Crego v. Coleman

• Decision Date: 14 November 1997
• Docket Number: Docket No. 192798
• Citation: 226 Mich.App. 815,573 N.W.2d 291
• Parties: Phyllis R. CREGO, a/k/a Phyllis R. Sock, Plaintiff-Appellee, v. Kermit L. COLEMAN, Defendant-Appellant. . Released
• Court: Court of Appeal of Michigan — District of US

Page 291

573 N.W.2d 291

226 Mich.App. 815

Phyllis R. CREGO, a/k/a Phyllis R. Sock, Plaintiff-Appellee, v. Kermit L. COLEMAN, Defendant-Appellant.

Docket No. 192798.

Court of Appeals of Michigan.

Released Nov. 14, 1997, at 9:05 a.m.

Vacated Nov. 26, 1997.

Released for Publication Feb. 10, 1998.

Before DOCTOROFF, P.J., and MacKENZIE and GRIFFIN, JJ.

ORDER

Crego v. Coleman, Docket No. 192798. The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between the second Court of Appeals decision in this case and a prior decision reported as Crego v. Coleman, 201 Mich.App. 443, 506 N.W.2d 568 (1993).

The Court further orders that the second opinion in this case released November 14, 1997, is hereby vacated.

The appellant may file a supplemental brief within 28 days of the clerk's certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.

GRIFFIN, Judge.

Defendant appeals by leave granted a circuit court order denying rehearing of an order granting plaintiff's motion for an increase in defendant's child support obligation. We reverse only because we are compelled to do so pursuant to MCR 7.215(H). Were we allowed, we would affirm and hold M.C.L. § 722.713; M.S.A. § 25.493 unconstitutional as violative of the equal protection guarantees of the United States and Michigan Constitutions.

I

The relevant facts are not in dispute and, except for the most recent developments, are set forth in our previous decision, Crego v. Coleman, 201 Mich.App. 443, 506 N.W.2d 568 (1993). In October 1978, plaintiff filed a paternity action alleging that defendant fathered her daughter, born in August 1978. ¹ In 1980, the trial court dismissed the complaint pursuant to a settlement agreement reached between the parties whereby defendant agreed to pay weekly child support but did not acknowledge paternity. The trial court's original order, dated July 10, 1980, approved the terms of the settlement as required by § 3 of the Paternity Act, M.C.L. § 722.713; M.S.A. § 25.493, ² and ordered defendant to pay $20 a week in child support until the friend of the court made its formal recommendation. Pending receipt of the recommendation, the trial court entered a second order, on September 26, 1980, requiring defendant to pay $35 a week. This second order specified the parties' intent that the support order be "not modifiable" and that the matter "shall stand settled, discontinued and dismissed" with respect to defendant. After the recommendation was received, a final "permanent" order was entered on January 30, 1981, requiring defendant to pay $50 a week until the child was eighteen years old "or until further order of the court."

In the early 1990s, plaintiff filed a motion to modify the child support order, but the trial court dismissed on the basis of res judicata. A divided panel of this Court affirmed, holding that the parties' paternity settlement was controlling and precluded a modification of defendant's support obligation. ³ The majority applied M.C.L. § 722.713(b); M.S.A. § 25.493(b) to the effect "[t]hat [the] statutory bar prevents modification of the support order unless the parties provide for modification in the language of their settlement agreement." Crego, supra at 447, 506 N.W.2d 568. In addition, the Crego majority rejected plaintiff's claim that M.C.L. § 722.713; M.S.A. § 25.493 denies illegitimate children their constitutional right of equal protection of the law:

In Hisaw [v. Hayes, 133 Mich.App. 639, 642, 350 N.W.2d 302 (1984) ], this Court rejected the equal protection argument raised on behalf of an illegitimate child and recognized the binding effect of a settlement in a paternity matter. Declining to follow Boyles v. Brown, 69 Mich.App. 480, 245 N.W.2d 100 (1976), and relying on M.C.L. § 722.713; M.S.A. § 25.493, this Court held:

"The right of an illegitimate child to equal protection of law does not justify depriving the alleged father of the right to a trial of a disputed question of paternity. We decline to follow Boyles, supra, to the extent that in a paternity settlement like that at issue here, it would permit a court to increase an alleged father's support obligation, albeit leaving him bound by his agreement to surrender his right to a judicial determination of paternity. Such a settlement cannot be modified, the only judicial remedy being rescission. [Hisaw, supra at 644-645, 350 N.W.2d 302.]"

We believe Hisaw to be the better-reasoned opinion, and we choose to follow it. [Crego, supra at 446, 506 N.W.2d 568.]

Crego v. Coleman, Docket No. 192798. The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between the second Court of Appeals decision in this case and a prior decision reported as Crego v. Coleman, 201 Mich. App. 443, 506 N.W.2d 568(1993).

Subsequently, in Dones v. Thomas, 210 Mich.App. 674, 534 N.W.2d 221 (1995), a different panel of this Court declared M.C.L. § 722.713; M.S.A. § 25.493 unconstitutional as violative of the constitutional guarantees of equal protection because it authorizes nonmodifiable child support awards in paternity actions, while child support awards in divorce actions always remain modifiable. On the basis of this later decision, plaintiff renewed her motion for modification of the support order, seeking to compel defendant to provide medical insurance for her daughter. The circuit court concluded that it was required to follow Dones, the more recent decision, and granted plaintiff's motion.

II

On appeal, defendant argues that the lower court committed error requiring reversal by following Dones rather than this Court's prior and precedentially binding decision in Crego. We agree. Pursuant to MCR 7.215(H), the lower court and this Court must follow Crego, the first post-November 1, 1990, published opinion to render a holding with respect to the issue. Therefore, Crego is the controlling precedent, and the lower court erred in following Dones. However, were we not bound by Crego, we would follow Dones and hold M.C.L. § 722.713; M.S.A. § 25.493 unconstitutional as violative of the equal protection guarantees of the United States and Michigan Constitutions. In doing so, we would join Illinois, Wisconsin, and the United States District Court for the Southern District of New York in declaring that state statutory schemes that bar modification of child support orders in paternity actions, but not in divorce actions, deny illegitimate children equal protection of the law.

III

The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied equal protection of the law. U.S. Const., Am. XIV; Const.1963, art. 1, § 2; Spada v. Pauley, 149 Mich.App. 196, 203, 385 N.W.2d 746 (1986). The constitutional guarantee requires that persons similarly situated be treated alike. El Souri v. Dep't of Social Services, 429 Mich. 203, 207, 414 N.W.2d 679 (1987). While the clause restrains the use of governmental classifications generally, federal and state courts have specified that statutes that distinguish on the basis of certain "protected" classes such as race, alienage, gender, or legitimacy must be judged by stricter standards. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Dep't of Civil Rights ex rel. Forton v. Waterford Twp. Dep't of Parks & Recreation, 425 Mich. 173, 190, 387 N.W.2d 821 (1986); Frame v. Nehls, 208 Mich.App. 412, 528 N.W.2d 773 (1995); Spada, supra at 203, 385 N.W.2d 746. Classifications based on illegitimacy are subjected to intermediate or "heightened scrutiny" and are unconstitutional unless "substantially related to permissible state interests." Spada, supra at 203, 385 N.W.2d 746.

Pursuant to M.C.L. § 722.713; M.S.A. § 25.493, the parties in a paternity action may reach a settlement agreement that permanently bars illegitimate children from obtaining modification of child support to meet changing needs. In other words, the statute authorizes a putative father to waive a judicial determination of paternity in exchange for a permanent, unmodifiable support order, thus forever precluding illegitimate children from obtaining additional support. In contrast, children of divorced couples may petition the court to modify a support award upon a showing of a change in circumstances. M.C.L. § 552.17(1); M.S.A. § 25.97(1). ⁴ Thus, unlike legitimate children, illegitimate children not subject to a filiation order may be foreclosed from future modification of child support, regardless of need.

IV

In our prior decision in this matter, this Court upheld as constitutional the statutory scheme at issue. ⁵ However, in the present appeal we conclude that Crego was wrongly decided for the reason that the unequal statutory treatment based on illegitimacy cannot withstand heightened constitutional scrutiny.

In Gerhardt v. Estate of Moore, 150 Wis.2d 563, 441 N.W.2d 734 (1989), the Wisconsin Supreme Court invalidated on equal protection grounds a similar statute. In Gerhardt, the court rejected the rationale of Crego on the basis that the father's interest in a final settlement is "undercut by the countervailing state interest in the continued adequacy of support for the child." Id. at 573-574, 441 N.W.2d 734. The Wisconsin Supreme Court stated that "it is difficult to see how the interest in promoting settlements justifies a total waiver of future child support regardless of the child's future needs or the father's ability to pay." Id. at 573, 441 N.W.2d 734; accord Williams v. Lambert, 902 F.Supp. 460 (S.D.N.Y., 1995). See also Dep't of Public Aid ex rel. Cox v. Miller, 146 Ill.2d 399, 405-410, 166 Ill.Dec. 922, 586 N.E.2d 1251 (1992) (agreeing with the reasoning in Gerhardt, supra ).

Earlier, in Boyles v. Brown...