Crego v. Coleman

• Decision Date: 23 October 1998
• Docket Number: Docket No. 192798
• Citation: 591 N.W.2d 277,232 Mich.App. 284
• Parties: Phyllis R. CREGO, a/k/a Phyllis R. Sock, Plaintiff-Appellee, v. Kermit L. COLEMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 277

591 N.W.2d 277

232 Mich.App. 284

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.

Submitted April 29, 1998, at Grand Rapids.

Decided Oct. 23, 1998, at 9:05 a.m.

Released for Publication Jan. 15, 1999.

Robes & Kobliska, P.L.C. by J. Stephen Robs and Mathew Kobliska, Farmington Hills, for the plaintiff.

Steven M. Jentzen, Ypsilanti, for the defendant.

Before HOEKSTRA, P.J., and SAWYER, McDONALD, MURPHY, NEFF, FITZGERALD, and WHITBECK, JJ.

NEFF, J.

Pursuant to MCR 7.215(H), this special panel was convened to resolve the conflict between Crego v. Coleman, 201 Mich.App. 443, 506 N.W.2d 568 (1993) (Crego I ), and a later, vacated case involving the same parties, Crego v. Coleman, 226 Mich.App. 815, 573 N.W.2d 291 (1997) (Crego II ). At issue is the constitutionality of § 3 of the Paternity Act, M.C.L. § 722.13; MSA 25.493, ¹ which allows the parties in a paternity action to reach a settlement barring future recovery or modification of child support. If not for the precedential effect of Crego I, the Crego II panel would have held the statute unconstitutional as violative of the equal protection guarantees of the United States and Michigan Constitutions. We agree with the analysis set forth in Crego II, and thus hold that M.C.L. § 722.13; MSA 25.493 is unconstitutional. Accordingly, we affirm the circuit court's order denying rehearing of an order granting plaintiff's motion for an increase in defendant's child support obligation.

I

In October 1978, plaintiff filed a paternity action alleging that defendant is the father of her daughter, who was born in August 1978. In 1980, the complaint was dismissed pursuant to a settlement agreement reached between the parties in which defendant agreed to pay weekly child support but did not acknowledge paternity. The trial court approved the terms of the settlement, as required by M.C.L. § 722.713; MSA 25.493, and ordered defendant to pay $20 a week in child support pending receipt of the friend of the court's formal recommendation. A second order was entered 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. On January 30, 1981, after receiving the friend of the court recommendation, the court entered a third and final "permanent" order, which required defendant to pay $50 a week until the child's eighteenth birthday "or until further order of the court." Unlike the two previous orders, however, this order was not signed by the parties, nor did their attorneys approve its form or substance.

In the early 1990s, plaintiff filed a motion to modify the child support order. The trial court dismissed plaintiff's motion on the basis of res judicata. A divided panel of this Court affirmed, holding that the parties' settlement agreement was binding and precluded a modification of defendant's support obligation. ² Crego I, supra at 447, 506 N.W.2d 568. The Court also rejected plaintiff's claim that M.C.L. § 722.713; MSA 25.493 denies children born outside marriage their constitutional right of equal protection of the law. Id. at 446, 506 N.W.2d 568.

Two years later, 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; MSA 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. ³ Following the decision in Dones, plaintiff renewed her motion for modification of the support order. The trial court concluded that it was required to follow Dones, even though it conflicted with Crego I, as long as the parties were afforded an opportunity to resolve any issue regarding paternity with blood tests if they so desired.

Defendant appealed, arguing that Crego I was controlling and that M.C.L. § 722.713; MSA 25.493 does not violate the equal protection clause. The panel in Crego II agreed that Crego I was controlling, but stated that if it were not required to follow Crego I, it would find the statute unconstitutional.

II

Children have an inherent right to parental support. Evink v. Evink, 214 Mich.App. 172, 175-176, 542 N.W.2d 328 (1995). For children born in wedlock, but whose parents divorce or separate, our Legislature has provided statutory procedures to modify support orders. For example, M.C.L. § 552.17(1); MSA 25.97(1) provides:

The court may, from time to time after its issuance, on the petition of either of the parents, revise, and alter a judgment concerning the care, custody, maintenance, and support of some or all of the children, as the circumstances of the parents, and the benefit of the children require.

Moreover, it is well settled that in a divorce action, the court may modify a support order even if the parties had entered into an agreement regarding support. Johns v. Johns, 178 Mich.App. 101, 106, 443 N.W.2d 446 (1989); see also Wiersma v. Wiersma, 241 Mich. 565, 566, 217 N.W. 767 (1928) ( " 'parents may not bargain away the children's welfare, ... [and] the court may always do what seems reasonable and necessary to protect the children's rights' "). Similarly, children born outside marriage who are the subject of a filiation order are permitted to seek modification of child support orders, despite contrary agreements between the parties. Boyles v. Brown, 69 Mich.App. 480, 245 N.W.2d 100 (1976); MCL 722.720; MSA 25.500.

In sharp contrast, the statute at issue here, M.C.L. § 722.713; MSA 25.493, provides as follows:

(a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.

(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.

Thus, children born outside marriage who are not the subject of a filiation order are statutorily denied the right to seek modification of support orders, a right expressly granted to other children. Plaintiff argues that the denial of this right violates the constitutional guarantees of equal protection of the law. We agree.

III

The Equal Protection Clauses of the United States Constitution and the Michigan Constitution are coextensive, Moore v. Spangler, 401 Mich. 360, 370, 258 N.W.2d 34 (1977), and provide that no person shall be denied equal protection of the law. U.S. Const., Am. XIV; Const. 1963, art. 1, § 2. This 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).

A

The first step in an equal protection analysis is to determine the appropriate level of judicial scrutiny. The reviewing court will use one of three tests, depending on the type of classification and the nature of the interest at issue. Where a statute creates an inherently suspect classification, such as race, alienage, ethnicity, and national origin or affects a fundamental interest, the "strict scrutiny" test applies. Plyler v. Doe, 457 U.S. 202, 216-217, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Under this test, the statute will be upheld only if the state "demonstrate[s] that its classification scheme has been precisely tailored to serve a compelling governmental interest." Id. at 217, 102 S.Ct. 2382. The "rational basis" test is applied when the classification is not inherently suspect or a fundamental interest is not involved. Id. at 216, 102 S.Ct. 2382. Under this test, the legislation is presumed to be constitutional and the party challenging the statute has the burden of proving that the legislation is arbitrary and thus irrational. Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 668, 232 N.W.2d 636 (1975).

Under the third, or "substantial relationship" test, a statutory classification will be struck down as unconstitutional unless it is "substantially related to the achievement of the important governmental objective." Dep't of Civil Rights ex rel. Forton v. Waterford Twp. Dep't of Parks & Recreation, 425 Mich. 173, 191, 387 N.W.2d 821 (1986) (emphasis in original). Without question, classifications based on illegitimacy are subject to this intermediate, or "heightened" scrutiny. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988); Spada v. Pauley, 149 Mich.App. 196, 203, 385 N.W.2d 746 (1986). Therefore, we must determine whether the statute's classification, which denies children born outside marriage the right to seek modification of support on changed circumstances, is substantially related to an important state interest. ⁴

B

The overriding purpose of the Paternity Act is to see that minor children born outside marriage are supported and cared for. Whybra v. Gustafson, 365 Mich. 396, 400, 112 N.W.2d 503 (1961). This Court has stated, "The announced public policy of this state is to treat children born out of wedlock as no less deserving of support than those born in wedlock." Smith v. Robbins, 91 Mich.App. 284, 289, 283 N.W.2d 725 (1979). We agree with the panel in Crego II that no "substantially related" state interest exists that would sustain the classification contained in M.C.L. § 722.713; MSA 25.493. ⁵ In upholding the constitutionality of M.C.L. § 722.713; MSA 25.493, Crego I relied on the father's interest in a final settlement of paternity matters. In the context...