                          STATE OF MICHIGAN

                           COURT OF APPEALS



ROY LAWRENCE SHARPE,                                                UNPUBLISHED
                                                                    May 29, 2018
               Plaintiff-Appellant,

v                                                                   No. 340569
                                                                    Midland Circuit Court
REBECCA HUGUELET,                                                   LC No. 16-003329-DC

               Defendant-Appellee,

and

COREY ALAN BEEBE,

               Intervenor-Appellee.


Before: MURRAY, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

       Plaintiff appeals as of right the circuit court order granting the motion of intervenor to
revoke plaintiff’s paternity to the minor child, and to recognize intervenor as the child’s father.
We affirm.

                                 I. FACTUAL BACKGROUND

        On February 16, 2016, plaintiff filed a complaint for custody and parenting time of a
child allegedly born to him and defendant in 2011. The parties were never married but,
according to plaintiff, he and defendant were attempting to have a child when defendant became
pregnant. Defendant denied that she and plaintiff were actively attempting to have a child, but
acknowledged that she was not trying to prevent pregnancy. However, unknown to plaintiff,
defendant had engaged in a sexual relationship with intervenor shortly before she became
pregnant. Intervenor testified that he found out that defendant was pregnant three or four months
later, but defendant and intervenor both testified that defendant denied that the child was
intervenor’s.

       Years later, when the child was four years old, intervenor saw a picture of the child on
Facebook and again questioned defendant regarding whether the child was his. Defendant
continued to deny the possibility that intervenor might be the child’s father. Intervenor

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eventually persuaded defendant to allow for a paternity test. In January 2016, the test result
indicated that there was a 99.99% probability that intervenor was the child’s father.

         Intervenor thus moved to intervene in the custody action between plaintiff and defendant,
and intervenor filed a motion for an extension of time to allow him to seek revocation of
plaintiff’s paternity. The court held intervenor’s motion in abeyance pending the results of a
court-ordered DNA test, which also established that intervenor — not plaintiff — was the child’s
biological father. While the court was considering intervenor’s motion, defendant was arrested
for using methamphetamine and the Department of Health and Human Services (DHHS)
removed the child from defendant’s home. Defendant executed a power of attorney that named
intervenor as the child’s custodian, and DHHS placed the child with intervenor, though the child
still had parenting weekends with plaintiff.

       Ultimately, the circuit court held a best-interest hearing. After the hearing, the court
determined that it would be in the child’s best interests for it to revoke plaintiff’s
acknowledgment of parentage and to declare intervenor the child’s legal father. Plaintiff now
appeals.

                                  II. STANDARD OF REVIEW

       This Court reviews the lower court’s factual findings in a case concerning the Revocation
of Paternity Act for clear error. Jones v Jones, 320 Mich App 248, 253; 905 NW2d 475 (2017).
The court has committed clear error when this Court is “definitely and firmly convinced that it
made a mistake.” Id. (quotation marks and citation omitted). This Court reviews de novo the
lower court’s “interpretation and application of statutory provisions.” Id.

                                    III. EXTENSION OF TIME

        Plaintiff argues that the circuit court erred by both holding a best-interest hearing before
determining that an extension of time would be in the child’s best interests, and by determining
that intervenor’s affidavit stated grounds that warranted granting him an extension of time to file
his petition to revoke plaintiff’s paternity.

        As an initial matter, we conclude that plaintiff’s arguments are only partially preserved.
An issue is preserved if it was raised before and decided by the lower court. Grimes v Van
Hook-Williams, 302 Mich App 521, 537; 839 NW2d 237 (2013). Plaintiff raised his arguments
regarding the merits of intervenor’s extension motion in his motion for summary disposition.
However, plaintiff did not argue that the court should not hold a hearing until after it determined
the merits of intervenor’s motion for an extension. To the extent that plaintiff argues that the
circuit court erred by finding that misrepresentation provided grounds to grant intervenor’s
motion for extension, this issue is preserved because it was raised before and decided by the
lower court.

        First, plaintiff argues that the circuit court erred by determining that intervenor’s affidavit
stated grounds that warranted granting him an extension of time to file his petition to revoke
plaintiff’s paternity because the Court failed to recognize any newly discovered evidence that by
due diligence could have been found earlier. We disagree.


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        The Acknowledgment of Parentage Act, MCL 722.1001 et seq., grants a man who
executes an affidavit of parentage the status of a child’s natural and legal father. Sinicropi v
Mazurek, 273 Mich App 149, 152; 729 NW2d 256 (2006). The Revocation of Paternity Act
allows the trial court to (1) revoke an acknowledgment of parentage, (2) determine a genetic
father is not a child’s father, (3) set aside an order of filiation, (4) determine that a child was born
out of wedlock, or (5) make a determination of paternity and enter an order of filiation. MCL
722.1443(2). Generally, a child’s mother, acknowledged father, alleged father, or a prosecuting
attorney may file an action to revoke an acknowledgment of parentage within three years after
the child’s birth, one year after the acknowledgment of parentage was signed, or one year after
the act went into effect. MCL 722.1437(1). However, “[a] court may extend the time for filing
an action or motion under this act.” MCL 722.1443(12). If a party requests an extension, they
must meet the following requirements:

       A request for extension shall be supported by an affidavit signed by the person
       requesting the extension stating facts that the person satisfied all the requirements
       for filing an action or motion under this act but did not file the action or motion
       within the time allowed under this act because of 1 of the following:

               (a) Mistake of fact.

              (b) Newly discovered evidence that by due diligence could not have been
       found earlier.

               (c) Fraud.

               (d) Misrepresentation or misconduct.

               (e) Duress. [MCL 722.1443(12).]

If the court finds that the party’s affidavit under MCL 722.1443(12) is sufficient, it “may allow
the action or motion to be filed and take other action the court considers appropriate.” MCL
722.1443(13). Additionally, the party requesting an extension must prove, “by clear and
convincing evidence, that granting relief under this act will not be against the best interests of the
child considering the equities of the case.” MCL 722.1443(13). Plaintiff takes issue with only
the trial court’s failure to recognize evidence that could have purportedly been discovered earlier
through the exercise of due diligence. However, an extension may be granted upon a showing of
only one of the bases set forth in MCL 722.1443(12); ( “A request for extension shall be
supported by an affidavit . . . stating facts that the person . . . did not file the action or motion
within the time allowed under this act because of 1 of the following.”). And the trial court
properly found that a misrepresentation was made.

        A misrepresentation is “the act of making a false or misleading assertion about
something, [usually] with the intent to deceive.” In re Moiles, 303 Mich App 59, 70; 840 NW2d
790 (2013), rev’d in part on other grounds by 495 Mich 944 (2014) (quotation marks, alterations,
and citation omitted.) For the purposes of the Revocation of Paternity Act, a misrepresentation




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may be either innocent or fraudulent. Id. at 71. A person makes a misrepresentation by merely
“making a false representation that deceives another[.]” Id.1

        In this case, intervenor averred that, because of defendant’s misrepresentations, he could
not have previously known that the child was his biological child. At the best-interest hearing,
plaintiff testified that he and defendant had been trying to have a child for about a year when
defendant became pregnant. Plaintiff believed he was the child’s father, and he did not know
that defendant had a sexual relationship with anyone else. Defendant testified that she did not
know that plaintiff was not the child’s father. Defendant stated that she was only with intervenor
once, and thought plaintiff was the child’s father because she “did the math[.]” Both defendant
and intervenor stated that intervenor asked if he was the father, and that defendant told him he
was not.

        The child was born in 2011. Intervenor testified that in November or December of 2015,
he saw a picture of the child on Facebook and thought that the child looked “just like [him],” but
defendant would not tell him whether he was the child’s father. Intervenor stated that defendant
told intervenor several times that the child was not his. Defendant testified that she did not
normally put pictures of her children on Facebook, but after she put a picture of the child on
Facebook, intervenor saw it and asked if there was a possibility that the child was his. Defendant
stated that she continued to tell intervenor that the child was not his. No party learned that
plaintiff was not in fact the child’s biological father until after the results of a DNA test in
January 2016.

        Accordingly, the facts established that defendant made false statements that deceived
others. Defendant had sex with intervenor outside her established relationship with plaintiff
when she knew that she was not trying to prevent pregnancy. Defendant repeatedly and falsely
told intervenor that he was not the child’s father. Intervenor was deceived by these statements
because he initially believed them, and he did not follow up on his inquiries until years later,
when new facts arose that caused him to question his false beliefs. Even then, defendant
continued to tell intervenor that he was not the child’s father. Defendant’s statements, whether
innocent or fraudulent, were false and deceived intervenor. We are not definitely and firmly
convinced that the lower court made a mistake when it found that defendant made
misrepresentations to intervenor.

        Regarding plaintiff’s argument that the circuit court should have decided the child’s best
interests before holding a hearing, we decline to address this unpreserved issue. See Grimes, 302
Mich App at 537. However, we note that it is difficult to conceive of how the circuit court could
determine whether granting relief would or would not be consistent with the child’s best interests
before it held a hearing on those interests.




1
 However, a person does not make a misrepresentation by choosing to sign an acknowledgment
of parentage, even if that person knows that he is not the child’s biological father. In re Moiles,
495 Mich 944, 944; 843 NW2d 220 (2014).


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                             IV. THE CHILD’S BEST INTERESTS

       Plaintiff argues that the circuit court committed clear error when it found that various
child custody factors did not weigh in plaintiff’s favor, and when it ultimately determined that
revoking the affidavit of parentage would be in the child’s best interests. We disagree.

        As an initial matter, we note that the parties’ briefs are not helpful on this point because
they solely address the factors found in the Child Custody Act, MCL 722.21 et seq. This Court
previously held that the circuit court had to consider the child-custody factors of MCL 722.23 to
the level of clear and convincing evidence when determining whether to revoke an
acknowledgment of paternity, if doing so would alter the child’s established custodial
environment. Helton v Beaman, 304 Mich App 97, 112-113; 850 NW2d 515 (2014), aff’d 497
Mich 1001 (2015) (opinion by O’CONNELL, J.). However, in affirming the result in Helton, the
Michigan Supreme Court further stated: “[A]n order revoking an acknowledgment of parentage
constitutes an order ‘setting aside a paternity determination’ and, therefore, is subject to a best
interests analysis under MCL 722.1443(4).” Helton, 497 Mich at 1001. The Court specifically
adopted section II of the concurring opinion issued by Judge Kelly of this Court regarding a
determination of a child’s best interests. Id. Section II of the concurring opinion in Helton
disavowed considering the factors set forth in the Child Custody Act when deciding a child’s
best interests under the Revocation of Paternity Act. Helton, 304 Mich App at 124 (opinion by
KELLY, J.) Accordingly, the circuit court erred when it stated that it had to consider the child-
custody factors, and the parties’ discussion of the child-custody factors are only helpful to the
extent that they address the circuit court’s findings and considerations under MCL 722.1443(4).

      The circuit court’s error in considering the child-custody factors is harmless because it
also considered the appropriate factors under the Revocation of Paternity Act. MCL
722.1443(4), which contains the best-interest factors for this act, provides:

               A court may refuse to enter an order setting aside a paternity
       determination, revoking an acknowledgment of parentage, determining that a
       genetic father is not a child’s father, or determining that a child is born out of
       wedlock if the court finds evidence that the order would not be in the best
       interests of the child. The court shall state its reasons for refusing to enter an
       order on the record. The court may consider the following factors:

              (a) Whether the presumed father is estopped from denying parentage
       because of his conduct.

               (b) The length of time the presumed father was on notice that he might not
       be the child’s father.

               (c) The facts surrounding the presumed father’s discovery that he might
       not be the child’s father.

              (d) The nature of the relationship between the child and the presumed or
       alleged father.

               (e) The age of the child.

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               (f) The harm that may result to the child.

               (g) Other factors that may affect the equities arising from the disruption of
       the father-child relationship.

               (h) Any other factor that the court determines appropriate to consider.

The circuit court need only articulate its reasoning regarding these factors if it refuses to alter the
child’s paternity. Jones, 320 Mich App at 256. The court must find the child’s best interests to
the level of the preponderance of the evidence. Id. at 257 n 4. Accordingly, the circuit court had
the discretion to refuse to revoke plaintiff’s paternity if doing so would not be in the child’s best
interests.

        As previously indicated, the circuit court extensively considered the Child Custody Act
factors when making its decision, and these factors are not the appropriate factors for the lower
court to consider when determining whether to revoke an acknowledgment of paternity.
However, this Court will not modify a decision of the trial court on the basis of a harmless error.
MCR 2.613(A). The trial court’s error is harmless if it is not decisive to the outcome in a case.
See Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 529; 730 NW2d
481 (2007). In addition to considering the child-custody factors, the court also considered the
revocation of paternity factors. The circuit court referred to its findings on the child-custody
factors as its reasoning regarding the potential of harm to the child under MCL 422.1443(4)(f).
The court ultimately found that revoking plaintiff’s acknowledgment of paternity was in the
child’s best interests. Because the circuit court found that revoking plaintiff’s paternity was in
the child’s best interests under the revocation of paternity factors, it is not likely that the circuit
court’s erroneous belief that it was also required to consider the child-custody factors affected
the outcome of the case.

        Next, we consider plaintiff’s specific challenges to the circuit court’s findings as they
relate to the revocation of paternity factors. We conclude that the circuit court’s findings were
not clearly erroneous.

        First, the court found that the plaintiff’s conduct favored plaintiff (MCL 722.1443(4)(a)),
and plaintiff does not dispute this finding. Regarding the factors surrounding discovery of the
identity of the child’s father (MCL 722.1443(4)(b) and (c)), the court found that defendant had
failed to inform plaintiff in a timely fashion that he was not the child’s genetic father. As
previously discussed, defendant misrepresented intervenor’s status as the child’s father for
almost five years. Similarly, defendant did not inform plaintiff that he was not the child’s father
until February 2016. The circuit court did not make a mistake when it found that plaintiff did not
discover that he was not the child’s biological father for a lengthy period of time.

        Next, the circuit court found that the child had established a loving relationship with
plaintiff and that plaintiff had been the child’s primary care provider for a significant period
(MCL 722.1443(4)(d)). Again, plaintiff does not challenge this finding on appeal.

       Regarding the harm that might result to the child (MCL 722.1443(4)(f)), the trial court
found that “[t]here are some concerns about the parenting style held by Plaintiff if the Affidavit
of Parentage is not revoked.” The court stated it had more fully explored its concerns regarding
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the custody best interest factors. Those concerns included plaintiff’s capacity to provide the
child with guidance, plaintiff’s unstable living situation, plaintiff’s significant chronic illness,
and that the child had witnessed domestic violence while in plaintiff’s care.

         The record supported the court’s findings. Regarding plaintiff’s capability to provide the
child with guidance, the child’s grandmother, who lived on defendant’s property, testified that
plaintiff did not discipline the child and did not enforce any bedtime or routine with the child or
give him consequences. The child’s aunt testified that the child had a lot of discipline issues and
played rough with other children before he began living with intervenor. The grandmother
testified that plaintiff spoke to the child like an adult, and the aunt testified that plaintiff made
inappropriate adult comments in front of the child. Further, the grandmother testified that
plaintiff let the child play with inappropriate toys, like pennies, one of which got stuck in the
child’s throat, and that the child told her about shooting a .22 rifle and walking through the
woods with a handgun, even though he was only five years old. Plaintiff denied that he left the
child unsupervised. This Court defers to the trial court’s findings of credibility, and we will not
substitute our judgment for that of the trial court. MCR 2.613(C); Woodington v Shokoohi, 288
Mich App 352, 358; 792 NW2d 63 (2010). This conflicting testimony created a question of fact
for the circuit court to resolve.

        Regarding plaintiff’s unstable living situation, plaintiff testified that he and the child
moved between defendant’s home and the homes of plaintiff’s sister while defendant’s daughter
had a personal protection order against him. Plaintiff testified that he had been living at a
friend’s home for a year, and was looking for a more permanent place. Plaintiff briefly
reconciled with defendant and began living with her again in early 2016, but he moved out after
about three weeks. There was no dispute regarding plaintiff’s frequent moves.

        Regarding plaintiff’s illness and its effect on his ability to care for the child, the
grandmother testified that plaintiff passed out multiple times while caring for the child.
Defendant testified that plaintiff did not follow medical instructions and would pass out while
caring for the children. Plaintiff testified that he no longer had issues after his pancreas
transplant and that he took his medications as directed. Again, the conflicting testimony created
a question of fact regarding the effects of plaintiff’s health on his ability to parent the child.

        Regarding domestic violence, the grandmother testified that plaintiff would shout at
defendant’s daughter and shove her out the door an hour before the bus arrived, even in the
snow, that defendant had grabbed defendant’s daughter during an argument and was arrested,
that plaintiff and defendant had engaged in domestic violence while the child was present, and
that plaintiff had grabbed the child and thrown him onto a bed while angry. Plaintiff was
convicted of domestic violence against defendant’s daughter. Defendant testified that plaintiff
was overbearing with her other children, picking fights and engaging in domestic violence.
There was extensive testimony about plaintiff and defendant engaging in domestic violence in
front of the child during an incident that resulted in plaintiff locking himself and the child in their




                                                 -7-
truck.2 While the parties disputed the specifics, they did not dispute that they were violent in
front of the child. The circuit court’s findings regarding plaintiff’s domestic violence were not
clearly erroneous.

        Accordingly, the record supported each of the circuit court’s findings regarding the harm
that might occur to the child as a result of plaintiff’s parenting style if it did not revoke the
affidavit of parentage. We are not definitely and firmly convinced that it made a mistake when it
found that this factor favored revoking the affidavit of parentage.

         When making findings on the equities resulting from disrupting the father-child
relationship, the court found that the child had bonded well with intervenor and did not appear to
have significant separation anxiety with plaintiff or defendant. It found that plaintiff had
engaged in troubling actions by involving the child and defendant’s children in adult situations,
which was inappropriate parenting behavior. It also found that disrupting the child from the
father he had known from birth through age five would have a negative impact on the child, but
“from the trajectory of how things have gone, since disclosure, do not show a significant likely
[sic] of long-term harm.”

         Regarding the child not having separation anxiety, the child’s elementary school teacher
testified that the child separates very easily from plaintiff. Defendant testified that the child
appeared to simply accept that he had two fathers. Defendant testified that the child had adjusted
well to living with intervenor. The child’s foster care caseworker testified that intervenor and the
child appeared to have an appropriate bond and a normal father/son relationship. The facts
supporting the remainder of these findings have been previously discussed. Again, we are not
convinced that the lower court made a mistake when it made these findings because evidence in
the record supported them.

       Ultimately, balancing the revocation of paternity factors, we are not definitely and firmly
convinced that the circuit court made a mistake when it found that revoking plaintiff’s affidavit
of parentage would be in the child’s best interests.

       Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Deborah A. Servitto
                                                             /s/ Mark T. Boonstra




2
  Defendant had also been convicted of domestic violence, though defendant’s violence was
against someone not involved in the case and was not in front of the children.


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