Nicholas David Burnett v. Tracy Lynn Ahola
338618
| Mich. Ct. App. | Dec 7, 2017Background
- JDA (b. June 18, 2014) was conceived during Tracy Ahola’s marriage; genetic testing showed Derek Ahola was not the biological father. Plaintiff Burnett sought filiation under the Revocation of Paternity Act (ROPA).
- On November 3, 2015, the trial court entered a ROPA judgment establishing Burnett as JDA’s legal and biological father; this Court affirmed that judgment on appeal on May 26, 2016.
- After the ROPA judgment, the trial court incrementally increased Burnett’s parenting time and the parties ultimately signed a stipulated custody and parenting-time order (Sept. 30, 2016) awarding shared legal and physical custody.
- In June 2016 defendants obtained audio recordings in which Burnett allegedly admitted to lying and inducing false testimony at the ROPA trial; they did not move for relief from judgment until October 24, 2016.
- The trial court denied defendants’ motion for relief from judgment (MCR 2.612(C)(1)(c)), concluding defendants waived the fraud claim by consenting to expanded parenting time and the stipulated custody order while in possession of the recordings. Defendants’ motion for reconsideration was also denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction over appeal | Order dismissing motion for relief affected custody so appeal is of right | Same | Court has jurisdiction under MCR 7.202(6)(a)(iii) (order affected where child lived) |
| Whether trial court erred by denying relief from judgment for alleged fraud/perjury | Burnett: defendants waived claim by agreeing to custody after learning of recordings; judicial estoppel/waiver bar relief | Defendants: recordings show intrinsic fraud/perjury entitling them to relief under MCR 2.612(C)(1)(c); trial court needed evidentiary hearing | Court held defendants waived the claim; denial of relief affirmed |
| Whether an evidentiary hearing or consideration of transcripts was required | Burnett: not necessary because material facts undisputed and waiver was legal issue | Defendants: transcripts and hearing required to resolve whether perjury occurred | Court held no hearing required because facts (when recordings obtained and subsequent consent) undisputed; waiver dispositive |
| Whether trial court abused discretion denying reconsideration (Derek’s non-signature) | Burnett: both defendants waived; Derek’s failure to sign did not preserve his claim | Defendants: Derek didn’t sign consent order so he could not waive | Court held denial not an abuse of discretion; Derek had opportunity and made no contemporaneous preservation; waiver applied to both |
Key Cases Cited
- Madson v Jaso, 317 Mich. App. 52 (court rule: post-judgment orders affecting where child lives are appealable)
- Daoud v De Leau, 455 Mich. 181 (perjury constitutes intrinsic fraud under MCR 2.612)
- Reed Estate v Reed, 293 Mich. App. 168 (implied waiver shown by decisive, unequivocal conduct)
- Nuculovic v Hill, 287 Mich. App. 58 (scope of MCR 2.116(C)(10) as testing factual support)
- Wardell v Hincka, 297 Mich. App. 127 (standard review for appellate jurisdiction issues)