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Sheardown v. Guastella

Court of Appeals of Michigan

May 15, 2018

ANITA L. SHEARDOWN, Plaintiff-Appellant,
JANINE GUASTELLA, Defendant-Appellee.

          Oakland Circuit Court Family Division LC No. 2016-846855-DC

          Before: Murray, C.J., and Fort Hood and Gleicher, JJ.

          MURRAY, C. J.

         In this child custody action brought pursuant to the Child Custody Act, MCL 722.21 et seq., plaintiff appeals as of right from an order granting summary disposition in favor of defendant. The trial court dismissed plaintiff's case on the basis that she lacked standing to seek custody. But, after a remand from this Court, the trial court held that the definition of "parent" contained within MCL 722.22(i) was unconstitutional as applied to plaintiff. Nonetheless, the court concluded that its ruling would not be applied retroactively, so the court maintained its ruling that plaintiff could not pursue this custody action. We hold that MCL 722.22(i) is not unconstitutional as applied to plaintiff, and affirm the trial court's dismissal of her complaint.


         This case arises from plaintiff and defendant's now terminated romantic relationship. During their relationship defendant entered into a contract (the agreement) with plaintiff and a sperm donor, who agreed to assist defendant with becoming pregnant. In the agreement, the donor promised that he would not "try to become a legal part of any child born from [the] inseminations, or ask for custody or visitation rights at any time." The agreement also contained a statement that plaintiff and defendant "intend[ed] to be legal parents of any child born as a result of [the] inseminations, " and that "they will file a petition for [plaintiff] to adopt the child as soon as possible after its birth." Ultimately, defendant's child, MEG, was born as a result of this agreement.

         Plaintiff and defendant's romantic relationship continued for some time after MEG's birth. However, plaintiff and defendant never married, nor did plaintiff seek to adopt MEG. Ultimately, plaintiff and defendant's relationship ended no later than February 2014.[1] In 2016 plaintiff filed a complaint in the trial court to initiate a child custody dispute concerning MEG, wherein plaintiff requested custody of, and parenting time with, MEG on the grounds that it was in MEG's best interests as she had acted as his parent for a number of years. Defendant filed an answer to plaintiff's complaint, and subsequently moved for summary disposition. The trial court ultimately granted defendant's motion on the basis, as noted earlier, that plaintiff lacked standing to pursue the action.

         On appeal, plaintiff argued that she should be considered a parent under the agreement and, therefore, had standing to maintain the custody action. In that regard, she argued that the fundamental right to parent recognized in Troxel v Granville, 530 U.S. 57; 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000), was violated by the court's refusal to allow her to seek custody of MEG. After oral argument before this Court, a majority entered an order remanding this case "for consideration of whether MCL 722.22(i) is constitutional as applied to the facts of this case, in light of Obergefell v Hodges, ___ U.S. ___; 135 S.Ct. 2584; 192 L.Ed.2d 609 (2015), and Pavan v Smith, ___ U.S. ___; 137 S.Ct. 2075; 198 L.Ed.2d 636 (2017)." Sheardown v Guastella, unpublished order of the Court of Appeals, entered November 14, 2017 (Docket No 338089).[2]

         As it was required to do, on remand, the trial court issued an opinion and order addressing what the majority asked of it, whether MCL 722.22(i) is constitutional as applied to the facts of this case, in light of Obergefell and Pavan. The trial court held that it was, but that it did not affect the ultimate disposition because the court could not go back in time and determine whether the parties would have married had it not been for the state law precluding them from doing so.[3]


         Generally, this Court reviews de novo questions of constitutional law. Mayor of Detroit v Arms Technology, Inc, 258 Mich.App. 48, 57; 669 N.W.2d 845 (2003), citing People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). We embrace the presumption that statutes are constitutional, and the party challenging the constitutional validity of a statute bears a heavy burden. Phillips v Mirac, Inc, 470 Mich. 415, 422-423; 685 N.W.2d 174 (2004).

         This as-applied challenge to the constitutional validity of MCL 722.22(i) must be considered in light of the facts and circumstances existing at the time of the complaint's filing.[4]See generally Miller v Allstate Ins Co, 481 Mich. 601, 606; 751 N.W.2d 463 (2008) and Friends of the Earth, Inc v Laidlaw Environmental Servs (TOC), Inc, 528 U.S. 167, 189; 120 S.Ct. 693; 145 L.Ed.2d 610 (2000). Plaintiff's complaint was filed on October 7, 2016, more than a year after the Obergefell Court struck down Michigan's constitutional and statutory prohibitions on same-sex marriage. Thus, when considering the constitutionality of MCL 722.22(i) as applied to these parties, it must be recognized that at the time the case was filed (1) Michigan was required to recognize same-sex marriages, (2) our Court had already held that the definition of "parent" under MCL 722.22(i) did not run afoul of Obergefell because "that definition applies equally to same-sex and opposite-sex married couples, "[5] (3) the parties never availed themselves of the marriage laws of other states that recognized same-sex marriages, and (4) the parties' relationship had, at a minimum, ended some two-and-a-half years before, and approximately a year-and-a-half prior to the issuance of Obergefell.

         In light of these undisputed factual and legal propositions, and when applying the governing law under the equal protection and due process clauses of the federal Constitution, [6] it is apparent that there is no constitutional infirmity to MCL 722.22(i). In Barrow v Detroit Election Comm, 301 Mich.App. 404, 419-420; 836 N.W.2d 498 (2013), our Court set forth the standards governing the equal protection inquiry:

In undertaking constitutional analysis, we are mindful-as was the circuit court-that legislation challenged on equal protection grounds is presumed constitutional and the challenger has the burden to rebut that presumption. Boulton v Fenton Twp, 272 Mich.App. 456, 467; 726 N.W.2d 733 (2006). Courts examine three factors when determining whether a law violates the Equal Protection Clause: "the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification." Dunn v Blumstein, 405 U.S. 330, 335; 92 S.Ct. 995; 31 L.Ed.2d 274 (1972).
When evaluating an equal protection challenge to a provision, courts apply one of three traditional levels of review. Heidelberg Bldg, LLC v Dep't of Treasury, 270 Mich.App. 12, 18; 714 N.W.2d 664 (2006). Traditionally, the rational basis test applies where no suspect factors are present or where no fundamental right is implicated. Kyser v Kasson Twp, 486 Mich. 514, 522 n 2; 786 N.W.2d 543 (2010). Under this test, a statute is constitutional if it furthers a legitimate governmental interest and if the challenged statute is rationally related to achieving that interest. Boulton, 272 Mich.App. at 467. Thus, restrictions are set aside only if they are based on reasons unrelated to the state's goals and no grounds can be conceived to justify them.
The most heightened review, strict scrutiny, applies when the provision interferes with a fundamental right or classifies based on factors that are suspect, such as race, national origin, or ethnicity. Rose v Stokely, 258 Mich.App. 283, 300; 673 N.W.2d 413 (2003). Under a strict scrutiny analysis, the government may not infringe upon a fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest. In re B & J, 279 Mich.App. 12, 22; 756 N.W.2d 234 (2008).

         There are two reasons why plaintiff cannot establish a violation of the equal protection and due process clauses of the federal Constitution. First, Obergefell and its limited progeny do not have any impact on plaintiff as she was never married, and she is not asking the courts to create a marriage post hoc. Second, under an equal protection analysis, plaintiff is simply not subject to dissimilar treatment under the statute compared to a heterosexual unmarried individual.


         As noted above, the parties were never married and the plaintiff has disavowed any interest (as has the dissent) in going back in time in an attempt to determine whether the parties would have been married had they had the legal option to do so prior to Obergefell. This is important because Obergefell addressed only the fundamental right to marry protected by the liberty interest of the due process clause, and the many state laws that did not recognize that right relative to same-sex couples. And, as Pavan, ___ U.S. at ___; 137 S.Ct. at 2078 recognized, the overarching principle from Obergefell requires states to afford the same marriage-related benefits to same-sex married couples that are afforded to heterosexual married couples. See also McLaughlin v Jones, 243 Ariz 29, ___; 401 P.3d 492, 497 (2017) (reasoning that "the benefits attendant to marriage were expressly part of the [Obergefell] Court's rationale for concluding that the Constitution does not permit states to bar same-sex couples from marriage 'on the same terms' "), quoting Obergefell, ___ U.S. at ___; 135 S.Ct. at 2607 (emphasis added); In re Estate of Carter, ___ Pa ___, ___; 159 A.3d 970, 977 (2017) (Obergefell was limited to recognizing the constitutional right of same-sex couples to marry under state law and not to be subsequently denied the same state law privileges afforded opposite-sex married couples). In other words, Obergefell requires states to recognize a legal marriage between individuals of the same sex and, as Pavan reveals, once the state recognizes these marriages it cannot deny government benefits that are offered to heterosexual married couples. And that is why our Court, with respect to this very statute, concluded that MCL 722.22(i) applies equally to same-sex and heterosexual married couples. Stankevich v Milliron (On Remand), 313 Mich.App. 233, 237-238 n 2; 882 N.W.2d 194');">882 N.W.2d 194 (2015).

         But the parties were never married. They had the option to marry in several different states while they were in a relationship, but for whatever reason (and they offer conflicting ones), they did not. Nor did plaintiff ever seek to adopt MEG, even though that legal right existed after Obergefell was decided, see Mabry v Mabry, 499 Mich. 997, 998-999 (2016) (McCormack, J., dissenting), most likely because the parties' relationship had ended years prior. Consequently, plaintiff is not in a position to argue that she was denied a benefit granted to a heterosexual married person, as she was never married to defendant. As a result, the liberty interest in the right to marry which was extended to same-sex couples in Obergefell simply does not come into play.


         As noted, the equal protection clause generally prohibits the government from treating similar persons differently without a valid reason to do so. See In re Parole of Hill, 298 Mich.App. 404, 420-422; 827 N.W.2d 407 (2012) (recognizing the compelling state interest and rational basis tests). If possible, we must construe a statute in a constitutional manner. See In re Rood, 483 Mich. 73, 121; 763 N.W.2d 587 (2009) (opinion by Corrigan, J.); People v Wilson, 230 Mich.App. 590, 593-594; 585 N.W.2d 24 (1998). What is dispositive to this constitutional argument is that a male in an opposite-sex relationship could also meet the same fate as plaintiff, and thus receive the same treatment as plaintiff under the statute. For example, suppose the female in an opposite-sex relationship becomes pregnant with a third parties' child, but once born, the male in the relationship treats the child as his own. Once the relationship ends, the male would be in the same position as plaintiff relative to the statutory definition of "parent, " i.e., he would have no biological or legal link to the child born during the relationship. Because the foregoing shows that the statute can be applied equally to someone in plaintiff's position, but not in a same-sex relationship, MCL 722.22(i) is constitutional.[7]

         The Virginia Court of Appeals came to the same conclusion regarding its common-law definition of "parentage, " which is the same as our statutory definition of "parent." In Hawkins v Grese, 68 Va.App. 462, 475; 809 S.E.2d 441 (2018), the court held that there was no dissimilar treatment under that state's ...

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