Atkinson v. Atkinson

• Decision Date: 17 July 1987
• Docket Number: Docket No. 93215
• Citation: 160 Mich.App. 601,408 N.W.2d 516
• Parties: Harold James ATKINSON, Plaintiff-Appellant, v. Terri Nance ATKINSON, Defendant-Appellee. 160 Mich.App. 601, 408 N.W.2d 516, 84 A.L.R.4th 643
• Court: Court of Appeal of Michigan — District of US

Page 516

408 N.W.2d 516

Harold James ATKINSON, Plaintiff-Appellant, v. Terri Nance ATKINSON, Defendant-Appellee.

Docket No. 93215.

160 Mich.App. 601, 408 N.W.2d 516, 84 A.L.R.4th 643

Court of Appeals of Michigan.

Submitted Nov. 17, 1986.

Decided June 8, 1987.

Released for Publication July 17, 1987.

[160 MICHAPP 604] Michael A. Robbins and Richard S. Victor, Birmingham, for plaintiff-appellant.

Paul W. Harty, P.C. (by Paul W. Harty), Farmington Hills, for defendant-appellee.

Before SHEPHERD, P.J., and WAHLS and SULLIVAN, JJ.

WAHLS, Judge.

Plaintiff, Harold J. Atkinson, appeals as of right from an Oakland Circuit Court judgment of divorce. The issues on appeal generally involve the award of custody of the couple's child to defendant, Terri N. Atkinson, the denial of visitation privileges to plaintiff, the award of attorney fees to defendant, and the refusal of the trial court to allow the testimony of an expert witness. We hold that a wife may establish the nonpaternity of a husband in a divorce action through use of blood testing, but that, notwithstanding the fact that the husband is not the biological father of a child born during the marriage, the husband may acquire rights of paternity under the theory of "equitable parent" and the analogous doctrine of "equitable adoption."

The parties were married on March 1, 1973. The only child of the marriage, James Baird Atkinson (Baird), was born on August 1, 1981. Defendant left the marital home with Baird on February 5, 1985, and, in March, 1985, plaintiff filed for divorce. During the divorce proceeding, defendant contended that plaintiff was not the biological father of Baird and plaintiff vigorously argued [160 MICHAPP 605] that he was Baird's father. The trial court awarded defendant custody of Baird and attorney fees and denied plaintiff custody and visitation privileges.

Plaintiff's first argument is that he should not have been compelled to submit to a human leukocyte antigen (HLA) blood test to determine the paternity of a child he has always treated as his own.

The issue of whether the court in a divorce case may compel the husband to submit to blood testing in order to determine whether he is the biological father of a child born during the marriage has never been addressed by a Michigan appellate court. Originally, Michigan adhered to Lord Mansfield's Rule, which prohibited testimony by either spouse in a divorce action that showed a child born during the marriage to be illegitimate. Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977). However, Michigan shifted away from that prohibition in Serafin, wherein the Supreme Court determined that the policy reasons behind Lord Mansfield's Rule of reducing the number of public charges and preserving family peace and harmony were no longer viable. The Court noted that illegitimacy is not held in such low regard as it use to be, and that state and federal laws now serve to lessen arbitrary distinctions formerly made between legitimate and illegitimate children. Id., 636, 258 N.W.2d 461. See Hackley v. Hackley, 426 Mich. 582, 586, 395 N.W.2d 906 (1986). The Court also acknowledged the viability of the strong presumption of legitimacy that attaches to children born during a marriage, and held that this presumption may only be rebutted by clear and convincing evidence. Serafin, supra, 401 Mich. 636, 258 N.W.2d 461. In other words, although the burden of proof is high, a putative parent may now rebut the legitimacy of a child born to the [160 MICHAPP 606] couple during their marriage. Accordingly, defendant was entitled to offer evidence that plaintiff is not the biological father of Baird.

Plaintiff asserts that the trial court acted pursuant to the Paternity Act, M.C.L. Sec. 722.711 et seq.; M.S.A. Sec. 25.491 et seq., in ordering him to submit to the test, and that since the purpose of the act is to provide for the support of minors, it was error to force him to submit to the test in this case. There is no indication in the trial court's order, however, that it was acting pursuant to the Paternity Act when it ordered the test. Furthermore, it is now well-established that in divorce actions the court may determine whether the husband is the father of the wife's child. M.C.L. Sec. 552.16; M.S.A. Sec. 25.96; Lynch v. Lynch, 127 Mich.App. 34, 35, 338 N.W.2d 413 (1983); Gonzales v. Gonzales, 117 Mich.App. 110, 114, 323 N.W.2d 614 (1982).

As noted above, in most cases where paternity of a minor child is at issue, the putative father is claiming that he is not the biological father and consequently not responsible for the child's financial support. Such was the case in Serafin, supra, where the Court stated:

"In our view the public peace and respect for the law are enhanced, not by arbitrarily assigning the duty of support to a man who is not the father of the child, but by allowing him to contest paternity by his best evidence." 401 Mich. 635, 258 N.W.2d 461 (emphasis added).

Similarly, in Shepherd v. Shepherd, 81 Mich.App. 465, 470, 265 N.W.2d 374 (1978), this Court held that the plaintiff husband, who was challenging his paternity, should be able to present "his potential best evidence" to overcome the presumption of legitimacy; the results of blood grouping tests were therefore admissible. It is thus a natural extension [160 MICHAPP 607] of the "best evidence" rule that a mother challenging the father's paternity should also be allowed to present her best evidence. The HLA test is extremely reliable in determining the parentage of a child. See In re Flynn, 130 Mich.App. 740, 760, 344 N.W.2d 352 (1983). This reliability, coupled with a mother's right to present the best evidence and the court's role of determining the parentage of minor children, leads us to the conclusion that it is within the court's power in a divorce case to order an individual to submit to an HLA blood test in order to determine paternity of a child born during the marriage.

Plaintiff also relies on the doctrine of equitable estoppel in arguing that he should not have been compelled to undergo the HLA testing. Equitable estoppel arises when one causes another, by acts, representations, or silence, intentionally or through culpable neglect, to believe in the existence of some material fact and to detrimentally rely on the existence of such fact. Nygard v. Nygard, 156 Mich.App. 94, 401 N.W.2d 323 (1986). Although this theory may be applied to a divorce proceeding, equitable estoppel does not apply here. Defendant's claim that plaintiff is not Baird's biological father was made early in the proceedings. Thus, a representation by defendant of plaintiff's paternity upon which plaintiff may have relied could not have existed. Id.; Johnson v. Johnson, 93 Mich.App. 415, 419, 286 N.W.2d 886 (1979). See Hackley, supra, 426 Mich. at 596, 395 N.W.2d 906.

Plaintiff's second contention is that the trial court erred in admitting the HLA blood test results because an insufficient foundation was laid. We disagree. The foundation requirements for the admission of HLA test results in a paternity action are that the blood tested was in fact that of the defendant, the plaintiff, and the child, and that [160 MICHAPP 608] the test results were based on reliable blood samples. Willerick v. Hanshalli, 136 Mich.App. 484, 488, 356 N.W.2d 36 (1984). This foundation includes establishing a chain of identification from the time the blood samples were taken to the time the samples were analyzed, either by direct or circumstantial evidence. Id.; Zyskowski v. Habelmann, 150 Mich.App. 230, 244-245, 388 N.W.2d 315 (1986), lv. gtd. 426 Mich. 865 (1986).

In the present case, a medical technologist testified from personal knowledge as to the identification and labeling procedures for blood samples, and as to the procedures used when samples are taken out of the locked box in which they are kept. Sufficient evidence was presented to show that the blood samples were those of the parties and of Baird and that the HLA blood tests were reliable and relevant evidence. Zyskowski, supra; MRE 406.

Plaintiff's third argument is that the trial court erred in treating him as a third party because of the absence of a biological relationship between Baird and himself, rather than treating him as a parent due to the close father-son relationship the two shared, in deciding custody and visitation. In making this argument, plaintiff asks us to adopt the doctrine of "equitable parent." This is a novel request. However, we find ample support in granting the request, especially in the present circumstances. Therefore, we adopt the doctrine of "equitable parent" and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the [160 MICHAPP 609] complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support. We hold that the husband may be considered the "equitable parent" under these circumstances and remand this case in order to allow the circuit court to reevaluate custody and visitation, treating plaintiff as a natural parent of Baird.

The first thing we have considered in deciding to adopt this new doctrine is that the Child Custody Act "is equitable in nature" and its provisions are to be liberally construed, M.C.L. Sec. 722.26; M.S.A. Sec. 25.312(6). Therefore, a basis for fashioning an "equitable parent" doctrine is present.

Turning to the case law interpreting this act, it is generally recognized that biological parents are obligated by law to maintain and support their children. West v. West, 241 Mich. 679, 684, 217 N.W. 924 (1928); M.C.L. Sec....