Nicholas David Burnett v. Tracy Lynn Ahola , 921 N.W.2d 535 ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
January 23, 2019 Bridget M. McCormack,
Chief Justice
158531 David F. Viviano,
Chief Justice Pro Tem
158538
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
NICHOLAS DAVID BURNETT, Elizabeth T. Clement
Plaintiff-Appellee, Megan K. Cavanagh,
Justices
v SC: 158531
COA: 338618
Genesee CC: 14-312262-DP
TRACY LYNN AHOLA,
Defendant-Appellant,
and
DEREK AHOLA,
Defendant-Appellee.
_________________________________________/
NICHOLAS DAVID BURNETT,
Plaintiff-Appellee,
v SC: 158538
COA: 338618
Genesee CC: 14-312262-DP
TRACY LYNN AHOLA,
Defendant-Appellee,
and
DEREK AHOLA,
Defendant-Appellant.
_________________________________________/
On order of the Court, the applications for leave to appeal the August 30, 2018
judgment of the Court of Appeals are considered. Pursuant to MCR 7.305(H)(1), in lieu
of granting leave to appeal, we REVERSE the judgment of the Court of Appeals,
VACATE the June 13, 2018 opinion and order of the Genesee Circuit Court, and
REMAND this case to the trial court for further consideration.
Although the plaintiff has asserted the defenses of waiver and estoppel, neither
defense applies in this case. “A true waiver is an intentional, voluntary act and cannot
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arise by implication. It has been defined as the voluntary relinquishment of a known
right.” Landelius v Sackellares, 453 Mich. 470, 480 (1996), quoting Kelly v Allegan
Circuit Judge, 382 Mich. 425, 427 (1969). There is no dispute that neither defendant
knowingly and voluntarily relinquished their respective right to assert intrinsic fraud or
fraud on the court. And because the defendants’ motion for relief from judgment
constitutes a timely challenge to the validity of the paternity judgment in the same civil
action under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq., collateral
estoppel does not apply. See Jones v Chambers, 353 Mich. 674, 680-681 (1958).
Accordingly, on remand, the Genesee Circuit Court shall: (1) conduct an
in-person evidentiary hearing to determine whether the plaintiff committed intrinsic fraud
or fraud on the court during the ROPA proceedings, which shall include consideration of
relevant evidence discovered after entry of the ROPA judgment; and (2) if so, determine
to what, if any, remedy the defendants are entitled. The Genesee Circuit Court is
DIRECTED to expedite its consideration and resolution of this case.
We do not retain jurisdiction.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 23, 2019
t0116d
Clerk