Baum v. Baum, Docket No. 6375
| Decision Date | 30 October 1969 |
| Docket Number | No. 2,Docket No. 6375,2 |
| Citation | 20 Mich.App. 68,173 N.W.2d 744 |
| Parties | Mabel BAUM, Plaintiff-Appellant, v. Robert M. BAUM, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
H. Rollin Allen, Hand, Kiefer, Allen & Ryan, Detroit, for appellant.
John W. Berry, Jr., Flint, for appellee.
Before LESINSKI, C.J., and FITZGERALD and BRENNAN, JJ.
Plaintiff appeals from the circuit court's denial of a motion to reconsider its Sua sponte order vacating a judgment of divorce. The judgment of divorce against defendant was entered August 3, 1964; the circuit court's order vacating the judgment of divorce was entered February 6, 1968.
Plaintiff Mabel Baum filed suit for divorce on August 8, 1962, in the Macomb county circuit court alleging, among other things, that the parties had been married on April 15, 1957 and that a child was born to the marriage on March 7, 1958.
The defendant Robert Baum subsequently appeared and consented to the judgment of divorce, and a judgment was entered encompassing, among other things, visitation rights, alimony and support provisions. The judgment granted custody of the child to the plaintiff and visitation rights to the defendant. Subsequent to the entry of this judgment of divorce there were orders entered modifying the judgment concerning alimony and support, adjusting it according to the defendant's change in employment status. At no time did defendant, in his pleadings, raise the question of or deny the paternity of the child.
On December 13, 1967, plaintiff filed a motion to amend the judgment of divorce so as to place the defendant on probation and have his salary assigned to the Macomb county friend of the court thereby protecting and assuring the plaintiff of the support payments for the child. The defendant filed an answer to this motion wherein he sought affirmative relief from the obligations of alimony and child support arising from the judgment of divorce. In his answer to the motion he asserted, among other things, that the child was not a child of the marriage and that the parties, in fact, were not married until the summer of 1959 sometime later than the date that had been originally pleaded in the plaintiff's complaint for divorce.
The circuit court ordered a hearing on this issue wherein the defendant gave testimony regarding the date of the birth of the child and the date of the marriage of the parties; plaintiff did not testify at this hearing.
The events occurred as follows:
Early in 1957, while still married to a certain Gene Ruzza, but separated from him, the plaintiff began a relationship with Robert Baum. They began going together on a regular basis until November of that year, when Gene Ruzza's divorce from the plaintiff became final. At that time, they began holding themselves out as man and wife. Four months later, on March 7, 1958, the plaintiff gave birth to a child, Keith Baum, whom both parties believed to be illegitimate. To protect the child, the plaintiff and defendant underwent a secret marriage ceremony* on June 25, 1959, and obtained a marriage certificate dated April 15, 1957.
On February 6, 1968, a short time after the hearing, an order was entered by the circuit court vacating the original judgment of divorce and all other orders relating to that judgment. No ruling was made on the motions that brought this matter before the trial court. On May 6, 1968, plaintiff filed a motion to reconsider the order vacating the judgment of divorce. In an order dated June 14, 1968, the motion was denied from which plaintiff appeals.
The record shows that the defendant, subsequent to the entry of the original judgment of divorce, remarried and the status of that marriage will also be governed by this opinion.
The circuit judge in his order and opinion vacating the judgment of divorce sets forth as his reason for this action that a fraud had been perpetrated on the court when the plaintiff falsified the date of marriage in the original complaint for divorce. The court felt that the falsification was for the purpose of legitimatizing the child and felt that this 'was laudable under the unfortunate circumstances of the case.' Nevertheless, the court felt the judgment should be vacated because of the fraud.
For the purposes of this opinion, we will consider the plaintiff's statement of her marriage date as a falsification. However, we are not convinced that such is the case. Plaintiff was married under the secret marriage statute. The intent of that statute is to protect a child born out of the indiscretions of its parents. Since the statute permits a predated marriage certificate and provides only a limited right of disclosure of the actual marriage date, we point out that plaintiff may have been acting within the statute by pleading the secret marriage date. We make no ruling on this specific point as it is unnecessary for purposes of this decision. Further, the facts in this case are not such as would lend themselves to a definitive ruling on this point.
Plaintiff argues that the incorrect recital of the marriage date in the complaint for divorce did not constitute a fraud upon the court sufficient to justify the action of the court in Sua sponte vacating the judgment of divorce some 3 1/2 years later.
The main question in this case is whether the divorce judgment and related orders should have been vacated for fraud on the court. The power to set aside a judgment of divorce for fraud upon the court is unquestioned. Lantinga v. Lantinga (1947), 318 Mich. 78, 27 N.W.2d 504; Allen v. Allen (1954), 341 Mich. 543, 67 N.W.2d 805; Linn v. Linn (1955), 341 Mich. 668, 69 N.W.2d 147; DeHaan v. DeHaan (1957), 348 Mich. 199, 82 N.W.2d 432. Not every concealment or misrepresentation of fact that might be called fraudulent will justify this measure, however. The concealment or misrepresentation must be material to the determination reflected by the judgment. Young v. Young (1955), 342 Mich. 505, 70 N.W.2d 730. Thus, if the determination of the court would not have been different had the facts in question been truthfully represented, the judgment should not be set aside. See Berg v. Berg (1953), 336 Mich. 284, 291, 57 N.W.2d 889; 3 Nelson, Divorce and Annulment (2nd ed), § 28.25, p. 171.
Under this test, it is apparent that the judgment of divorce and the alimony order should not have been vacated. The fact that Keith Baum was conceived during the Ruzza marriage is wholly unrelated to the grounds for the divorce. Nor does subtraction of the seven months between April and November of 1957 sufficiently diminish the period in which Robert and Mabel Baum lived as man and wife as to warrant the conclusion that the court's award of alimony would have been substantially different. The only question of merit is whether the support order should have been vacated.
The fact that Keith Baum's conception occurred during the Ruzza marriage is relevant to the defendant's obligation of support only in that a child conceived during a marriage is presumed to be the legitimate offspring of that marriage. People v. Bedell (1955), 342 Mich. 398, 70 N.W.2d 808; Wechsler v. Mroczkowski (1958), 351 Mich. 483, 88 N.W.2d 394. Yet, the presumption that Gene Ruzza is the father of Keith Baum would not have prevented the court from entering its order of support. The presumption is subject to rebuttal, and although both husband and wife are ordinarily incompetent to testify that the child is not of the union, either may do so if the testimony will not lead to a finding of illegitimacy. In re Wright's Estate (1927), 237 Mich. 375, 211 N.W. 746.
Testimony by the plaintiff that the defendant, not Gene Ruzza, fathered Keith Baum would not have led to such a finding. M.C.L.A. § 702,83 (Stat.Ann. 1969 Cum.Supp. § 27.3178(153)) provides that,
'(U)pon the intermarriage of the parents of a child born out of wedlock * * * such child shall be...
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