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### STATE OF MICHIGAN

COURT OF APPEALS

ROGER SKINDELL,

Plaintiff-Appellee, UNPUBLISHED July 19, 2016

v No. 326574 Lapeer Circuit Court JESSICA SKINDELL, LC No. 08-040090-DM

Defendant-Appellee, and

THOMAS MANNESTO,

Intervening Plai ntiff-Appellant.

Before: J ANSEN , P.J., and F ORT H OOD and B OONSTRA , JJ.

P ER C URIAM

. Intervening plaintiff appeals byleave granted the trial court ’s order setting forth multiple legal conclusions relevant to the paternity of the minor child in this divorce case. We affirm in part, reverse in part, and remand f or further proceedings consi stent with this opinion.

This appeal primarily presents legal issues relating to the Re vocation of Paternity Act (RPA), MCL 722.1431 et seq ., and the underlying facts are e ssentially uncontroverted. Pl aintiff and defendant were married on December 18, 2004. The minor chi ld was born on March 17, 2005, and resided with both plaint iff and defendant until the b reakdown of their marriage. Plaintiff and defendant divorced in 2009, and plaintiff was awa rded sole physical custody. In 2013, intervening plaintiff filed a motion for intervention, as serting that he was the child’s biological father. Intervening Plaintiff sought a determinatio n that the child was born out of wedlock. He alleged that at the time of the breakdown of plaintiff’s and defendant’s marriage, defendant contacted him and told him that he may be the biologi cal father of the minor child. While intervening plaintiff explor ed his legal rights with rega rd to the child, he did not have standing because of plaintiff and defendant’s marriage. Howeve r, after enactment of the RPA, intervening plaintiff was able to petition the court to establi sh his parentage. In the trial court, both plaintiff and defendant oppos ed intervening plaintiff’s mo tion, although neither has filed a-2- brief on appeal. Prior to holdi ng an evidentiary hearing, the trial court issued an order making several legal findings regarding the applicable law in this cas e. Intervening plaintiff filed an application for an interlocutory a ppeal, which this Court grant ed. 1

I. REVOCATION OF PATERNITY ACT

This appeal first requires us to consider legal issues relatin g to the RPA. 2 On appeal, intervening plaintiff first asserts that the trial court erred in relying on this Court’s opinion in Helton v Beaman , 304 Mich App 97; 850 NW2d 515 (2014), aff’d 497 Mich 1001 (20 15). Specifically, intervening plaintiff contends that the trial cou rt erred in concluding that it should consider the best interest factors in MCL 722.23, a section of the Child Custody Act (CCA), MCL 722.21 et seq ., in determining whether to re voke plaintiff’s paternity pursu ant to MCL 722.1443(4). Intervening plaintiff also contends that the tria l court erred in concluding that the clear and convincing standard applies when weighing the minor c hild’s best interests in determining whether to revoke plaintiff’s paternity. While we agree with intervening plaintiff that this Court’s decision in Demski v Petlick , 309 Mich App 404; 873 NW2d 596 (2015), governs the best-interest analysis, we disagree with his conten tion that the trial court erred in holding that the clear and convincing standard would apply to t he trial court’s weighing of the best-interest factors.

Issues concerning the interpreta tion and application of the RP A are reviewed de novo. Id. at 426. A trial court’s factual findings in a proceeding invo lving the RPA are reviewed for clear error. Parks v Parks , 304 Mich App 232, 237; 850 NW2d 595 (2014), citing In re Moiles
, 303 Mich App 59, 65-66; 840 NW2d 790 (2013), rev’d on other gro unds In re Moiles , 495 Mich 944 (2014).

A. BEST-INTEREST FACTORS

In this case, intervening plaintiff seeks a determination that the minor child at issue was born out of wedlock. MCL 722.1443( 2)(d). The relevant statuto ry provision governing this case is MCL 722.1443(4), which provides:

(4) A court may refuse to enter an order setting aside a paternity determination, revoking an acknowledgment of pare ntage, determining that a gen etic father is not a child’s father, or determining that a child is bor n out of wedlock if the court finds evidence that the orde r would not be in the best interests of the child . The court shall state its reasons for refusing to enter an order onthe record. The court may consider the following factors:

1 Skindell v Skindell , unpublished order of the Court of Appeals, entered September 24, 2015 (Docket No. 326574).

2 We note that this Court has r ecognized that the “RPA is newer legislation that has not yet been subjected to much construction by the appellate courts[ ] . . . .” Sprenger v Bickle , 307 Mich App 411, 424; 861 NW2d 52 (2014).-3- (a) Whether the presumed father is estopped from denying parent age because of his conduct.

(b) The length of time the presumed father was on notice that h e might not be the child’s father.

(c) The facts surrounding the pre sumed father’s discovery that he might not be the child’s father.

(d) The nature of the relationship between the child and the pr esumed or alleged father.

(e) The age of the child.

(f) The harm that may result to the child.

(g) Other factors that may affect the equities arising from the disruption of the father-child relationship.

(h) Any other factor that the c ourt determines appropriate to c onsider. [Emphasis added.]

Below, the trial court held that, in considering the best inte rests of the child, it must consider the best interest factors as articulated in the CCA, M CL 722.23, relying on this Court’s decision in Helton , 304 Mich App 97. Helton involved an action under the RPA to revoke the acknowledgment of parentage by the defendant father. Id . at 101-102 (opinion by O’C ONNELL , J.). In Helton , the lead opinion relied on In re Moiles , 303 Mich App 59. The In re Moiles Court held that a trial court was not r equired to weigh the best inte rest factors set forth in MCL 722.1443(4) when deciding whether to revoke an acknowledgement of parentage. Id . at 65-66. Relying on In Re Moiles , the lead opinion in Helton concluded that the best interest factors for determining a child’s custody under the CCA shoul d guide a tria l court’s decision whether to revoke an acknowledgment of parentage. Helton , 304 Mich App at 106-107, 108-110 (opinion by O’C ONNELL , J.). In a concurring opinion, J UDGE K IRSTEN F RANK K ELLY noted her disapproval with In re Moiles and further stated that the trial court could “appropriately c onsider the relevant best-interest factors listed in MCL 722.1443(4) . . .” when deciding whether to revoke an acknowledgment of parentage. Id. at 114-115 (K.F. K ELLY , J., concurring). After Helton was decided, our Supreme Court vacated the portion of the In re Moiles opinion on which the lead opinion in Helton relied. In re Moiles , 495 Mich 944. The Supreme Court later affirmed the result in Helton , but stated:

We agree with the Court of Appeals authoring and concurring jud ges that In re Moiles , 303 Mich App 59[], wrongly held t hat a trial court is not req uired to make a best interest determination under MCL 722.1443(4) in deciding whether to revoke an acknowledgment of parentage. . . . [W]e hold that an order revoking an acknowledgment of parentage constitutes an order “setting aside a paternity determination” and therefore, is subject to a best interest ana lysis under MCL 722.1443(4). [ Helton , 497 Mich 1001.]-4- Additionally, the day after the trial court in this case enter ed the order appealed, this Court issued its decision in Demski , 309 Mich App 404. Similar to the instant case, Demski involved facts where the mother of the minor child had a brief romantic relationship with the minor child’s biological father, which resulted in her pregnanc y with the minor child. Id . at 411- 412. The mother of the minor child subsequently resumed a prio r relationship with the minor child’s presumed father, and they married the day before the ch ild’s birth. Id . at 413-414. After the minor child’s biological father initiated a lawsuit against the minor child’s mother and the presumed father seeking a declaration that the biological fathe r was the minor child’s father, the trial court held a bench trial. Id . at 416-417. The trial court ultimately concluded that the mi nor child was born out of wedlock as contemplated by MCL 722.1443(4 ), and after considering the minor child’s best interests, con cluded that the biological fat her was indeed the minor’s biological father and awarded hi m joint legal custody and paren ting time. Id . at 421-423.

On appeal, the child’s mother and the presumed father argued t hat the trial court had not properly assigned the applicable b urden of proof, and had erred in its ultimate determination regarding the minor child’s best interests . Id . at 423. This Court disagreed, recognizing that under the specific facts of Demski , the trial court appropriately a ssigned the burden of persuasi on to the biological father. Id . at 427. In Demski , the trial court used the clear and convincing evidence standard to conclude that the minor child was born outof wedlock. Id . at 422. This Court also held that in a case such as the one presently before this Court, where the trial court undertakes an analysis of whether to enter an order determining a minor child was born out of wedlock as set forth in MCL 722.1443(4), the trial court should rely on the best interest factors set forth in that statute, not t he best interest factors from t he CCA. Demski , 309 Mich App at 429-430. This Court distinguished the lead opinion in Helton , noting that the facts of Helton involved the revocation of an acknowledgment of parentage. Id. at 430. 3

Accordingly, Demski makes it abundantly clear that, where considering whether to e nter an order concluding that a child was born out of wedlock as setforth in MCL 722.1443(4), the trial court is not required to look beyond the confines of the RPA, but may properly ground its decision in the best-interest factors elucidated in MCL 722.144 3(4). Demski is binding on the trial court even though it was issued one day after the trial c ourt’s order in this matter. “Generally, judicial decisions are given full retroactive effec t, i.e., they are applied to all pending cases in which the same challenge has been raised and preserved .” Paul v Wayne Co Dep’t of Public Service , 271 Mich App 617, 620; 722 NW2d 922 (2006) (citations omitted ). Therefore, to the extent that the trial court relied on Helton , concluding that it must co nsider the best interest factors from the CCA in determining whether to conclude that th e minor child was born out of wedlock as contemplated by MCL 722.1443(4), this amounted to le gal error.

B. EVIDENTIARY STANDARD

Turning next to the issue of the appropriate evidentiary stand ard, intervening plaintiff argues that the trial court erre d in concluding that the clear and convincing standa rd applies when weighing the minor child’s best interests in determining whethe r to revoke plaintiff’s paternity.

3 Notably, the Demski opinion was released before the S upreme Court’s order affirmin g Helton

.-5- Ultimately, we conclude that precedent from this Court supports the contention that the clear and convincing evidentiary standard applies in making such a determ ination.

In Demski , the Court discussed the appropriate evidentiary standard for a best-interests analysis pursuant to MCL 722.1443(4). In Demski , the biological mother and presumed father argued that in the context of deciding whether to determine a c hild is born out of wedlock, the trial court ought to have used th e clear and convincing evident iary standard in weighing the bestinterest factors of MCL 722.1443(4). Demski , 309 Mich App at 427, 429. In so arguing, the biological mother and presumed father pointed to the lead opini on in Helton , which concluded that the clear and convincing ev identiary standard should apply where the child in that case had an established custodial environment. Id . at 428. The Demski Court held that it was not required to apply the clear and convincing evidence standard articulated in Helton because Helton was a nonbinding lead opinion. Id. at 429. However, while the Demski Court did not expressly adopt the clear and convincing evidence standard, it suggested that t he trial court had indeed used the clear and convincing evidentiary standard when rendering a best interest determination pursuant to MCL 722.1443(4), and affirm ed the trial court. Id. at 431 n 9.

Accordingly, while our reasons differ from the trial court on the ultimate analysis leading to the employment of the clear and convincing standard for the best-interest determination pursuant to MCL 722.1443(4), we nonetheless affirm the trial co urt’s ruling on this basis as it comports with the leading case law from this Court. The Court of Appeals will affirm a trial court’s decision if it has reached the correct result, even if based on alternative reasoning. Lavey v Mills , 248 Mich App 244, 250; 639 NW2d 261 (2001).

II. ADDITIONAL ARGUMENTS

Intervening plaintiff next argue s that the trial court erred i n concluding that any evidence relating to the allegations plaintiff and defendant made agains t each other in their divorce proceedings that preceded their 2009 judgment of divorce ought to be barred.

“A trial court’s evidentiary decisions, preserved for review, are reviewed for an abuse of discretion .” Landin v HealthSource Saginaw, Inc , 305 Mich App 519, 541; 854 NW2d 152 (2014) (citation omitted). When the trial court’s decision fal ls outside the range of reasonable and principled outcomes, an abuse of discre tion results. Ypsilanti Charter Twp v Kircher , 281 Mich App 251, 273; 761 NW2d 761 (2008). This Court reviews de novo applicable legal questions that form the foundation for a trial court’s evidenti ary ruling, including the interpretation of the court rules

. Elher v Misra , 499 Mich 11, 21; 878 NW2d 790 (2016).

Pursuant to MRE 402, all relevant evidence is admissible, unle ss provided otherwise by the United States Constitution, the Michigan Constitution, or the rules of evidence. Landin , 305 Mich App at 541-542. MRE 401 provides that relevant evidence i s defined as “evidence having any tendency to make the existence of any fact that is of conse quence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401; Landin , 305 Mich App at 542. MRE 403 further specifies that evidence may be excluded under certain circumstances if its probative value is substantially o utweighed by “the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay,-6- waste of time, or needless pres entation of cumulative evidence. ” MRE 403; Landin , 305 Mich App at 542.

Relevant to this issue, t he trial court held:

Since there is a Judgment of Di vorce with a custody determinati on evidence in the instant case picks up from the last order of the court. All al legations and all issues between Plaintiff and Defendant p rior to the judgment of divorc e are res judicata. Therefore that testimony regard ing pre Judgment of Divorce alle gations and issues between Plaintiff and D efendant would be barred.

Here, we disagree with the court’s reasoning as it relates to e vidence predating the Judgment of Divorce. As intervening plaintiff points out in his brief on a ppeal, in Vodvarka v Grasmeyer
, 259 Mich App 499, 514; 675 NW2d 847 (2003), this Court recogniz ed that in the context of deciding a motion seeking to cha nge a child’s established custo dial environment on the basis of a change in circumstances, the “change in circumstances must have occurred after entry of the last custody order. As a result, the movant cannot rely on facts th at existed before entry of the custody order to establish a ‘change’ of circumstances.” Id . (footnote omitted). It appears that the trial court relied on this principle of law in rendering it s evidentiary ruling in this case. However, our research did not yield authority standing for the proposition that evidence in a divorce proceeding that predated the judgment of divorce is not admissible in a subsequent paternity determination.

Further, as intervening plain tiff points out in his brief on a ppeal, evidence that predated the 2009 divorce judgment could be r elevant to the best interes t factors set forth in MCL 722.1443(4) that the trial court is required to consider. MRE 401; MRE 402. For example, evidence that predated the divor ce judgment may bear on “the le ngth of time the presumed father was on notice that he might not be the child’s father[,]” as we ll as “[t]he facts surrounding the presumed father’s discovery that he might not be the child’s fa ther.” MCL 722.1443(4)(b), (c). Additionally, evidence that pred ated the divorce judgment could shed light for the trial court on “[t]he nature of the relationshi p between the child and the pre sumed or alleged father.” MCL 722.1443(4)(d).

In addition, the trial court’s reliance on the doctrine of res judicata to exclude any evidence that predated the 2009 divorce judgment was erroneous. The applicability of the doctrine of res judicata is a que stion of law that this Court r eviews de novo. Estes v Titus , 481 Mich 573, 579; 751 NW2d 493 (2008). Res judicata is applied in a broad fashion to bar “not only claims already litigated, but also every claim arising fro m the same transaction, that the parties, exercising reasonable diligence, could have raised but did not ” Adam v Bell , 311 Mich App 528, 530; 879 NW2d 879 (2015), quoting Adair v Michigan , 470 Mich 105, 121; 680 NW2d 386 (2004). The principle of res judicata is intended to avoid “multiple suits litigating the same cause of action[,] [therefore] [ t]he doctrine bars a second, su bsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, reso lved in the first.” Adair , 470 Mich at 121, citing Sewell v Clean Cut Mgt, Inc , 463 Mich 569, 575; 621 NW2d 222 (2001). Consequently, rather than acting as a rule of evidence, it is c lear from the case law that the-7- doctrine of res judicata acts to bar subsequent claims, rather than to limit evidence, and therefore the doctrine was not appl icable in this case.

For these reasons, on remand, th e trial court should consider evidence that predated the 2009 divorce judgment between plaintiff and defendant that the trial court concludes to be relevant to the best interest factors in MCL 722.1443(4). We n ote that our holding is limited to the admissibility of the evidence for the reasons discussed abo ve. In the event of an evidentiary hearing, intervening plaintiff may present evidence compliant w ith this holding that may still prove inadmissible. For example, intervening plaintiff seems t o suggest that plaintiff’s and defendant’s pleadings from thei r divorce proceedings should be admissible, but, even considering our holding, we are not convinced, as these documen ts contain mere allegations. At this stage in the proceedings, we merely emphasize that our dec ision should not be interpreted as holding that all evidence predatin g the Judgement of Divorce wo uld be admissible at an evidentiary hearing.

Finally, intervening plaintiff c ontends that the trial court e rred in concluding that the legal effect of revoking plaintiff’s paternity would be to terminate his parental rights to the minor child. Where the issue of paternity has not yet been decided i n the trial court, and this case does not have a fully developed factual record on the paternity issu e, it would not be appropriate for this Court at this time to render a decision on the legal impli cations of plaintiff’s paternity being revoked. In other words, these issues are not ripe for this Co urt’s review. “The doctrine of ripeness is designed to prevent the adjudication of hypothetica l or contingent claims before an actual injury has been sustained.” King v Mich State Police Dep’t , 303 Mich App 162, 188; 841 NW2d 914 (2013), quoting City of Huntington Woods v City of Detroit , 279 Mich App 603, 614; 761 NW2d 127 (2008).

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion consistent with this opi nion. We do not retain jurisdi ction.

/s/ Kathleen Jansen /s/ Karen M. Fort Hood