In re Daniels Estate

837 N.W.2d 1, 301 Mich. App. 450
CourtMichigan Court of Appeals
DecidedJune 25, 2013
DocketDocket No. 311310
StatusPublished
Cited by12 cases

This text of 837 N.W.2d 1 (In re Daniels Estate) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Daniels Estate, 837 N.W.2d 1, 301 Mich. App. 450 (Mich. Ct. App. 2013).

Opinion

PER CURIAM.

Petitioner, Tonya Asbury, appeals as of right the probate court’s order, which removed her as personal representative of the Richard J. Daniels estate and replaced her with respondent, Jamie Leonard. We affirm.

The decedent, Richard Daniels, died on April 13, 2012. Asbury is the decedent’s biological daughter and was the initial personal representative. Leonard filed a petition alleging that he was decedent’s son and requesting that he be appointed the personal representa[452]*452tive. The probate court held an evidentiary hearing to determine: (1) whether Leonard was an heir within the meaning of MCL 700.2114(l)(b)(iii); and (2) whether to replace Asbury as the personal representative of the decedent’s estate.

At the hearing, the evidence established that Leonard was born while the decedent and Leonard’s mother were cohabiting; the two were subsequently married. Leonard’s birth certificate does not indicate the name of his father, but Leonard testified that the decedent was his father and that he believed he was the decedent’s biological child. In addition, respondent Ronda Custer, the decedent’s live-in girlfriend, testified that the decedent had introduced Leonard as his son and that Leonard referred to the decedent as “dad.” She said that she had lived with the decedent from about 2001 until his death and that during that time the decedent had never indicated that there was not a parent-child relationship between him and Leonard. The decedent allegedly told Leonard that it did not matter that the certificate was blank because Leonard was his son.

Both Asbury and her mother testified that the decedent had raised Leonard like he was his son, and Asbury also testified that Leonard called the decedent “dad.” However, she “truly and wholly” believed that Leonard was not the decedent’s biological child. She testified that the decedent never referred to Leonard as his biological child and that several family members had told her that Leonard was not the decedent’s child. Further, Asbury’s mother testified that the decedent once told her that Leonard was not his biological child. To determine paternity, a DNA test was conducted; at the time of the hearing the results were still pending.

At the conclusion of the hearing, the probate court did not find that Leonard was the decedent’s biological [453]*453child, but concluded that “the relationship, that the elements, as set forth by the statute have been satisfied in terms of determining that Mr. Leonard is the natural child of Mr. Daniels” because all the witnesses, including Asbury’s,

confirm[ed], unequivocally, that the decedent and Mr. Leonard have mutually acknowledged a relationship of parent and child that began, indeed, from the time that Mr. Leonard was a young child right through the death of the decedent. That fact is, and has not been refuted in any way, shape, or form, by any of the witnesses.

The probate court then granted the petition to remove Asbury as the personal representative and Leonard was appointed as the successor personal representative. Asbury appealed.

Asbury does not contest that there was sufficient evidence to establish that the decedent and Leonard had a mutually acknowledged relationship for the requisite time period. Instead, she argues that to establish a parent-child relationship pursuant to MCL 700.2114(l)(b)(iii), the court must first find that the man and the child have a biological relationship. Accordingly, we must interpret under what circumstances a person may be declared an heir pursuant to MCL 700.2114(l)(b)(iii), which is an issue of first impression.

“To determine the statute’s intent, the specific language of the statute must be examined.” In re Turpening Estate, 258 Mich App 464, 465; 671 NW2d 567 (2003). “In construing a statute, this Court should give every word meaning, and should seek to avoid any construction that renders any part of a statute surplus or ineffectual.” Id. “[T]o discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.” Robinson v City of Lansing, [454]*454486 Mich 1, 15; 782 NW2d 171 (2010). Provisions not included by the Legislature should not be included by the courts. Mich Basic Prop Ins Ass’n v Office of Fin & Ins Regulation, 288 Mich App 552, 560; 808 NW2d 456 (2010).

MCL 700.2114 provides in relevant part:

(1) 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. The parent and child relationship may be established in any of the following manners:
(a) If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.
(b) If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the child’s natural father for purposes of intestate succession if any of the following occur:
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(Hi) The man and child have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either.

[455]*455Asbury argues that a probate court must first determine that the child attempting to establish the parent-child relationship is a biological child before the court may then consider evidence of the mutually acknowledged relationship. This argument is inconsistent with the language of the statute.

MCL 700.2114(l)(b) provides that “[i]f a child is born out of wedlock ... a man is considered to be the child’s natural father for purposes of intestate succession” if any of the circumstances in subsections (i) through (pi) apply. The word “considered” is not defined in the statute. If a word is undefined by the statute, it must be given its plain and ordinary meaning. Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008). This Court may consult a dictionary if the Legislature has not provided a definition for a word used in a statute. Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279 (2012). According to Random House Webster’s College Dictionary (1997), “consider” means “to regard as or deem to be” or “to think, believe, or suppose.” Thus, a man “considered” to be a child’s natural father is someone who is regarded, deemed, believed, supposed, or thought of as the child’s natural father. Therefore, the plain language of the statute contemplates that, in some situations, a man may not be the child’s biological father, but he will nevertheless

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Cite This Page — Counsel Stack

Bluebook (online)
837 N.W.2d 1, 301 Mich. App. 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-daniels-estate-michctapp-2013.