STATE OF MICHIGAN

COURT OF APPEALS

 

 

JULIE KAY DEVORMER a/k/a JULIE KAY

GAGE,

Plaintiff-Appellee,

 

FOR PUBLICATION

April 21, 2000

9:20 a.m.

v

No. 216986

Ionia Circuit Court

JAMES EDWIN DEVORMER,

LC No. 93-015541-DM

Defendant-Appellant.

Before: Sawyer, P.J., and Gribbs and McDonald, JJ.

PER CURIAM.

Defendant appeals by leave granted a circuit court order denying his motion for parenting time with his son pursuant to MCL 722.27a(5); MSA 25.312(7a)(5). We reverse and remand for the trial court to determine whether awarding parenting time to defendant would be in the best interest of the child.

The relevant facts are not disputed. Plaintiff and defendant were married in 1989. Plaintiff had a daughter from a previous marriage. Plaintiff and defendant had a son, Jacob, during their marriage, who is the child involved in the present dispute. Jacob was born January 15, 1992. On October 18, 1993, defendant pleaded guilty to second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a) (sexual contact with a person under thirteen) for acts involving plaintiffís daughter. Shortly thereafter, on November 17, 1993, plaintiff filed for divorce. While the divorce was pending, defendant was sentenced to four to fifteen yearsí imprisonment for his criminal sexual conduct conviction. The interim order for custody, visitation, and child support granted sole custody of Jacob to plaintiff and reserved the issue of visitation, noting that "visitation may be established upon [defendantís] release from incarceration by petition to the [c]ourt." The divorce judgment was entered June 17, 1994, and provided that defendant had "no present right of visitation" with his son and "no future visitation until approved by the [c]ourt."

Defendant was released from prison in December 1997. On February 17, 1998, he filed a motion seeking visitation with his son. Defendant alleged that while incarcerated he completed a twenty-four month program of group psychotherapy for sex offenders with 100% attendance and that he was continuing his counseling outside of prison. Defendant also claimed that he had not received any misconduct tickets while incarcerated and that his parole agent was not opposed to defendant seeking supervised parenting time with his son. Plaintiff opposed defendantís motion, alleging that defendant posed a danger to Jacob.

Defendantís motion was initially heard before the friend of the court referee. The referee brought MCL 722.27a(5); MSA 25.312(7a)(5) to the attention of the parties. This statute provides that if an individual is convicted of certain criminal sexual conduct crimes and the victim is "the individualís child," parenting time shall not be granted with the victim or a sibling of the victim without the consent of both the other parent and the child, if the child is of sufficient age to express his or her desires. Defendant argued that the statute did not apply because the CSC victim was not his child. However, the referee found that the statute applied because the CSC victim was defendantís stepchild and because defendant was in loco parentis to her. The referee noted that at the time of the crime, the CSC victim looked to defendant as a parent. The referee found it was clear that Jacob was a sibling of the CSC victim. In light of plaintiffís refusal to consent to granting defendant parenting time with Jacob, the referee recommended denying defendantís motion under the statute.

Defendant filed objections to the refereeís recommended order and a de novo hearing was held before the circuit court. The circuit court rejected defendantís arguments and found that the statute applied because defendant was in loco parentis to the CSC victim. Moreover, the court found the statute was clearly intended to protect the sibling of the CSC victim and that Jacob clearly was her sibling. The court also rejected defendantís argument that applying the statute in this case was an improper retroactive application of the statute.

Defendant raises the same arguments on appeal as he did in the lower court. We first address the application of the statute. The issue of statutory construction of subsection (5) of ß 7a of the Child Custody Act is an issue of first impression. The statute provides:

Notwithstanding other provisions of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of Act No, 328 of the Public Acts of 1931 and the victim is the individualís child, the court shall not grant parenting time with that child or a sibling of that child to that individual, unless both the childís other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the parenting time. [MCL 722.27a(5); MSA 25.312(7a)(5).]

Defendant admits that he has been convicted of an enumerated offense of criminal sexual conduct. The question is whether the victim of the offense for which he was convicted, defendantís stepdaughter, is his "child" under the statute. Subsection (5) does not define the term "child," but it is defined in ß 2 of the Child Custody Act as "minor child and children." MCL 722.22(c); MSA 25.312(2)(c). This definition does not address the issue presented in this case.

Statutory interpretation is a question of law that this Court reviews de novo. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The starting point in every case involving construction of a statute is the language itself. House Speaker v State Administrative Board, 441 Mich 547, 567; 495 NW2d 539 (1993); Colbert v Conybeare Law Office, ___ Mich App ___; ___ NW2d ___ (Docket No. 211467, decided February 4, 2000), slip opinion at 5. Nothing will be read into a statute that is not within the manifest intent of the Legislature as gathered from the act itself. In re SR, 229 Mich App 310, 314; 581 NW2d 291 (1998). Accordingly, if the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the language as written. Rowell v Security Steel Processing Co, 445 Mich 347, 353; 518 NW2d 409 (1994); State Defender Union Employees v Legal Aid & Defender Assín, 230 Mich App 426, 431; 584 NW2d 359 (1998). Where the language employed by the Legislature is susceptible to more than one interpretation, judicial construction is justified. Rowell, supra at 353.

We do not believe the statutory language in this case is ambiguous. The Legislature specified that in order for the statute to apply, the child victim must be "the individualís child." The Legislature chose this narrow term rather than the broad terms it used to describe the relationship between the perpetrator and the victim in the CSC statutes. For example, the offense that defendant was convicted of in this case involves sexual contact. In this case, defendant was convicted of second-degree CSC because his actions involved a person under the age of thirteen. MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). However, a person may also be convicted of second-degree CSC when their victim is between the ages of thirteen and sixteen years old and "the actor is a member of the same household as the victim," or "the actor is related by blood or affinity to the fourth degree to the victim," or "the actor is in a position of authority over the victim and the actor used this authority to coerce the victim to submit." MCL 750.520c(1)(b)(i)(ii)(iii); MSA 28.788(3)(1)(b)(i)(ii)(iii). The first-degree CSC statute, which involves sexual penetration, makes the same distinctions. MCL 750.520; MSA 28.788(2). In addition, where the sexual penetration is with a person who is between the ages of thirteen and sixteen and these relationships do not exist between the perpetrator and the victim, the perpetrator is guilty of third-degree CSC, rather than first-degree CSC. MCL 750.520d(1)(a); MSA 28.788(4). Moreover, the Legislature defined the term "child" extensively in the probate code, and that definition specifically excludes a stepchild. MCL 700.3(4); MSA 27.5003(4). Furthermore, under subsection (5), in order for parenting time to be granted to an individual convicted of CSC involving that individualís child, the "childís other parent" must consent. This phrase implies that there are only two parents of the child, suggesting either a biological parental relationship or a legal parental relationship, such as adoption, exists between the individual and the child victim. For all of these reasons, we believe that subsection (5) can only be interpreted one way, and, therefore, it is not ambiguous. Under the plain language of the statute, plaintiffís daughter is not defendantís child for purposes of subsection (5).

We note the trial court partially relied upon its conclusion that the Legislature intended to protect the sibling of the CSC victim when it enacted subsection (5). We do not disagree with this conclusion. However, we believe that the trial courtís reasoning impermissibly expands the statuteís protection. As we have explained, the Legislature limited the situations the statute would apply by using the narrow terms. Moreover, the legislative history indicates that the Legislature intended the statute apply in limited circumstances. Courts may examine the legislative history of an act to ascertain the reason for the act and the meaning of its provisions. USAA Ins Co v Houston General Ins Co, 220 Mich App 386, 391; 559 NW2d 98 (1996). In discussing the content of the bill, the legislative history states:

The bill would amend the Child Custody Act to do the following:

* * *

generally prohibit a court from awarding custody or visitation of a child to a biological parent who had been convicted of criminal sexual conduct involving that child or his or her sibling. However, custody of the child victim or his or her sibling could be awarded to the offender with the agreement of both the childís parent and the child or sibling (providing the court considered the child or sibling old enough). [House Legislative Analysis, HB 4064, January 24, 1994, (emphasis added).]

Where the Legislature has unambiguously conveyed its intent in a statute, our role is to apply the terms of the statute to the circumstances in a particular case, not to impose different policy choices than those selected by the Legislature. People v McIntyre, 461 Mich 147, 152-153; 599 NW2d 102 (1999). Here, the Legislature has clearly spoken, and the protections of subsection (5) do not apply to this case. Accordingly, the trial court erred in denying defendantís motion for parenting time with Jacob under MCL 722.27a(5); MSA 25.312(7a)(5).

In stating this holding, we emphasize that the only issue before this Court is the interpretation of MCL 722.27a(5); MSA 25.312(7a)(5). The trial court still must determine whether granting defendant parenting time would be in the best interest of Jacob. MCL 722.27a(1); MSA 25.312(7a)(1); Deal v Deal, 197 Mich App 739, 741-742; 496 NW2d 403 (1993). We remand this matter to the trial court for this purpose.

In light of our holding that subsection (5) does not apply to this case, we need not address defendantís argument that the trial court erred by giving retroactive application of the statute.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ David H. Sawyer
/s/ Roman S. Gribbs
/s/ Gary R. McDonald