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### STATE OF MICHIGAN

COURT OF APPEALS

In re Estate of KENNETH JAMES KOEHLER.

SHERRY BIERKLE, Personal Representative of the Estate of Kenneth James Koehler,

Appellant, FOR PUBLICATION March 24, 2016

v No. 322996 Oakland Probate Court ERNEST LEE UMBLE, LC No. 2012-341834-DE

Appellee.

In re Estate of KENNETH JAMES KOEHLER.

SHERRY BIERKLE, Personal Representative of the Estate of Kenneth James Koehler,

Appellant,

and

JOSEPH YORK, EDMUND YORK, RONALD MCKEEL, DANIEL MCKEEL, GREGORY MCKEEL, MICHAEL SIES, NANCY SCHREIBER, and TERRI CARTER,

Interested Persons,

v No. 322997 Oakland Probate Court ERNEST LEE UMBLE, LC No. 2012-341834-DE

Appellee.

Before: S HAPIRO , P.J., and O’C ONNELL and G LEICHER , JJ.-2- O’C ONNELL , J. ( dissenting ).

I respectfully dissent. Because MCL 700.3407 places the burde n on the petitioner to prove heirship, and appellee Ernest Lee Umble is attempting to establish heirship, he has the burden to prove his status as an heir. Accordingly, I would pl ace the burden to establish heirship on Umble, and I believe the proper analysis of this case is as follows:

In 1931, Carl Cedric Umble, the paternal grandfather of decede nt, Kenneth James Koehler, died in a knife-fight that began when he punched a man for kissing Florence Koehler, who was then pregnant with Carl Umble’s child. At that time, C arl Umble was married to Lyndall Hackett, with whom he also had a legitimate child. He could not have known that his decisions would seriously comp licate the administration of his grandson’s estate.

Appellant, Sherry Bierkle, appeals as of right the probate cou rt’s order granting summary disposition in favor of appellee, Ernest Lee Umble. Bierkle ra ises two issues on appeal. First, the probate court ruled that Umble is a paternal heir to Kennet h Koehler under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq . Bierkle contends that the trial court erred. I disagree and conclude that the trial court correctly found that Umble is a paternal relative under EPIC.

Second, Bierkle contends that the trial court incorrectly deci ded that MCL 700.2114(4), which precludes a natural parent inheriting from a child that t he parent failed to acknowledge or refused to support, cannot apply in a case where a parent prede ceased the child. I agree and conclude that MCL 700.2114(4) can apply, and I further conclude that unresolved factual issues exist regarding whether Carl Umble acknowledged and/or refused to support Carl Koehler. I would reverse and remand for furth er proceedings consistent wit h this opinion.

I. FACTUAL BACKGROUND

In February 2012, Koehler died i ntestate with a distributable estate of about $500,000. Koehler had no children or sibli ngs, and his parents predecease d him. On July 8, 2013, Sherry Bierkle, Koehler’s maternal c ousin, filed a final accounting an d a proposed settlement of Koehler’s estate among his mater nal relatives. On July 23, 201 3, Umble objected to Bierkle’s proposed settlement. Umble asserted that he was Koehler’s pate rnal uncle. The family tree is as follows:

Lyndall (Lydia) Hackett

Ernest Lee Umble (Appellee) Carl James Koehler

5/17/1931

- 6/27/1960 Anna York

Kenneth James Koehler (Decedent) Maternal Relatives (Appellant & Interested Persons ) Carl Cedrick Umble

9/3/1910

- 2/7/1931 Florence Koehler-3- A news article from February 8, 1931, provides the context for Carl Umble’s death. Carl Umble had been “separated for several months from his wife, Mrs . Lydia Hackett Umble . . .” Florence Koehler and Carl Umble quarreled and he “failed to rev ive the girl’s affection for him,” but he was “reported to have threatened violence to any who wen t out with [Koehler] . . . .” Clyde Shadwick, who admitted to stabbing Carl Umble, stated tha t he was “knocked down by a blow of Umble’s fist” when he attempted to kiss Florence Koehle r, and he stabbed Carl Umble in self-defense. Carl Koehler was born about three months late r, and his Colorado birth certificate listed Carl Umble as his father.

Bierkle filed a propo sed settlement of Koehler’s estate among his maternal relatives. Shortly afterward, Umble filed objections, asserting that Koehl er’s paternal relatives 1 were entitled to half the estate. Bierkle filed for summary disposi tion, asserting that even if Carl Umble was Carl Koehler’s natural father, Umble could not be an heir to Koehler’s estate at law. According to Bierkle, Carl Umble was barred from inheriting as a matter of law because MCL 700.2114(4) provides that a parent may not inherit through a ch ild that the parent did not acknowledge or failed to support. According to Bierkle, it was impossible for a predeceased parent to establish that he ac knowledged or supported an afterb orn child.

Umble responded that the probate court should grant summary di sposition in his favor under MCR 2.116(I)(2) because MCL 700.2114(4) does not apply if the parent predeceased the birth of the child. According to Umble, this section conflicte d with other provisions of EPIC. Following a hearing, the probate court granted summary disposit ion in favor of Umble. It reasoned that applying MCL 700.2114(4) in cases where a child p redeceased the parent would conflict with other se ctions of EPIC.

The probate court held a bench trial to determine whether Carl Umble was the natural father of Carl Koehler. Following proofs by both parties, the probate court found that Carl Umble was Carl Koehler’s father and was entitled to inherit thr ough him. As a result, it sustained Umble’s objections to the proposed settlement of Koeh ler’s estate and ruled that Koehler’s paternal relatives s hould inherit half the estate.

Bierkle now appeals. The questions this Court must answer to resolve the issues presented are (1) whether Carl Umble was the father of Carl Koe hler for the purposes of EPIC, and (2) whether MCL 700.2114(4) app lies in cases of afterborn c hildren.

II. STANDARDS OF REVIEW

This Court reviews for clear e rror the probate court’s factual findings. In re Bennett Estate , 255 Mich App 545, 549; 662 NW2d 772 (2003). Its findings are clearly erroneous if this Court is definitely and firmly convinced that it made a mistake

. Id

.
We review de novo issues of statutory interpretation. In re Casey Estate , 306 Mich App 252, 256; 856 NW2d 556 (2014). If the plain and ordinary meani ng of a statute’s language is

1 Umble is the only survivi ng paternal relative.-4- clear, we will enforce the statute as written. Id . We must consider the statute as a whole and in context, giving every word mean ing and avoiding constructions t hat render parts of the statute surplusage. Id . at 257. We should not write in to a statute provisions that t he Legislature has not included. Id

. We review de novo the probate court’s decision on a motion for summary disposition. Id . at 256. “A motion for summary disposition under MCR 2.116(C) (8) tests the legal sufficiency of the claim as pleaded . . . .” Id . The probate court properly grants summary disposition if the moving party is entitled to judgment as a ma tter of law. MCR 2.116(C)(8). The probate court may grant su mmary disposit ion under MCR 2.116 (I)(2) if “the opposing party, rather than the moving part y, is entitled to judgment . . . .”

III. BACKGROUND LAW

Bierkle asserts that the probate court clearly erred when it f ound that Carl Umble was the natural father of Carl Koehler. Whether Carl Umble was Carl Ko ehler’s father for the purposes of EPIC is important in this case because it determines whether Umble can inherit as a paternal descendant. If Carl Umble was entitled to inherit from his chi ld Carl Koehler, Umble is the only surviving descendant of Koehler’s paternal grandparents and he is entitled to inherit half of Koehler’s estate. Otherwise, Bier kle and the other descendants of Koehler’s maternal grandparents will inherit the entire estate.

Article II, part 1 of EPIC governs rights to an intestate inhe ritance. In re Certified Question , 493 Mich 70, 76-77; 825 NW2d 566 (2012). Some basic definiti ons are necessary to understand the order of inheritan ce. EPIC defines “descendant” as “in relation to an individual, all of his or her descendants of all generations, with the rela tionship of parent and child at each generation being determined by the definitions of child and par ent contained in this act.” MCL 700.1103(k). EPIC defines a “paren t” as “an individual entitle d to take, or who would have been entitled to take, as a parent unde r this act by intestate succe ssion from a child who dies without a will and whose relationship is in question.” MCL 700.1106( i ).

If a decedent dies intestate and has no surviving spouse, EPIC provides the order in which the decedent’s estate will pass to his or her surviving r elatives. MCL 700.2103. First, the estate will pass to the decedent’s descendants. MCL 700.2103(a ). If the decedent has no descendants, the estate will pass to the decedent’s surviving p arent or parents. MCL 700.2103(b). If the decedent has neither descendants nor survi ving parents, the estate will pass to the descendants of the decedent’s parents (the decedent’s si blings, nieces, and nephews). MCL 700.2103(c).

If the decedent has no survivin g descendants, parents, or desc endants of parents, EPIC instructs the probate court to determine whether there are any descendants of the decedent’s grandparents. MCL 700.2103(d). Hal f the decedent’s estate pas ses to the decedent’s paternal grandparents or their descendants, and half the decedent’s esta te passes to the decedent’s maternal grandparents or their descendants. MCL 700.2103(d). Finally, “[i]f there is no surviving grandparent or descenda nt of a grandparent on either the paternal or the maternal side, the entire estate passes to the d ecedent’s relatives on the oth er side in the same manner as the-5- 1/2.” MCL 700.2103(d). The burden of establishing heirship is on the petitioner. MCL 700.3407. 2

Accordingly, if Carl Umble was entitled to inherit as Carl Koe hler’s parent, Umble is entitled to inherit half of Koehler’s estate because he is the sole surviving descendant of Koehler’s paternal grandparents. But if inheritance could not pass up to Carl Umble through his relationship with Carl Koehler, it cannot pass back down to Umb le, and he is not entitled to a portion of the estate.

IV. UMBLE’S RELATIONSHIP TO KOEHLER

EPIC provides that, generally, a child is the child of his or her natural parents even if they were not married:

Except as provided in subsections (2), (3), and (4), for purpos es of intestate succession by, through, or from an individual, an individual is the child of his or her natural parents, regardl ess of their marital status. . . . [MCL 700.2114(1).]

MCL 700.2114(1)(b) sets forth circumstances in which a man is c onsidered to be the natural parent of a child when that child is conceived out of wedlock. In this case, the probate court proceeded under MCL 400.2114(b)( v ). This subparagraph provides that:

[r]egardless of the child’s age or whether or not the alleged f ather has died, the court with jurisdiction over probate proceedings relating to th e decedent’s estate determines that the man is the child’s father, using the standa rds and procedures established under the pa ternity act, . . . MCL 722.711 to 722.7 30.

Michigan’s Paternity Act “was created as a procedural vehicle for determining the paternity of children born out of wedlock.” In re MKK , 286 Mich App 546, 557; 781 NW2d 132 (2009) (quotation marks and citations omitted). The Paternity Act provides four ways in which a court may establish paternity by an order of filiation:

(a) The finding of the court or the verdict determines that the man is the father.

(b) The defendant acknowledges paternity either orally to the c ourt or by filing with the court a written a cknowledgement of paternity.

(c) The defendant is served with summons and a default judgment is entered against him or her.

(d) Genetic testing . . . determines that the man is the father . [MCL 722.717(1).]

2 Pre-EPIC caselaw required the child-petitioner to show mutual acknowledgement to inherit. See In re Scharenbroch Estate , 191 Mich App 215, 216; 477 NW2d 436 (1991); In re Jones Estate , 207 Mich App 544, 548; 525 NW2d 493 (1994).-6- The party seeking to prove pater nity must establish by a prepon derance of the evidence that the man is the child’s father. Bowerman v MacDonald , 431 Mich 1, 14; 427 NW2d 477 (1988).

This case did not involve a wri tten acknowledgement of paterni ty, a default judgment, or genetic testing. Instead, the probate court relied on the docu mentary evidence that the parties presented at the bench trial. B ierkle specifically challenges the probate court’s reliance on Carl Koehler’s birth certificate, whi ch listed Carl Umble as his fat her.

I agree with Bierkle that this birth certificate did not defin itively establish that Carl Umble was Carl Koehler’s father. But the statement on which Bi erkle relies from the probate court’s opinion is taken out of context. A full review of the probate court’s opinion reveals that the probate court did not solely rely on the birth certificate. It was only part of the evidence that the court considered.

In its findings, the probate court specifically noted that Car l Umble was killed in a knife fight over Florence Koehler, Carl Koehler’s mother; that a news paper article and death certificate indicated that Carl Umble’s mother was Grace Umble, and Carl Ko ehler’s obituary listed his grandmother as Grace Roberts of Denver, Colorado; and that Carl Koehler’s marriage certificate listed his father as “Carl Sedric Umble.” Given the body of ev idence and the lack of evidence that Carl Koehler’s father was someone else, I am not definitel y and firmly convinced that the probate court made a mistake when it found that a preponderance of the evidence supported that Carl Umble was Carl Koehler’s father.

V. ACKNOWLEDGEMENT AND SUPPORT

That Carl Umble was Carl Koehle r’s natural fath er does not aut omatically mean that he is entitled to inherit through Carl Koehler. Bierkle contends tha t the probate court erred when it determined that MCL 700.2114(4) cannot apply in circumstances w here the parent dies before the child is born. Bierkle als o contends that MCL 700.2114(4) bars Umble from inheriting as a matter of law because it is impo ssible for a natu ral parent to acknowledge or support an afterborn child. I agree in part. I concl ude that the probate court err ed when it concluded that MCL 700.2114(4) can only apply in cases involving living parents, b ut I conclude that it does not bar Umble from inheriting as a matter of law.

A. STATUTORY LANGUAGE

The probate court denied Bierkle ’s motion for summary disposit ion because it accepted Umble’s argument that the exception in MCL 700.2114(4) could no t apply in this case.

As noted above, EPIC also provides “ [e]xcept as provided in subsections (2), (3), and (4), for purposes of intestate succession by, through, or from an in dividual, an individual is the child of his or her natural parents, regardless of their marita l status. . . .” MCL 700.2114(1) (emphasis added). Subsec tion 4 provides that:

[i]nheritance from or through a child by either natural parent or his or her kindred is precluded unless that natural parent has openly treated the child as his or hers, and has not refused to support the child. [MCL 700.2114(4).]-7- To accept Umble’s argument that MCL 700.2114(4) cannot apply i n this case is to essentially write an additional condition into MCL 700.2114(4), a clause that would read “unless the child is an afterborn child.” This Court does not read cla uses into unambiguous statutory language. Casey Estate , 306 Mich App at 257. However, the probate court accepted Umb le’s argument, concluding that MCL 700.2114(4) did not apply in such cases because it would be impossible for the predeceased parent to comply and other statu tory sections allow for inheritance through predeceased parents. I conclude that the p robate court erred when it decided that MCL 700.2114(4) does not app ly to cases involving afterbor n children.

If the language of the statute is unambiguous, we must enforce the statute as written. Casey Estate , 306 Mich App at 256. We should not read language into an una mbiguous statute. McCormick v Carrier , 487 Mich 180, 209; 795 NW2d 517 (2010). A statute is ambiguo us only if it irreconcilably conflicts with another provision or it is equally susceptible to more than a single meaning. Mayor of the City of Lansing v Pub Serv Comm’n , 470 Mich 154, 166; 680 NW2d 840 (2004).

The probate court implicitly found that MCL 700.2114(4) is amb iguous when it reasoned that applying this subdivision in cases involving afterborn chi ldren would conf lict with other sections of EPIC. Specificall y, the probate court cited MCL 70 0.2114(3), MCL 700.2104, MCL 700.2107, and MCL 700.2108 as conflicting provisions. I will a nalyze each of these statutory sections in turn.

MCL 700.2114(3) provides that a t ermination of parental rights precludes a parent from inheriting:

The permanent termination of parental rights of a minor child b y an order of a court of competent jurisdiction; . . . or by any other process recognized by the law governing the parent-child status at the time of termination, e xcepting termination by emancipation or death, ends kinship between the parents whose r ights are so terminated and the child for purposes of int estate succession by that pare nt from or through the child.

By its plain language, MCL 700.2114(3) applies to actions termi nating parental rights. While MCL 700.2114(3) recognizes that death does not terminate a pare ntal relationship, this has no bearing on the operation of MCL 700.2114(4). MCL 700.2114(4) d oes not terminate the parental relationship by death, i t precludes inheritance if the parent did not acknowledge or refused to support the child. Not only does this case not invo lve termination of parental rights or any law governing parent-child status at the time of termination , but even in a case that did, I am unable to determine any ways in w hich these sections irreconcil ably conflict. I conclude that this subsection does not conflict with MCL 700.2114(4).

MCL 700.2104 provides that “an individual who fails to survive a decedent by 120 hours is considered to have predeceased the decedent for purposes . . . of intestate succession . . . .” This section concerns the death of the child, not the parent, a nd it does not touch on the parentchild relationship at all. This section would not irreconcilab ly conflict with MCL 700.2114(4) even if both the decedent and unborn child died within 120 hour s of each other. I conclude that these sections do not conflict.-8- MCL 700.2107 provides that “[a] re lative of the half blood inh erits the same share he or she would inherit if he or she were of the whole blood.” Nothi ng in MCL 700.2114(4) contradicts this section. MCL 700.2114(4) is only concerned wi th whether a natural father acknowledged or refused to support a child. That child’s blood relationship to other children is not at issue. These sections do not conflict.

MCL 700.2108 provides that “[a]n individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more a fter birth.” Rather than conflicting, this actually supports the appl ication of MCL 700.2114(4) in ca ses where the natural parent predeceases the child. It instructs the probate court to treat an afterborn child as though it was living child at the time of the parent’s death. This section d oes not conflict with MCL 700.2114(4), which does not by its language exclude afterborn c hildren from consideration. I conclude that these se ctions do not conflict.

I conclude that the probate c ourt erred by reading language in to MCL 700.2114(4) to exclude afterborn children. This section is not ambiguous beca use it does not conflict with other sections of EPIC. I recognize that applying MCL 700.2114(4) in cases involving afterborn children may be difficult. But that the statute appears to be inconvenient, is not a reason for this Court to avoid applying plain statutory language. Johnson v Recca , 492 Mich 169, 187; 821 NW2d 520 (2012). Accordingly, I conclude that MCL 700.2114(4) applies in all cases of intestate succession from a chil d to a natural parent, not excl usive of afterborn children.

However, this does not mean that Bierkle is correct that Umble ’s claim is barred as a matter of law. Bierkle’s argument is premised on the presumpti on that a natural father cannot acknowledge or support an afterborn child. I reject this presu mption and conclude that the probate court did not err by denying Bierkle’s motion for summa ry disposition.

As previously discussed, under MCL 700.2108, the probate court should consider the afterborn child of a predeceased father as though it were a liv ing child at the time of his death. I therefore conclude that under MCL 700.2114(4), the probate cour t must determine whether the predeceased natural father fail ed to acknowledge or refused to provide support to the unborn child at the time of the father’s death. Accordingly, this iss ue cannot be resolved as a matter of law.

B. PERSUASIVE AUTHORITY

Additionally, because this is an issue of first impression in Michigan, this Court may consider cases from other jurisdictions as persuasive. See In re Turpening Estate , 258 Mich App 464, 466; 671 NW2d 567 (2003). Oth er jurisdictions hold that a natural father can acknowledge and provide support for a child even if the child dies before i ts birth. While this factual scenario is not directly analogous to a case involving an afterborn chil d, the crux of the argument—that it is impossible for the natural parent to acknowledge and support the child—is the same in both factual scenarios.

In In re Estate of Poole , 328 Ill App 3d 964; 263 Ill Dec 129; 767 NE2d 855 (2002), the Appellate Court of Illinois considered a case in which the ackn owledged biological father of a fetus that was stillborn could inherit through the child. In t hat case, the Third District Appellate-9- Court of Illinois considered whe ther statutory language providi ng that a father could not inherit through an illegitimate child unless the father, during the chi ld’s lifetime, acknowledged the child, established a parental relationship with the child, and supported the child. Id . at 969. The maternal relatives in Poole argued that the father was not eligible to inherit because the child did not have a lifetime and so the father could not acknowledge, su pport, or establish a relationship with her. Id . The court determined that the father could qualify as an eli gible parent because he resided with the child’s mothe r throughout the pregnancy, provi ded financial and emotional support to the mother and through her to the unborn child, and held himself out as the child’s father. Id . at 970.

Similarly, in Williams v Farmer , 2002 CA 02094 SCT; 876 So 2d 300 (Miss, 2004), the Supreme Court considered a statu te that provided that a father could not inherit through an illegitimate child unless the father openly treated the child a s his own and had not refused or neglected to support the child. The father in Williams argued that this statute did not apply when his unborn child died in a car accident because it was impossib le for him to comply with the statutory requirements. Id . at ¶ 8-9, 20. The court found that the statute did apply bec ause the father could acknowledge the fetus and provide support for it d uring the pregnancy. Id . at ¶ 23. The court barred the father fro m inheritance because he had no contact with the child’s mother while she was pregnant, and “did not contribute any support, fi nancial or otherwise” to the mother during or after the pregnancy. Id . at ¶ 26.

I find these cases persuasive. They establish that, in other states with similar statutes, courts have found that it is not impossible for a natural father to acknowledge and support an unborn child.

C. APPLICATION

In this case, the proofs are complicated by the passage of tim e. Carl Umble died in 1931. However, circumstantial evidence and inferences from the eviden ce may support the probate court’s findings. See Kupkowski v Avis Ford, Inc , 395 Mich 155, 166; 235 NW2d 324 (1975) (holding circumstantial evidence and reasonable inferences suff icient to provide proof in a civil case).

Considering acknowledgment, the present state of the law in Co lorado is that a father must consent to be placed on the child’s birth certificate to b e named a father on the birth certificate. See CRS § 19-4-105( 1)(c)(III). There is no evide nce regarding the state of the law in Colorado at the time of Carl Koehler’s birth, but if similar la ws existed, the fact that Carl Umble is listed on Carl Koehler’s birth certificate might provide evi dence of acknowledgment. If the child was acknowledged in Carl Um ble’s obituary, that too may b e additional evidence.

I also note that there are no pres cribed ways in which a fathe r must support the child. See Turpening Estate , 258 Mich App at 468. The language of MCL 700.2114(4) states that this section applies if the parent refused to support the child. There must be some evidence of a refusal to support on the part of the natural parent. For inst ance, if another relative asked the natural father to support the ch ild’s mother but the father den ied that the child was his, this may be evidence of refusing to support the child. See Id . at 468. Similarly, a natural father’s lack of involvement in a pregnancy of whi ch he was aware could provide circumstantial evidence to-10- support an inference that the fat her refused to support the chi ld. In contrast, if a natural father supported the unborn child by suppo rting its mother through the pregnancy or made provisions for familial support, this may be evidence that the predeceased father did in fact support the child. I note that a newspaper article provides evidence that Carl Umble was involved in an ongoing relationship with Koehler u ntil his death, to the point of striking a man who was kissing her and getting into a fatal knife fight. I do not decide whet her the evidence is sufficient to support an inference or findi ng on this point— I simply note th at evidence may exist.

Because the probate court determined that MCL 700.2114(4) did not apply in this case, it did not receive evidence on either of these requirements. I wo uld remand for additional proceedings.

VI. CONCLUSION

It may be difficult for the predeceased natural father of a ch ild born out of wedlock to comply with MCL 700.2114(4), but the statute is not ambiguous, and the proofs are not impossible. MCL 700.2114(4) applies in cases involving the pre deceased natural fathers of afterborn children. In such cases, the probate court must dete rmine (1) whether the man was the child’s natural father, (2) whether the father acknowledged the unborn child, and (3) whether the father refused to suppor t the unborn child.

I would reverse the probate court’s determination that MCL 700 .2114(4) did not apply in this case and remand for further proceedings.

/s/ Peter D. O’Connell