Soumis v. Soumis

553 N.W.2d 619, 218 Mich. App. 27
CourtMichigan Court of Appeals
DecidedSeptember 27, 1996
DocketDocket 184498
StatusPublished
Cited by22 cases

This text of 553 N.W.2d 619 (Soumis v. Soumis) 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
Soumis v. Soumis, 553 N.W.2d 619, 218 Mich. App. 27 (Mich. Ct. App. 1996).

Opinions

[29]*29Per Curiam.

Defendant appeals as of right the circuit court’s judgment of divorce entered on January 5, 1995. The court awarded the parties joint legal custody of their two minor children, Delina Soumis, bom on February 17, 1981, and Jessie Soumis, bom on December 14, 1988. It awarded plaintiff full physical custody of Delina and ordered the parties to share physical custody of Jessie, with the child to reside with each party for alternating six-month periods. We affirm.

The parties were married on November 4, 1978. Plaintiff filed for divorce on July 28, 1993. On March 14, 1994, following 2 V2 days of testimony, the court awarded temporary custody of the two minor children. On September 12, 1994, two days before the final hearing, defendant moved for leave to amend her pleadings and for a continuance. Defendant raised for the first time the issue of paternity with regard to Jessie. She requested that the court order plaintiff to submit blood samples for testing and that she be allowed to present evidence of a human leukocyte antigen analysis (hla), a blood test. Following oral arguments, the court denied defendant’s motion for a continuance. The court granted the motion for leave to amend because “otherwise the defendant would be precluded from presenting evidence upon which this Court might. . . reconsider its ruling as to the request for continuance to obtain the blood tests.”

Defendant testified that at the time of Jessie’s conception, which would have occurred sometime in January through March 1988, she and plaintiff were not having sexual relations, although they were living together as husband and wife. She was sexually involved with a man named Rodney Franklin, whom [30]*30she believed to be Jessie’s father. She met Franklin in January 1988 and immediately became sexually involved with him. Their relationship ended in June, when she and plaintiff reconciled. Plaintiff, however, testified that defendant told him that she met Franklin when she began a new job in the latter part of March.

Although defendant claimed that she and plaintiff did not have sexual relations during the period when the conception occurred, she admitted that on at least two occasions she and plaintiff had sexual relations at a honeymoon suite at a local casino. She admitted that those days could have been in the early months of 1988.

Defendant claimed that she told plaintiff that he was not the father when she informed him of her pregnancy in April 1988, but that he had never believed her. Defendant also claimed that plaintiff admitted to third parties that he was not Jessie’s father. Plaintiff stated that the trial motion was the first time since before Jessie’s birth that the subject of his paternity had been mentioned.

Plaintiff testified that he believed Jessie to be his daughter and that she looked to him as a parent. Although defendant told him that the child might not be his, plaintiff believed Jessie to be his child on the basis of her birth date and the fact that she appeared to be a full-term baby. Plaintiff maintained that the parties ceased having sexual relations only after defendant told him of her pregnancy and relationship with Franklin.

Defendant admitted that plaintiff was the only father that Jessie knew. The man she claimed was the child’s biological father had died a year or two after [31]*31Jessie was bom. She claimed that she mentioned the issue of paternity because she wanted plaintiff to know that he was not Jessie’s father. She realized that it could be damaging to the child to find out at this point that plaintiff was not her father.

In it’s opinion, the trial court stated:

[E]vidence was presented from which it could be found that notwithstanding the presumption that plaintiff is Jessie’s biological father, he actually is her biological father. Furthermore . . . there was more than ample evidence presented to satisfy the three part test postulated in Atkinson vs Atkinson [160 Mich App 601; 408 NW2d 516 (1987)] and find Mr. Soumis to be the equitable parent of Jessie. Therefore, since the presentation of the additional evidence urged by defendant would not alter this Court’s finding that sufficient other credible evidence exists by which plaintiff could be found to be Jessie’s biological father, reopening of the proofs would be futile. Equally futile would be the requirement that the parties submit to blood tests since even if plaintiff were found not to be Jessie’s natural father he is clearly her “equitable parent” as defined by the Court in Atkinson.
[T]his Court finds it absolutely abhorrent that Mrs. Soumis, who did not raise the issue [of paternity] in any of her pleadings throughout this lengthy proceeding, and who did not raise the issue during the two and one-half day hearing on the question of temporary custody, in the midst of trial, and in both a proceeding and in documents open to the public, asserted in some detail that plaintiff was not Jessie’s father while identifying another, who is now deceased and cannot speak from the grave, as her biological father. This Court can think of no way in which Jessie would be benefited by her mother’s allegations and disclosures but there are many ways in which she is likely to be damaged by them. . . . This Court concludes that Mrs. Soumis’ [32]*32actions, while within her right, were misguided and showed a callous disregard for Jessie’s welfare.

Defendant first argues that the trial court erred in refusing to grant a continuance to allow the parties to submit to blood testing. We disagree. The ruling on a motion for a continuance is discretionary and is reviewed for an abuse of discretion. In re Jackson, 199 Mich App 22, 28; 501 NW2d 182 (1993).

“A motion for adjournment must be based on good cause, and a court, in its discretion, may grant an adjournment to promote the cause of justice.” Zerillo v Dyksterhouse, 191 Mich App 228, 230; 477 NW2d 117 (1991). Additionally, MCR 2.503(C)(1) requires that a motion for adjournment based on the unavailability of evidence “must be made as soon as possible after ascertaining the facts.” In the instant case, defendant testified that she had believed from the time of Jessie’s birth that plaintiff was not the child’s father. She offered no plausible explanation for waiting until a few days before the final hearing to raise the issue.1

Furthermore, plaintiff’s request was not made for good cause. Contrary to plaintiff’s argument, this case is distinguishable from In re Flynn, 130 Mich App 740; 344 NW2d 352 (1983).2 Unlike the facts in Flynn, the instant case does not involve two men who were-each vying for paternity. Here, there was sufficient [33]*33evidence that plaintiff was the child’s biological father. Moreover, the court was presented with the choice of either leaving a firmly established paternal relationship or risking the destruction of that relationship by ordering blood tests that could leave the child essentially fatherless. We therefore conclude that defendant’s motion was not timely and was not made for good cause. The trial court did not abuse its discretion in denying defendant’s motion.

Defendant next argues that the trial court erred in applying the equitable parent doctrine in favor of plaintiff because he knew before the child’s birth that he might not be the father and there was no determination whether he is the child’s biological father.

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Soumis v. Soumis
553 N.W.2d 619 (Michigan Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
553 N.W.2d 619, 218 Mich. App. 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soumis-v-soumis-michctapp-1996.