to kiss Florence Koehler, and he stabbed Carl Umble
in self-defense. Carl Koehler was born about three months later, and his Colorado birth
certificate listed Carl Umble as his father.

        Bierkle filed a proposed settlement of Koehler’s estate among his maternal relatives.
Shortly afterward, Umble filed objections, asserting that Koehler’s paternal relatives1 were
entitled to half the estate. Bierkle filed for summary disposition, asserting that even if Carl
Umble was Carl Koehler’s natural father, Umble could not be an heir to Koehler’s estate at law.
According to Bierkle, Carl Umble was barred from inheriting as a matter of law because MCL
700.2114(4) provides that a parent may not inherit through a child that the parent did not
acknowledge or failed to support. According to Bierkle, it was impossible for a predeceased
parent to establish that he acknowledged or supported an afterborn child.

        Umble responded that the probate court should grant summary disposition in his favor
under MCR 2.116(I)(2) because MCL 700.2114(4) does not apply if the parent predeceased the
birth of the child. According to Umble, this section conflicted with other provisions of EPIC.
Following a hearing, the probate court granted summary disposition in favor of Umble. It
reasoned that applying MCL 700.2114(4) in cases where a child predeceased the parent would
conflict with other sections of EPIC.

       The probate court held a bench trial to determine whether Carl Umble was the natural
father of Carl Koehler. Following proofs by both parties, the probate court found that Carl
Umble was Carl Koehler’s father and was entitled to inherit through him. As a result, it
sustained Umble’s objections to the proposed settlement of Koehler’s estate and ruled that
Koehler’s paternal relatives should inherit half the estate.

        Bierkle now appeals. The questions this Court must answer to resolve the issues
presented are (1) whether Carl Umble was the father of Carl Koehler for the purposes of EPIC,
and (2) whether MCL 700.2114(4) applies in cases of afterborn children.

                                   II. STANDARDS OF REVIEW

        This Court reviews for clear error the probate court’s factual findings. In re Bennett
Estate, 255 Mich App 545, 549; 662 NW2d 772 (2003). Its findings are clearly erroneous if this
Court is definitely and firmly convinced that it made a mistake. Id.

       We review de novo issues of statutory interpretation. In re Casey Estate, 306 Mich App
252, 256; 856 NW2d 556 (2014). If the plain and ordinary meaning of a statute’s language is


1
    Umble is the only surviving paternal relative.


                                                     -3-
clear, we will enforce the statute as written. Id. We must consider the statute as a whole and in
context, giving every word meaning and avoiding constructions that render parts of the statute
surplusage. Id. at 257. We should not write into a statute provisions that the Legislature has not
included. Id.

        We review de novo the probate court’s decision on a motion for summary disposition.
Id. at 256. “A motion for summary disposition under MCR 2.116(C)(8) tests the legal
sufficiency of the claim as pleaded . . . .” Id. The probate court properly grants summary
disposition if the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(8).
The probate court may grant summary disposition under MCR 2.116(I)(2) if “the opposing party,
rather than the moving party, is entitled to judgment . . . .”

                                   III. BACKGROUND LAW

        Bierkle asserts that the probate court clearly erred when it found that Carl Umble was the
natural father of Carl Koehler. Whether Carl Umble was Carl Koehler’s father for the purposes
of EPIC is important in this case because it determines whether Umble can inherit as a paternal
descendant. If Carl Umble was entitled to inherit from his child Carl Koehler, Umble is the only
surviving descendant of Koehler’s paternal grandparents and he is entitled to inherit half of
Koehler’s estate. Otherwise, Bierkle and the other descendants of Koehler’s maternal
grandparents will inherit the entire estate.

        Article II, part 1 of EPIC governs rights to an intestate inheritance. In re Certified
Question, 493 Mich 70, 76-77; 825 NW2d 566 (2012). Some basic definitions are necessary to
understand the order of inheritance. EPIC defines “descendant” as “in relation to an individual,
all of his or her descendants of all generations, with the relationship of parent and child at each
generation being determined by the definitions of child and parent contained in this act.” MCL
700.1103(k). EPIC defines a “parent” as “an individual entitled to take, or who would have been
entitled to take, as a parent under this act by intestate succession from a child who dies without a
will and whose relationship is in question.” MCL 700.1106(i).

       If a decedent dies intestate and has no surviving spouse, EPIC provides the order in
which the decedent’s estate will pass to his or her surviving relatives. MCL 700.2103. First, the
estate will pass to the decedent’s descendants. MCL 700.2103(a). If the decedent has no
descendants, the estate will pass to the decedent’s surviving parent or parents. MCL
700.2103(b). If the decedent has neither descendants nor surviving parents, the estate will pass
to the descendants of the decedent’s parents (the decedent’s siblings, nieces, and nephews).
MCL 700.2103(c).

        If the decedent has no surviving descendants, parents, or descendants of parents, EPIC
instructs the probate court to determine whether there are any descendants of the decedent’s
grandparents. MCL 700.2103(d). Half the decedent’s estate passes to the decedent’s paternal
grandparents or their descendants, and half the decedent’s estate passes to the decedent’s
maternal grandparents or their descendants. MCL 700.2103(d). Finally, “[i]f there is no
surviving grandparent or descendant of a grandparent on either the paternal or the maternal side,
the entire estate passes to the decedent’s relatives on the other side in the same manner as the


                                                -4-
1/2.” MCL 700.2103(d). The burden of establishing heirship is on the petitioner. MCL
700.3407.2

        Accordingly, if Carl Umble was entitled to inherit as Carl Koehler’s parent, Umble is
entitled to inherit half of Koehler’s estate because he is the sole surviving descendant of
Koehler’s paternal grandparents. But if inheritance could not pass up to Carl Umble through his
relationship with Carl Koehler, it cannot pass back down to Umble, and he is not entitled to a
portion of the estate.

                        IV. UMBLE’S RELATIONSHIP TO KOEHLER

       EPIC provides that, generally, a child is the child of his or her natural parents even if they
were not married:

       Except as provided in subsections (2), (3), and (4), for purposes of intestate
       succession by, through, or from an individual, an individual is the child of his or
       her natural parents, regardless of their marital status. . . . [MCL 700.2114(1).]

MCL 700.2114(1)(b) sets forth circumstances in which a man is considered to be the natural
parent of a child when that child is conceived out of wedlock. In this case, the probate court
proceeded under MCL 400.2114(b)(v). This subparagraph provides that:

       [r]egardless of the child’s age or whether or not the alleged father has died, the
       court with jurisdiction over probate proceedings relating to the decedent’s estate
       determines that the man is the child’s father, using the standards and procedures
       established under the paternity act, . . . MCL 722.711 to 722.730.

        Michigan’s Paternity Act “was created as a procedural vehicle for determining the
paternity of children born out of wedlock.” In re MKK, 286 Mich App 546, 557; 781 NW2d 132
(2009) (quotation marks and citations omitted). The Paternity Act provides four ways in which a
court may establish paternity by an order of filiation:

       (a) The finding of the court or the verdict determines that the man is the father.

       (b) The defendant acknowledges paternity either orally to the court or by filing
       with the court a written acknowledgement of paternity.

       (c) The defendant is served with summons and a default judgment is entered
       against him or her.

       (d) Genetic testing . . . determines that the man is the father. [MCL 722.717(1).]



2
 Pre-EPIC caselaw required the child-petitioner to show mutual acknowledgement to inherit.
See In re Scharenbroch Estate, 191 Mich App 215, 216; 477 NW2d 436 (1991); In re Jones
Estate, 207 Mich App 544, 548; 525 NW2d 493 (1994).


                                                -5-
The party seeking to prove paternity must establish by a preponderance of the evidence that the
man is the child’s father. Bowerman v MacDonald, 431 Mich 1, 14; 427 NW2d 477 (1988).

       This case did not involve a written acknowledgement of paternity, a default judgment, or
genetic testing. Instead, the probate court relied on the documentary evidence that the parties
presented at the bench trial. Bierkle specifically challenges the probate court’s reliance on Carl
Koehler’s birth certificate, which listed Carl Umble as his father.

        I agree with Bierkle that this birth certificate did not definitively establish that Carl
Umble was Carl Koehler’s father. But the statement on which Bierkle relies from the probate
court’s opinion is taken out of context. A full review of the probate court’s opinion reveals that
the probate court did not solely rely on the birth certificate. It was only part of the evidence that
the court considered.

        In its findings, the probate court specifically noted that Carl Umble was killed in a knife
fight over Florence Koehler, Carl Koehler’s mother; that a newspaper article and death certificate
indicated that Carl Umble’s mother was Grace Umble, and Carl Koehler’s obituary listed his
grandmother as Grace Roberts of Denver, Colorado; and that Carl Koehler’s marriage certificate
listed his father as “Carl Sedric Umble.” Given the body of evidence and the lack of evidence
that Carl Koehler’s father was someone else, I am not definitely and firmly convinced that the
probate court made a mistake when it found that a preponderance of the evidence supported that
Carl Umble was Carl Koehler’s father.

                         V. ACKNOWLEDGEMENT AND SUPPORT

        That Carl Umble was Carl Koehler’s natural father does not automatically mean that he is
entitled to inherit through Carl Koehler. Bierkle contends that the probate court erred when it
determined that MCL 700.2114(4) cannot apply in circumstances where the parent dies before
the child is born. Bierkle also contends that MCL 700.2114(4) bars Umble from inheriting as a
matter of law because it is impossible for a natural parent to acknowledge or support an afterborn
child. I agree in part. I conclude that the probate court erred when it concluded that MCL
700.2114(4) can only apply in cases involving living parents, but I conclude that it does not bar
Umble from inheriting as a matter of law.

                                 A. STATUTORY LANGUAGE

      The probate court denied Bierkle’s motion for summary disposition because it accepted
Umble’s argument that the exception in MCL 700.2114(4) could not apply in this case.

        As noted above, EPIC also provides “[e]xcept as provided in subsections (2), (3), and
(4), for purposes of intestate succession by, through, or from an individual, an individual is the
child of his or her natural parents, regardless of their marital status. . . .” MCL 700.2114(1)
(emphasis added). Subsection 4 provides that:

       [i]nheritance from or through a child by either natural parent or his or her kindred
       is precluded unless that natural parent has openly treated the child as his or hers,
       and has not refused to support the child. [MCL 700.2114(4).]


                                                -6-
        To accept Umble’s argument that MCL 700.2114(4) cannot apply in this case is to
essentially write an additional condition into MCL 700.2114(4), a clause that would read “unless
the child is an afterborn child.” This Court does not read clauses into unambiguous statutory
language. Casey Estate, 306 Mich App at 257. However, the probate court accepted Umble’s
argument, concluding that MCL 700.2114(4) did not apply in such cases because it would be
impossible for the predeceased parent to comply and other statutory sections allow for
inheritance through predeceased parents. I conclude that the probate court erred when it decided
that MCL 700.2114(4) does not apply to cases involving afterborn children.

         If the language of the statute is unambiguous, we must enforce the statute as written.
Casey Estate, 306 Mich App at 256. We should not read language into an unambiguous statute.
McCormick v Carrier, 487 Mich 180, 209; 795 NW2d 517 (2010). A statute is ambiguous only
if it irreconcilably conflicts with another provision or it is equally susceptible to more than a
single meaning. Mayor of the City of Lansing v Pub Serv Comm’n, 470 Mich 154, 166; 680
NW2d 840 (2004).

       The probate court implicitly found that MCL 700.2114(4) is ambiguous when it reasoned
that applying this subdivision in cases involving afterborn children would conflict with other
sections of EPIC. Specifically, the probate court cited MCL 700.2114(3), MCL 700.2104, MCL
700.2107, and MCL 700.2108 as conflicting provisions. I will analyze each of these statutory
sections in turn.

        MCL 700.2114(3) provides that a termination of parental rights precludes a parent from
inheriting:

       The permanent termination of parental rights of a minor child by an order of a
court of competent jurisdiction; . . . or by any other process recognized by the law
governing the parent-child status at the time of termination, excepting termination by
emancipation or death, ends kinship between the parents whose rights are so terminated
and the child for purposes of intestate succession by that parent from or through the child.

By its plain language, MCL 700.2114(3) applies to actions terminating parental rights. While
MCL 700.2114(3) recognizes that death does not terminate a parental relationship, this has no
bearing on the operation of MCL 700.2114(4). MCL 700.2114(4) does not terminate the
parental relationship by death, it precludes inheritance if the parent did not acknowledge or
refused to support the child. Not only does this case not involve termination of parental rights or
any law governing parent-child status at the time of termination, but even in a case that did, I am
unable to determine any ways in which these sections irreconcilably conflict. I conclude that this
subsection does not conflict with MCL 700.2114(4).

        MCL 700.2104 provides that “an individual who fails to survive a decedent by 120 hours
is considered to have predeceased the decedent for purposes . . . of intestate succession . . . .”
This section concerns the death of the child, not the parent, and it does not touch on the parent-
child relationship at all. This section would not irreconcilably conflict with MCL 700.2114(4)
even if both the decedent and unborn child died within 120 hours of each other. I conclude that
these sections do not conflict.


                                                -7-
         MCL 700.2107 provides that “[a] relative of the half blood inherits the same share he or
she would inherit if he or she were of the whole blood.” Nothing in MCL 700.2114(4)
contradicts this section. MCL 700.2114(4) is only concerned with whether a natural father
acknowledged or refused to support a child. That child’s blood relationship to other children is
not at issue. These sections do not conflict.

        MCL 700.2108 provides that “[a]n individual in gestation at a particular time is treated as
living at that time if the individual lives 120 hours or more after birth.” Rather than conflicting,
this actually supports the application of MCL 700.2114(4) in cases where the natural parent
predeceases the child. It instructs the probate court to treat an afterborn child as though it was
living child at the time of the parent’s death. This section does not conflict with MCL
700.2114(4), which does not by its language exclude afterborn children from consideration. I
conclude that these sections do not conflict.

        I conclude that the probate court erred by reading language into MCL 700.2114(4) to
exclude afterborn children. This section is not ambiguous because it does not conflict with other
sections of EPIC. I recognize that applying MCL 700.2114(4) in cases involving afterborn
children may be difficult. But that the statute appears to be inconvenient, is not a reason for this
Court to avoid applying plain statutory language. Johnson v Recca, 492 Mich 169, 187; 821
NW2d 520 (2012). Accordingly, I conclude that MCL 700.2114(4) applies in all cases of
intestate succession from a child to a natural parent, not exclusive of afterborn children.

       However, this does not mean that Bierkle is correct that Umble’s claim is barred as a
matter of law. Bierkle’s argument is premised on the presumption that a natural father cannot
acknowledge or support an afterborn child. I reject this presumption and conclude that the
probate court did not err by denying Bierkle’s motion for summary disposition.

        As previously discussed, under MCL 700.2108, the probate court should consider the
afterborn child of a predeceased father as though it were a living child at the time of his death. I
therefore conclude that under MCL 700.2114(4), the probate court must determine whether the
predeceased natural father failed to acknowledge or refused to provide support to the unborn
child at the time of the father’s death. Accordingly, this issue cannot be resolved as a matter of
law.

                                B. PERSUASIVE AUTHORITY

        Additionally, because this is an issue of first impression in Michigan, this Court may
consider cases from other jurisdictions as persuasive. See In re Turpening Estate, 258 Mich App
464, 466; 671 NW2d 567 (2003). Other jurisdictions hold that a natural father can acknowledge
and provide support for a child even if the child dies before its birth. While this factual scenario
is not directly analogous to a case involving an afterborn child, the crux of the argument—that it
is impossible for the natural parent to acknowledge and support the child—is the same in both
factual scenarios.

        In In re Estate of Poole, 328 Ill App 3d 964; 263 Ill Dec 129; 767 NE2d 855 (2002), the
Appellate Court of Illinois considered a case in which the acknowledged biological father of a
fetus that was stillborn could inherit through the child. In that case, the Third District Appellate

                                                -8-
Court of Illinois considered whether statutory language providing that a father could not inherit
through an illegitimate child unless the father, during the child’s lifetime, acknowledged the
child, established a parental relationship with the child, and supported the child. Id. at 969. The
maternal relatives in Poole argued that the father was not eligible to inherit because the child did
not have a lifetime and so the father could not acknowledge, support, or establish a relationship
with her. Id. The court determined that the father could qualify as an eligible parent because he
resided with the child’s mother throughout the pregnancy, provided financial and emotional
support to the mother and through her to the unborn child, and held himself out as the child’s
father. Id. at 970.

        Similarly, in Williams v Farmer, 2002 CA 02094 SCT; 876 So 2d 300 (Miss, 2004), the
Supreme Court considered a statute that provided that a father could not inherit through an
illegitimate child unless the father openly treated the child as his own and had not refused or
neglected to support the child. The father in Williams argued that this statute did not apply when
his unborn child died in a car accident because it was impossible for him to comply with the
statutory requirements. Id. at ¶ 8-9, 20. The court found that the statute did apply because the
father could acknowledge the fetus and provide support for it during the pregnancy. Id. at ¶ 23.
The court barred the father from inheritance because he had no contact with the child’s mother
while she was pregnant, and “did not contribute any support, financial or otherwise” to the
mother during or after the pregnancy. Id. at ¶ 26.

       I find these cases persuasive. They establish that, in other states with similar statutes,
courts have found that it is not impossible for a natural father to acknowledge and support an
unborn child.

                                       C. APPLICATION

        In this case, the proofs are complicated by the passage of time. Carl Umble died in 1931.
However, circumstantial evidence and inferences from the evidence may support the probate
court’s findings. See Kupkowski v Avis Ford, Inc, 395 Mich 155, 166; 235 NW2d 324 (1975)
(holding circumstantial evidence and reasonable inferences sufficient to provide proof in a civil
case).

         Considering acknowledgment, the present state of the law in Colorado is that a father
must consent to be placed on the child’s birth certificate to be named a father on the birth
certificate. See CRS § 19-4-105(1)(c)(III). There is no evidence regarding the state of the law in
Colorado at the time of Carl Koehler’s birth, but if similar laws existed, the fact that Carl Umble
is listed on Carl Koehler’s birth certificate might provide evidence of acknowledgment. If the
child was acknowledged in Carl Umble’s obituary, that too may be additional evidence.

        I also note that there are no prescribed ways in which a father must support the child. See
Turpening Estate, 258 Mich App at 468. The language of MCL 700.2114(4) states that this
section applies if the parent refused to support the child. There must be some evidence of a
refusal to support on the part of the natural parent. For instance, if another relative asked the
natural father to support the child’s mother but the father denied that the child was his, this may
be evidence of refusing to support the child. See Id. at 468. Similarly, a natural father’s lack of
involvement in a pregnancy of which he was aware could provide circumstantial evidence to

                                                -9-
support an inference that the father refused to support the child. In contrast, if a natural father
supported the unborn child by supporting its mother through the pregnancy or made provisions
for familial support, this may be evidence that the predeceased father did in fact support the
child. I note that a newspaper article provides evidence that Carl Umble was involved in an
ongoing relationship with Koehler until his death, to the point of striking a man who was kissing
her and getting into a fatal knife fight. I do not decide whether the evidence is sufficient to
support an inference or finding on this point— I simply note that evidence may exist.

       Because the probate court determined that MCL 700.2114(4) did not apply in this case, it
did not receive evidence on either of these requirements. I would remand for additional
proceedings.

                                       VI. CONCLUSION

        It may be difficult for the predeceased natural father of a child born out of wedlock to
comply with MCL 700.2114(4), but the statute is not ambiguous, and the proofs are not
impossible. MCL 700.2114(4) applies in cases involving the predeceased natural fathers of
afterborn children. In such cases, the probate court must determine (1) whether the man was the
child’s natural father, (2) whether the father acknowledged the unborn child, and (3) whether the
father refused to support the unborn child.

        I would reverse the probate court’s determination that MCL 700.2114(4) did not apply in
this case and remand for further proceedings.

                                                            /s/ Peter D. O’Connell




                                               -10-
