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### STATE OF MICHIGAN

COURT OF APPEALS

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff, UNPUBLISHED May 30, 2017

v No. 336553
Oakland Circuit Court ANNETTE BIRMINGHAM, LC No. 2014-819042-DS

Defendant-Appellee,

and

DAVID ARNOLD,

Other Party-Appellee,

and

MARY DEEGAN and MICHAEL DEEGAN,

Other Parties-Appellants.

Before: S ERVITTO , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

.

Other parties, Mary Deegan a nd Michael Deegan (collectively “the Deegans”), appeal as of right an order granting summar y disposition in favor of defe ndant Annette Birmingham and other party David Arnold (collect ively “the parents”), and dism issing the Deegans’ request to intervene as third parties to a pending child support action an d petition for full legal and physical custody of minor child ARB, over whom the Deegans act as custod ians at the request of the parents. The trial court entere d the order after finding that the Deegans’ motion to intervene, in substance, represented a petition to initiate custody proceedin gs and the Deegans, as third parties, did not have standing to file under the relevant statutes. We affirm.

This case arose from a 2014 child support proceeding brought b y the Department of Health and Human Services (“DHHS”), requesting an order directi ng Birmingham to make monthly support payments to Mi chael, ARB’s acting custodian. A t the time of the action, ARB-2- had resided with Michael and hi s wife Mary since 2010, when Bir mingham, abandoned by Arnold and unable to care for the minor child on her own, asked the Deegans to provide care for her daughter. Birmingham provided the Deegans with a limited p ower of attorney in 2011, and in 2014, the child support action initiated by the DHHS resulte d in a default judgment of support designating Michael as the “cust odian” and recip ient of monthly child support payments.

Sometime after the support order entered, the Deegans became a ware that Arnold, who had left Birmingham and ARB when ARB was two years old, had ret urned to rekindle his romantic relationship with Birmingham and was requesting parent ing time with his daughter. This prompted the Deegans to fear that their status as ARB’s caregivers was in jeopardy. The Deegans believed that a return of custody to the parents, espec ially Arnold, who had a record of domestic violence, discharge from the Army for striking an offi cer, a diagnosis of posttraumatic stress disorder, homelessness, and a suicide attempt, would pla ce ARB in serious danger. In the fall of 2016, the Deegans filed a motion to intervene under MCR 2.209 as third parties to the existing child support proceeding, asking the court to add Arno ld as a party to the proceedings and grant the Deegans full lega l and physical custody of ARB. The parents responded with a motion for summary disposition ch aracterizing the Deegans’ moti on to intervene as a “thinly veiled motion for custody of a minor child,” and arguing that t he Deegans lacked standing to petition for custody of ARB. The Deegans replied by conceding that they lacked legal standing to initiate a custody proceeding but arguing that the trial court had the authority to continue custody in Michael, who had been recognized as having custody w hen he was named “custodian” in the 2014 default judgment. Because the trial co urt had jurisdiction over ARB, argued the Deegans, it could awa rd the Deegans custody in the m inor child’s best interests.

The trial court considered the parties’ arguments without hold ing a hearing, and granted the parents’ motion for summary disposition with a written opin ion and order, explaining:

The court agrees with the positi on of Defendant Parents that Pr oposed Intervenors motion to intervene in effect is a petition for custody . . . . Proposed Intervenors concede that they lack legal standing to initiate a lawsuit ove r custody of the minor child but contend that custody has been before this court since entry of the Default Judgment of Support. However, custody was not awarded or determined by the Default Judgment of Support. Rather, the language of th e Judgment acknowledged that Proposed Inter venor Michael Deegan was caring for the minor

child and that Defendant Mother should pay child support to Pro posed Intervenors

while the minor child was in their care. The court finds that Proposed Intervenors lack the capacity to sue.

On appeal, the Deegans argue that the trial court erred in granting the parents’ motion for summary disposition on the basis that the Deegans, as uninteres ted third parties, lacked standing to initiate a custody proceeding und er the relevant statutes. We disagree.

We review a trial court’s deci sion on a motion for summary dis position de novo. Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). Although the parents here did not specifically refer to MCR 2.116(C)(5) in their motion for summary disposition, their motion was premised on the Deegans’ lack of standing and we find that, in substance if not form, the parents’ motion was brought pursuant to that rule. MCR 2.116(C)(5)-3- provides for summary disposition when “[t]he party asserting th e claim lacks the legal capacity to sue,” and applies in cases involving alleged lack of standin g, Aichele v Hodge , 259 Mich App 146, 165; 673 NW2d 452 (2003). “In reviewing a motion for summ ary disposition pursuant to MCR 2.116(C)(5), this Court must consider the pleadings, deposi tions, admissions, affidavits, and other documentary evidence submitted by the parties.” Jones v Slick , 242 Mich App 715, 718; 619 NW2d 733 (2000). “Ordinarily, questions of law, inclu ding statutory interpretation and the issue of a party’s standing, are also reviewed de novo.” Salem Springs, LLC v Salem Twp

, 312 Mich App 210, 216; 880 NW2d 793 (2015).

I. THIRD PARTY STANDI NG AND MCL 722.27(1)

The Deegans properly concede that, as third parties, they lack legal standing to initiate a child custody dispute. However, they assert that the lower cou rt, as an arbiter of equity, has the power to grant them standing as persons interested in the subje ct matter of a proceeding, here ARB. Their assertions are contrary to clearly established law. As this Court explained in In re Anjoski , 283 Mich App 41, 50-51; 770 NW2d 1 (2009):

Generally, a party has standing if it has “s ome real interest i n the cause of action, . . . or interest in the subject matter of the controversy.” How ever, this concept is not given such a broad applicatio n in the context of child cust ody disputes involving third parties, or “any individual other than a parent [.]” For example, a third party does not have standing by virtue of the fact that he or she resides with the child and has a “personal stake” in the outcome of the litigation. [ Id

. (citations omitted; emphasis added).]

The Deegans, who acknowledge that the Child Custody Act, MCL 72 2.21 et seq. , controls the issues in this case, should rem ain mindful that “[a]lthough cou rts undoubtedly possess equitable power . . . [a] court’s equitabl e power is not an unrestricted license for the court to engage in wholesale policymaking,” and equity may not “trump an unambiguo us and constitutionally valid statutory enactment.” Devillers v Auto Club Ins Ass’n , 473 Mich 562, 590-591; 702 NW2d 539 (2005).

Aside from their equitable arguments, the Deegans contend that the trial court erred when it granted the parents’ motion for summary disposition under MC R 2.116(C)(5) for lack of standing because the issue of standing was simply not relevant under MCL 722.27(1)(a), which, according to the Deegans, grants the trial court authority to c onsider whether the best interests of a minor child support a custody award to a third party regardle ss of standing. The Deegans are correct that under MCL 722.27(1)(a), the trial court has the au thority to consider whether placement with third parties is in the best interests of a mino r child. The Deegans, however, misinterpret the plain langua ge of the statute. MCL 722.27(1)( a) provides:

(1) If a child custody dispute has been submitted to the circui t court as an original

action under this act or has aris en incidentally from another a ction in the circuit court or an order or judgment of the circuit court, for the bes t interests of the child the court may do 1 or more of the following:-4- (a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the chi ld reaches 18 years of age.

MCL 722.27(1)(a) clearly allows the trial court to consider whe ther custody of a third party

would be in the best interests of a child after a child custody dispute has been submitted to the court as an original action or has arisen as an incident to ano ther action in the circuit court. It does not, as the Deegans suggest, grant the circuit court autho rity to take up the best interests determination at its whim, or at the request of a party otherwi se without standing to initiate child custody proceedings. Our Supreme Court has made clear that “a third party cannot create a custody dispute by simply filing a complaint in circuit court a lleging that giving legal custody to the third party is in the best interests of the child.” Bowie v Arder , 441 Mich 23, 48-49; 490 NW2d 568 (1992). Rather, MCL 722.27(1) contains a threshold re quirement that an existing custody dispute is properly before the circuit court. Terry v Affum (On Remand) , 237 Mich App 522, 533; 603 NW2d 788 (1999). Indeed, in each of the cases ci ted by the Deegans in support of their argument that MCL 722.27(1)(a) controls in this instance, third parties were only allowed to request custody incident to a pending custody proceeding. See Heltzel v Heltzel , 248 Mich App 1, 29; 638 NW2d 123 (2001) (noting that the case was distinguis hable from cases where a third party initiated an original custody proceeding against the mino r’s parents because “the instant custody dispute stemmed from a circuit court order during a div orce proceeding”); Terry , 237 Mich App at 533-535 (refusing to consider the propriety of an a ward of parenting time to third parties without first determining “whether there was a child cu stody dispute prop erly before the circuit court when [the third pa rties] were awarded parenting t ime”).

Thus, the Deegans’ argument that “standing is irrelevant” is o nly half true. As this Court has explained:

Our Supreme Court specifically has recognized that while genera lly no authority permits a nonparent to create a child custody dispute by simply filing a complaint in the circuit court alleging that giving custody to the third party is in the best interests of the child, custody may be awarded to grandparents or other third parties according to the best in terests of the child in an appr opriate case (typically involving divorce) . . . . [A] ci rcuit court award of custody to a third party during a divorce proceeding is based not on the third party’s legal ri ght to custody of the child, but on the court’s determination of the child’s best int erests. [ Heltzel , 248 Mich App at 29-30.] (internal quotations omitted)

The above-cited statutes and cases make clear that while a thir d party may be considered, regardless of legal standing, inthe custody determination of a trial court already engaged in such

a determination , no party, including an interes ted third party, may bring an a ction to initiate a child custody dispute without possessing legal standing. The a pplicability of MCL 722.27(1)(a) to the Deegans’ case therefore turns on whether the lower court proceeding constituted an ongoing custody dispute.-5- II. SUPPORT CASE WAS NOT A PENDING CUSTODY DISPUTE

The dispositive issue on appeal is whether a custody dispute w as pending before the lower court at the time the Deegans filed their motion to inter vene as third parties and requested a custody determination in their favor. Indeed, both parties a cknowledge that the answer to this question directs the ultimate i ssue of standing. The Deegans a rgue that the pending child support case, filed by the DHHS against Birmingham in 2014, constituted a preexisting child custody dispute because the court entered a default judgment in the cas e and, according to the Deegans, “made an actual custody award” when it employed the following l anguage: “MICHAEL DAVID DEEGAN is the custodian of, and ANNETTE IRENE BIRMINGHAM is the mother of and owes a duty of support to: [ARB][. ]” The Deegans maintain that the trial court’s reference to Michael as ARB’s “custodian” constituted an award of custody an d, thereafter, the court possessed jurisdiction over the minor child to make decisions r egarding her care and custody. However, the Deegans’ argument is indefensible.

The child support case here canno t be properly characterized a s a custody dispute. We note for the parties that it is not the parents’ argument regar ding case codes that is persuasive. While the lower court file is designated “DS,” the case classif ication code employed in child support cases, rather than “DC,” the code employed in custody c ases, MCR 8.117, this Court has made clear that the form of a case caption is “not particularly significant.” Howard v Bouwman

, 251 Mich App 136, 146; 650 NW2d 114 (2002). Rather, it is the relief requested that controls, and here the relief requested is dispositive. “[W]ithin the Ch ild Custody Act the term ‘child custody dispute’ is broadly inte rpreted ‘to mean any action or situation involving the placement

of a child.’ ” Terry , 237 Mich App at 533 (citations omitted). The lower court pro ceeding, a request for entry of a child support order, was initiated by th e DHHS against Birmingham because the DHHS was providing assistance to ARB while she was in the Deegans’ care. No issues of custody or placement were raised in the complaint, or addressed before the lower court’s entry of the default j udgment of support. Notably, the 2014 default judgment designating Michael as ARB’s custodian expli citly withheld judgment on issu es relating to custody and parenting time.

Contrary to the Deegans’ assertion, Michael’s designation as A RB’s “custodian” in the 2014 default judgment was a matter of classification for purpos es of distributing child support funds, and not an award or continuation of custody. An individ ual need not have legal custody of a minor child to receive child support payments on the minor child’s behalf, see MCL 552.605d(4) (stating that “[t]he office of the friend of the co urt may consider the person who is providing the actual care, suppor t, and maintenance of a child for whom support is ordered as the recipient of support for the chil d and may redirect support pai d for that child to that recipient of support,” without limiting receipt of support to persons with c ourt-ordered custody), and the Deegans have cited no authority for the proposition that a tria l court may award custody to a third party through a default judgment of support and without h olding a hearing on the matter. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims[.]” Houghton v Keller , 256 Mich App 336, 339; 662 NW2d 854 (2003) (quotations and citations omitted). In truth, the D eegans never had court sanctioned legal or physical custody of the minor child, a fact they expli citly acknowledge. The Deegans conceded in the lower court, as they have on appeal, “that the whole point of seeking

intervention is to gain custodial rights over the minor child.” Had the default judgm ent imbued-6- custody of ARB onto Michael, such an intervention would not hav e been necessary, and the Deegans cannot now argue that a custody case was pending before they filed their motion to intervene. “An issue conceded by a party below may not be trea ted by this Court as open for

review.” Kast v Citizens Mut Ins Co , 125 Mich App 309, 313; 336 NW2d 18 (1983). The child support proceeding was not a custody proceeding, and no custody dispute was pending before the lower court when the Deegans filed their motion to interven e. The Deegans’ motion can therefore only be characterize d as a motion to in itiate custody proceedings.

III. TRIAL COURT DID NOT ERR WHE N IT GRANTED SUMMARY DISPOSITI ON PURSUANT TO MCR 2.116(C)(5 ) FOR LACK OF STANDING

As previously discussed, the Deegans’ request for custody as t hird parties without legal standing could only have been app ropriate if it arose within th e context of a pending custody dispute, and here it did not. The trial court therefore did no t err when it limited its determination on the parents’ motion for summary disposition to the applicabi lity of MCL 722.26b and 722.26c(1)(b), the only two statutes through which the Legislat ure has conferred standing on third parties to initiate a child custody proceeding. Anjoski , 283 Mich App at 51. Neither did the trial court err when it concluded that the Deegans failed to me et the requirements for standing under either statute. The first, MCL 722.26b, allows guardians and limited guardians to bring an action for custody of a minor ch ild in certain situations. In pertinent part, it provides:

(1) Except as otherwise provided in subsection (2), a guardian or limited guardian of a child has standing to bring an action for custody of the c hild as provided in

this act.

(2) A limited guardian of a child does not have standing to bri ng an action for custody of the child if the parent or parents of the child have substantially complied with a limited guardianship placement plan regarding the child . . . .

A third party may also obtain standing under MCL 722.26c(1)(b), if he or she meets all of the following conditions:

( i ) The child’s biological parents have never been married to one another.

( ii ) The child’s parent who has custody of the child dies or is mi ssing and the other parent has not been grante d legal custody under court ord er.

( iii ) The third person is related to the child within the fifth deg ree by marriage, blood, or adoption.

These provisions do not apply here. Neither of the Deegans obt ained guardianship or limited guardianship of ARB, and MCL 722.26b therefore does not confer standing to initiate a custody dispute. Additionally, although the parents were never married and the Deegans are related to ARB as her great-aunt and great- uncle, neither of ARB’s parents are dead or missing so that the Deegans also fail to meet the conditions for standing under MCL 722.26c(1)(b). “If a third party

does not fit within one of the tw o statutory standing requireme nts, the third party lacks standing to create a custody dispute.” Anjoski , 283 Mich App at 52. Because the Deegans met none of the statutory standing requirements, and neither the child’s re sidence with the Deegans nor the-7- Deegans’ limited power of attorney were sufficient to create st anding, the trial court properly concluded that the Deegans lacked standing to file a petition f or custody and granted the parents’ motion for summary disposition pursuant to MCR 2.116(C)(5).

Further, contrary to the Deegans’ assertion on appeal, the tri al court was not required to conduct a trial on the “factual issues” under MCR 2.116(I) befo re granting the parents’ motion for summary disposition. Although MCR 2.116(I) provides that a court “may” order a trial to resolve disputed material facts before granting a motion for su mmary disposition, the statute is clearly permissive in this regard. Old Kent Bank v Kal Kustom, Enterprises , 255 Mich App 524, 532; 660 NW2d 384 (2003) (“As a general rule, the word ‘may’ wi ll not be treated as a word of command unless there is something in the context or subject mat ter of the act to indicate that it was used in such a sense” [citations omitted]). And, the Deega ns failed to allege any disputed facts that might overcome their lack of standing. MCR 2.116(I) also commands that “[i]f the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, th e court shallrender judgment without delay.” (Emphasis added. ) The trial court therefore d id not err when it granted the motion for summary disposition without holding a trial.

IV. MOTION FOR SUMMARY DISPOSITI ON WAS NOT AN IMPROPER VEHICLE

The Deegans next contend that the trial court was obligated to dismiss the parents’ motion for summary disposition because, regardless of its merit s, the parents’ motion for summary disposition was not a legally appropriate response to t he Deegans’ motion to intervene. The Deegans’ argument lacks merit. They are correct that a mot ion for summary disposition, under any subrule, must be sought on a “claim” under MCR 2.116( B)(1), which allows a party to “move for dismissal or judgment on all or part of a claim .” (Emphasis added.) However, they continue their reasoning with the specious contention that “[a] claim is something that can only be raised in a pleading [unde r] MCR 2.111(B).” MCR 2.111(B) pr ovides:

(B) Statement of Claim. A compl aint, counterclaim, cross-claim , or third-party complaint must contain the following:

(1) A statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations nece ssary reasonably to inform the adverse party of the nature of the claims the advers e party is called on to defend; and

(2) A demand for judgment for th e relief that the pleader seeks

. . . .

While MCR 2.111(B) requires that a pleading contain a “demand f or judgment for the relief that the pleader seeks,” it contains no requirement, overt or implie d, that a claim may only be raised in a pleading. And, the form of the Deegans’ ”motion” belies t heir attempt to characterize it as something other than a third-party complaint. In addition to s tating their grounds for intervention, the Deegans included a request for relief in the form of, among other things, an “[o]rder that the intervenors be awarded sole legal and physica l custody of [ARB][.]” This is clearly a claim on which summary disposition might be granted. Regardless, the Deegans’ motion to intervene was properly considered. Even “a party mov ing to intervene in litigation . . .-8- must demonstrate that the party has standing to assert his or h er claims.” Anjoski , 283 Mich App at 52 n 4, citing Karrip v Cannon Twp , 115 Mich App 726, 732; 321 NW2d 690 (1982).

Because the trial court properly granted the parents’ motion f or summary disposition for the reasons stated above, it is unnecessary for this Court to a ddress the Deegans’ remaining

claims of error.

V. ATTORNEY FEES

The parents argue that the trial court erred when it declined to grant them attorney fees. However, this issue is not properly before this Court because i t was raised in a responsive brief, rather than as an issue in a brief as cross-appellants. See In re Estate of Herbach , 230 Mich App 276, 284; 583 NW2d 541 (1998) (while an appellee may raise alte rnative grounds for affirmance without filing a cross-appeal, he may not seek a decision more favorable than that rendered by the trial court without raising those issues in a cross-appeal) . The parents also argue that they are entitled to attorney fees due to the “vexatious” nature of this appeal. Although MCR 7.216(C) provides for attorney fees in cases of vexatious appeals, MCR 7 .211(C)(8) clea rly states:

A party’s request for damages or other disciplinary action unde r MCR 7.216(C) must be contained in a motion filed under this rule. A requestthat is contained in any other pleading, including a brief filed under MCR 7.212, wi ll not constitute a motion under this rule. A party may file a motion for damages or other disciplinary action under MCR 7.216 (C) at any time within 21 da ys after the date of the order or opinion that disposes of the matter that is ass erted to have been

vexatious.

Should the parents wish to requ est attorney fees in relation to this appeal, they must do so in a properly filed motion within 21 days of the opinion disposing o f this appeal.

Affirmed.

/s/ Deborah A. Servitto /s/ Mark J. Cavanagh

/s/ Karen M. Fort Hood