Opinion
No. 346965
01-21-2020
IN RE A. R. WARSHEFSKI, also known as A. R. Piechotte, Minor, Joseph Piechotte, Petitioner-Appellee, v. Debra S. Warshefski, Respondent-Appellant.
Brandon R. McNamee, PLC (by Brandon R. McNamee) for respondent.
Brandon R. McNamee, PLC (by Brandon R. McNamee) for respondent.
Before: K. F. Kelly, P.J., and Borrello and Servitto, JJ.
Borrello, J.
Respondent, Debra S. Warshefski, the mother of minor AR Warshefski, appeals as of right the trial court's order granting AR's petition to change his name. For the reasons set forth in this opinion, we affirm. I. BACKGROUND
On September 14, 2018, AR filed a petition to change his surname from Warshefski to Piechotte. 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 explained that he was seeking to change his surname because all the family members with whom he maintains a relationship have the surname "Piechotte"; he lives with his father, Joseph Piechotte; and he does not speak with respondent. Additionally, AR 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; the lawyer-guardian ad litem testified that AR is 14 years old and that his decision appears to be logical and genuine. The trial court concluded that the statutory basis in MCL 711.1 for granting a name change had not been established but ultimately granted the petition, stating:
I agree that the statutory basis under the applicable statute, MCL 333.2872 [ ] has not been established. There has been no contact whatsoever between Ms. Warshefski and [AR] for apparently the last three years. But the second part of the test that the Legislature has deemed appropriate 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],
It appears the trial court misspoke when it referred to MCL 333.2872 and, rather, intended to refer to MCL 711.1. MCL 333.2872 concerns the procedure for changing the surname of a child on a birth certificate.
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 case law 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 believe that it would be in [AR'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 is that the trial court's subject-matter jurisdiction was limited to the specific requirements of MCL 711.1 and that the trial court, therefore, did not have subject-matter jurisdiction to rule on a common-law name change. For the reasons set forth in this opinion, we find no merit in this argument.
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 for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority." Houghton v. Keller , 256 Mich. App. 336, 339, 662 N.W.2d 854 (2003) (citations omitted). "An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." Id. at 339-340, 662 N.W.2d 854 However, in order to facilitate a final decision in this matter, we will address the issue despite respondent's failure to properly support her argument.
The issue of whether a court has subject-matter jurisdiction is a question of law, which this Court reviews de novo. Atchison v. Atchison , 256 Mich. App. 531, 534, 664 N.W.2d 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 N.W.2d 44 (2013), quoting Papas v. Gaming Control Bd. , 257 Mich. App. 647, 657, 669 N.W.2d 326 (2003) (brackets omitted). "Subject-matter jurisdiction ‘is the right of the court to exercise judicial power over a class of cases, not the particular case before it.’ " Teran v. Rittley , 313 Mich. App. 197, 205, 882 N.W.2d 181 (2015), quoting Grebner v. Oakland Co. Clerk , 220 Mich. App. 513, 516, 560 N.W.2d 351 (1996). Stated another way, 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 MCL 600.605, the Michigan Legislature vested subject-matter jurisdiction in the circuit courts as follows:
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 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 N.W.2d 879 (2005). MCL 600.1021(1)(d) grants the family division of a circuit court sole and exclusive jurisdiction over cases involving a change of name as provided in Chapter XI of the Probate Code, MCL 711.1 to MCL 711.3. MCL 711.1(1) grants the family division of a circuit court the authority to enter an order to change an individual's name. In Usitalo v. Landon , 299 Mich. App. 222, 228, 829 N.W.2d 359 (2012), this Court addressed a similar challenge to the circuit court's subject-matter jurisdiction to grant an adoption outside the Probate Code. In Usitalo , the appellant 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, 829 N.W.2d 359. The appellant furthered argued that the circuit court only had subject-matter jurisdiction to preside over adoptions granted under 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, 829 N.W.2d 359.
Respondent similarly argues that because MCL 600.1021(1)(d) gives the family division of the circuit court jurisdiction over cases involving name changes granted under the Probate Code, the trial court lacked subject-matter jurisdiction to grant a common-law name change. However, subject-matter jurisdiction concerns the court's authority to hear a broad class of cases. As was the case in Usitalo , respondent's argument conflates subject-matter jurisdiction with a court's exercise of its jurisdiction. Whether petitioner maintained the right to seek a name change under the common law after the trial court concluded he did not meet the requirements for doing so under MCL 711.1 had no effect on whether the court continued to have subject-matter jurisdiction because a common-law name change is within the same class of cases as a name change granted under the Probate Code. This Court has held that MCL 711.1 does not abrogate or supersede the common law. In Piotrowski v. Piotrowski , 71 Mich. App. 213, 216, 247 N.W.2d 354 (1976), this Court explained: "In Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition, change the name of any person. MCLA 711.1 ; MSA 27.3178(561). Such change of name statutes do not abrogate or supersede the common law. To the contrary, they affirm the common law right and afford an additional method by which a name change may be effected as a matter of public record."
It is uncontested that subject-matter jurisdiction over common-law name changes has not been expressly conferred on 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 MCL 711.1 does not abrogate or supersede the common law, the trial court has subject-matter jurisdiction to hear and grant petitions for a name change under both MCL 711.1 and the common law. Accordingly, respondent is not entitled to relief on this issue.
III. NAME CHANGE UNDER THE COMMON LAW
Next, respondent argues that the trial court lacked the authority to "sua sponte" grant the petition under the common law after concluding that respondent did not meet the requirements for a name change under MCL 711.1.
This Court reviews for an abuse of discretion a trial court's grant of a legal name change under MCL 711.1. Rappleye v. Rappleye , 183 Mich. App. 396, 399, 454 N.W.2d 231 (1990). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Rettig v. Rettig , 322 Mich. App. 750, 754, 912 N.W.2d 877 (2018) (quotation marks and citation omitted). However, the specific question of whether the trial court could properly grant a minor's name change under the common law, despite the fact that the petition was filed under MCL 711.1, is a question of law. This Court reviews de novo questions of law. Eickelberg v. Eickelberg , 309 Mich. App. 694, 698, 871 N.W.2d 561 (2015).
As previously stated, this Court has long recognized two methods for effectuating a name change under Michigan law. Piotrowski , 71 Mich.App. at 216, 247 N.W.2d 354. Under the common law, 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 purposes. Id. Relatedly, under the common law, and in the absence of fraud, a minor may adopt any name he or she wishes provided he or she is of sufficient age and maturity to make an intelligent choice. Rappleye , 183 Mich. App. at 398, 454 N.W.2d 231 (quotation marks omitted).
Alternatively, an individual may petition the court for a name change under MCL 711.1. Piotrowski , 71 Mich. App. at 216, 247 N.W.2d 354. MCL 711.1(1) provides that the family division of the circuit court may enter an order to change the name of an individual who has been a resident of the county for at least one year and petitions the court in writing. The petition must demonstrate a "sufficient reason for the proposed change and that the change is not sought with a fraudulent intent." Id. If the petitioner is a minor, the petition must be signed by the minor's mother and father jointly or by one of the minor's parents if there is only one legal parent available to give consent. MCL 711.1(5).
If a minor is 14 years of age or older, a written consent to change his or her name must be signed by the minor in the presence of the court and must be filed with the court before an order changing the name of the minor is entered. MCL 711.1(5) ; MCR 3.613(B). MCL 711.1(7) provides, in relevant part:
The 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 was 14 years old. AR signed the petition as the petitioner and Piechotte signed as the parent/guardian of AR. After a hearing on the petition, the trial court had AR sign a written consent form in the presence of the trial court in accordance with MCL 711.1(5) and MCR 3.613(B). As previously indicated, the trial court then concluded that "the statutory basis under the applicable statute, [ MCL 711.1,] has not been established."
Understandably, respondent does not take issue with the trial court's holding that the statutory requirements of MCL 711.1(7) were not met because while respondent failed to visit, contact, or communicate with AR, she had maintained her support obligations. What respondent does take issue with is the trial court's conclusion that petitioner maintained a common-law right to a name change irrespective of the filing of a petition citing MCL 711.1. However, contrary to respondent's assertions, this Court previously recognized that MCL 711.1 does not abrogate or supersede the common law, a holding we deem important to reaffirm:
In Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition, change the name of any person. MCLA 711.1. ...Such change of name statutes do not abrogate or supersede the common law. To the contrary, they affirm the common law right and afford an additional method by which a name change may be effected as a matter of public record. [ Piotrowski , 71 Mich. App. at 216, 247 N.W.2d 354.]
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 caselaw on this point, this Court previously approved a trial court's application of the best-interest test in deciding whether to grant a minor's request for a legal name change. In Rappleye , 183 Mich. App. at 399, 454 N.W.2d 231, this Court stated: "[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, if she so desires .... In the present case, the trial court's decision was clearly based on the facts and on what was right and equitable under the circumstances." Recognizing that the Rappleye Court did not explicitly adopt the best-interest test, this Court did so in Garling v. Spiering , 203 Mich. App. 1, 4, 512 N.W.2d 12 (1993), stating: "Although admittedly this Court in Rappleye did not formally adopt the ‘best interest’ test for the purpose of resolving these types of disputes, we clearly approved of its use by our trial courts. In light of the specific issue raised in this case, we now hold that parental disputes regarding a child's surname should be resolved in accordance with the best interests of the child."
In accordance with our holding in Garling , here, the trial court employed the best-interest test as its basis for granting the petition. The trial court began its analysis by noting that neither parent was able to agree on how to resolve the issue of AR's proper last name and that given the level of animosity between the parents, absent court intervention, the issue would never be resolved. The trial court appointed a lawyer-guardian ad litem to interview the minor and inform the 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 as a member of the Warshefski family. The trial court also found that AR lived in a household in which everyone but him had the last name of Piechotte.
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 appointed 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 failed 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 MCL 711.1 did not provide a basis for granting the name change because at the time of the filing of the petition, respondent was providing support for AR. Relying on this Court's prior decisions, the trial court next concluded that statutory enactments like MCL 711.1 did not abrogate an individual's right to change his or her name under the common law. Piotrowski , 71 Mich. App. at 216, 247 N.W.2d 354. Next, by employing the best-interest test in reaching its decision to grant the petition, the trial court followed prior rulings of this Court. Garling , 203 Mich. App. at 4, 512 N.W.2d 12. On this record, we find no legal error and the trial court did not abuse its discretion by granting AR's petition. Accordingly, respondent is not entitled to relief.
Affirmed. Petitioner, having prevailed in full, may tax costs. MCR 7.219(A).
K. F. Kelly, P.J., and Servitto, J., concurred with Borrello, J.