In re A. R. WARSHEFSKI, also known as A. R. PIECHOTTE, Minor
No. 346965
STATE OF MICHIGAN COURT OF APPEALS
January 21, 2020
FOR PUBLICATION. St. Clair Circuit Court Family Division LC No. 18-000482-NC.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: K. F. KELLY, P.J., and BORRELLO and SERVITTO, JJ.
Respondent, mother of AR Warshefski, a minor, appeals as of right the trial court‘s order granting AR Warshefski‘s petition to change his name. For the reasons set forth in this оpinion, we affirm.
I. BACKGROUND
On September 14, 2018, AR Warshefski filed a petition to change his name. On October 31, 2018, respondent filed an answer to the petition requesting that the trial court deny the petition. The trial court held a hearing on the petition on December 10, 2018. AR Warshefski explained that he was seeking to change his surname because all of the family who he maintains a relationship with has the surname “Piechotte,” he lives with his father, Joseph Piechotte, and does not speak to respondent. Additionally, AR Warshefski stated that he would like to have the same name as his half siblings because he is the only one in his household with a different last name. After a review of the petition, the trial court appointed a lawyer guardian ad litem for AR Warshefski, who testified that AR Warshefski is 14 years old and his decision appears to be logical and genuine. The trial court found that the statutory basis in
I agree that the statutory basis under the applicable statute,
MCL 333.2872 1 has not been established. There has been no contact whatsoever between Ms. Warshefski and [AR Warshefski] for apparently the last three years. But the second part of the test that the Legislature has deemed аppropriate is for them to say that also there would have to be a failure for her to provide regular and substantial support, or to comply with the support order. The testimony from both these parties at the time I saw everybody the last time was that she had been supporting [AR Warshefski], paying her child support the way it‘s required. And so the statutory basis is not established.However, in Michigan there are common[-]law rights. There is caselaw that recognizes that this statute does not eliminate the common law with regard to name changes. So this Court also has the ability to make a name change if I believе that it would be in [AR Warshefski‘s] best interest for me to do so.
This appeal then ensued.
II. SUBJECT-MATTER JURISDICTION
On appeal, respondent brings two challenges to the trial court‘s ruling. Respondent‘s first argument on appeal is that the trial court‘s subject-matter jurisdiction was limited to the specific requirements of
We first note that respondent did not cite any authority in support of this argument. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis fоr his claims, nor may he give issues cursory treatment with little or no citation of supporting authority.” Houghton ex rel Johnson v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003) (citations omitted). “An appellant‘s failure to properly address the merits of his assertion of error constitutes
The issue of whether a court had subject-matter jurisdiction is a question of law which this Court reviews question of law de novo. Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003). It is well established that “[c]ircuit courts are courts of general jurisdiction.” In re Harper, 302 Mich App 349, 352-353; 839 NW2d 44 (2013), quoting Papas v Gaming Control Bd, 257 Mich App 647, 657; 669 NW2d 326 (2003). “Subject-matter jurisdiction ‘is the right of the court to exercise judiсial power over a class of cases, not the particular case before it.’ ” Teran v Rittley, 313 Mich App 197, 205; 882 NW2d 181 (2015), quoting Grebner v Oakland Co Clerk, 220 Mich App 513, 516; 560 NW2d 351 (1996). It is the court‘s power to preside over the type or kind of case pending, not the power to determine the particular cause of action or particular facts before the court. Id.
Under
Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.
It is presumed that the circuit courts have subject-matter jurisdiction “unless jurisdiction is expressly prohibited or given to another court by constitution or statute.” In re Wayne Co Treasurer, 265 Mich App 285, 291; 698 NW2d 879 (2005).
This Court addressed a similar challenge to the circuit court‘s subject-matter jurisdiction to grant an adoption outside of the Probate Code in Usitalo v Landon, 299 Mich App 222, 228; 829 NW2d 359 (2012). In Landon, the аppellant argued that the circuit court lacked subject-matter jurisdiction to grant a same-sex adoption because the Michigan Adoption Code did not provide for same-sex adoption. Id. at 229. The appellant furthered argued that the circuit court only had subject-matter jurisdiction to prеside over adoptions granted pursuant to the Probate Code. Id. This Court held that the appellant‘s understanding of subject-matter jurisdiction was incorrect because “subject-matter jurisdiction concerns only a court‘s authority to exercise judicial power over broad classes of cases and does not consider particular cases within the broad class.” Id. at 230.
Respondent similarly argues that because
This Court has previously held that
It is uncontested that subject-matter jurisdiction over common-law name changes has not been expressly conferred in any other court by the Michigan Legislature. It is further uncontested that circuit courts have never been expressly prohibited from granting common law name changes. Because
III. NAME CHANGE BASED ON COMMON LAW
Next, respondent argues that the trial сourt erred in granting the petition based on the common law because the trial court did not have the authority to “sua sponte” grant the petition under the common law after finding that the requirements in
This Court reviews a trial court‘s grant of a legal name change pursuant to
As previously stated, this Court has long recognized two methods to effectuate a name change under Michigan law. Piotrowski at 216. An individual may adopt any name he or she wishes, without resort to any court or legal proceeding, provided it is not done for fraudulent purposеs, under the common law. Id. Under the common law, and in the absence of fraud, a minor may also adopt any name he or she wishes provided they are of sufficient age and maturity to make an intelligent choice. Rappleye, 183 Mich App at 398.
Alternatively, an individual may petition the court for a name change pursuant to
If the minor is 14 years old or older, written consent to change name must be signed by the minor, in the presence of the court, and should be filed with the court before an order changing the name of the minor is entered.
[t]he name of a minor may be changed pursuant to subsection (5) or (6) with the consent or signature of the custodial parent upon notice to the noncustodial parent as provided in supreme court rule and after a hearing in either of the following circumstances:
(a) If both of the following occur:
(i) The other parent, having the ability to support or assist in supporting the child, has failed or neglected to provide regular and substantial support for the child or, if a support order has been entered, has failed to substantially comply with the order, for 2 years or more before the filing of the petition.
(ii) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for 2 years or more before the filing of the petition.
At the time of filing the petition, AR Warshefski was 14 years old. AR Warshefski signеd the petition as the petitioner and Piechotte signed as the parent/guardian of AR Warshefski. After a hearing on the petition, the trial court had AR Warshefski sign a written consent form in the presence of the trial court in accordance with
Understandably, respondent does not take issue with the trial court‘s holding that the statutory requirements of
Having established that petitioner maintained a common law right to a name change, the next issue we consider is whether the trial court provided a proper basis for granting the petition. In deciding whether to grant the petition, the trial court employed a “best interest test.” While we note the dearth of case law on this point, this Court has stated that the trial court should look to the best interest test in deciding whether to grant a minor a legal name change. In Rappleye, 183 Mich App at 399, this Court held: “[W]e cannot conclude on this record that the trial court abused its discretion by determining that it is in the minor child‘s best interest to allow her to continue using the name Gregory,
In accord with our holding in Spiering, here, the trial court employed the best interest test as its basis for granting the petition.
The trial court began its best interests test by pointing out that neither parent was аble to agree on how to resolve the issue of AR‘s proper last name, and given the level of animosity that each parent still holds against the other, absent court intervention, the issue would never be resolved. The trial court appointed a lawyer guardian ad litem to interview the minor and inform thе trial court of those discussions. The guardian ad litem testified that after interviewing AR, it was clear that AR wanted the name change because he identified with and lived with members of his father‘s family, all of whom had the last name of Piechotte. The trial court also found, after interviewing AR that given the length of time since he last had any contact with his mother---approximately three years---and the dearth of contact with his mother‘s family, AR identified as a member of the Piechotte family rather than a member of the Warshefski family. The trial court also found that AR lived in a household where everyone but him had the last name of Piechоtte.
The record also reveals that the trial court gave all parties to these proceedings ample opportunities to state their particular reasons for granting or denying the petition. To ensure no undue influence was exerted over the minor child, the trial court appointеd a lawyer guardian ad litem who testified before the trial court that there was no evidence AR was being manipulated or coerced into bringing a petition for a name change. From this record, we cannot assign any error to the trial court‘s factual findings, and we note that respondent has failеd to establish a legally sufficient basis for a finding by this Court that the trial court committed any factual error.
Similarly, in its legal rulings, the trial court correctly held that
Affirmed. Petitioner having prevailed in full may tax costs.
/s/ Stephen L. Borrello
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto