Elmore v. Ellis, Docket No. 53599

• Decision Date: 21 July 1982
• Docket Number: Docket No. 53599
• Citation: 115 Mich.App. 609,321 N.W.2d 744
• Parties: Connie ELMORE, Plaintiff-Appellee, v. Jonathan ELLIS, Defendant-Appellant. 115 Mich.App. 609, 321 N.W.2d 744
• Court: Court of Appeal of Michigan — District of US

Page 744

321 N.W.2d 744

Connie ELMORE, Plaintiff-Appellee, v. Jonathan ELLIS, Defendant-Appellant.

Docket No. 53599.

115 Mich.App. 609, 321 N.W.2d 744

Court of Appeals of Michigan.

Submitted Oct. 19, 1981.

Decided April 23, 1982.

Released for Publication July 21, 1982.

[115 MICHAPP 610] Vicky W. Buckfire, Detroit, for defendant-appellant on appeal.

Before T. M. BURNS, P. J., and CAVANAGH and BENSON ^*, JJ.

PER CURIAM.

Following a jury trial and verdict in favor of plaintiff in her paternity action against defendant, the trial court entered a judgment and order of filiation against defendant. After denying a motion for new trial, the court entered an amended order of filiation wherein defendant was ordered to pay $30 per week support for the parties' minor child and to pay the cost of plaintiff's confinement in connection with the birth of the child. After a second motion for new trial was denied, defendant filed an application for delayed appeal which was granted by this Court.

Defendant's appeal arises out of the trial court's denial of defendant's request that a defense witness not included in the witness list pursuant to GCR 1963, 301.10 be allowed to testify. Defendant first contends that GCR 1963, 301.10 does not [115 MICHAPP 611] apply to proceedings under the Michigan Paternity Act, M.C.L. Sec. 722.711 et seq.; M.S.A. Sec. 25.491 et seq., and second, that if GCR 1963, 301.10 does apply in paternity proceedings, the trial court erred in its exercise of discretion by excluding the testimony of the defendant's witness.

The purpose of the Michigan Paternity Act is to provide support for children born out of wedlock. Tuer v. Niedoliwka, 92 Mich.App. 694, 285 N.W.2d 424 (1979); Smith v. Robbins, 91 Mich.App. 284, 283 N.W.2d 725 (1979); Boyles v. Brown, 69 Mich.App. 480, 245 N.W.2d 100 (1976).

The nature of a paternity proceeding is both civil and criminal. These proceedings are "quasi-criminal", affording the defendant some criminal defendants' rights such as the right to a jury trial, the right to appointed counsel, and protection against double jeopardy, but a paternity proceeding defendant is not extended the full panoply of criminal defendants' rights. Smith v. Robbins, supra.

Defendant contends that Sec. 5 of the Paternity Act is in direct conflict with GCR 1963, 301.10. GCR 1963, 301.10 reads as follows:

".10 Notice of Pretrial and Witness List. [GCR 301.10 applies in Wayne County only.] Notice of pretrial conference shall be forwarded by the court to all counsel of record at least 6 weeks prior to the date of such conference. Within 10 days after receipt of such notice, counsel shall exchange lists of all witnesses to be called at the trial. No witness may be called at the trial of the case unless listed in such exchange of witnesses, except by leave granted upon a showing of good cause."

M.C.L. Sec. 722.715; M.S.A. Sec. 25.495 reads as follows:

"Sec. 5. (a) Both the mother and the alleged father [115 MICHAPP 612] shall be competent to testify, but the alleged father shall not be compelled to testify, and if either gives evidence he or she shall be subject to cross examination. * * * "

Defendant asserts that any conflict between these two provisions must be resolved in favor of the Paternity Act. He relies upon this Court's opinion in Pridemore v. Williams, 90 Mich.App. 483, 282 N.W.2d 363 (1979), where this Court held that a putative father may not be compelled to answer interrogatories propounded by the plaintiff-mother because, pursuant to GCR 1963, 730.1, this would be tantamount to compelling defendant to testify against himself, which is expressly forbidden by Sec. 5 of the Paternity Act. This Court in Pridemore held that where there is a direct conflict between the General Court Rules and the Paternity Act, the latter controls and that the General Court Rules governing the submission and answering of interrogatories, GCR 1963, 309 and 313, respectively, were inapplicable in paternity actions. Pridemore, supra, 488, 282 N.W.2d 363.

In criminal cases, the defendant must file a notice of alibi and a list of alibi witnesses. M.C.L. Sec. 768.20; M.S.A. Sec. 28.1043. A paternity defendant is not subject to a similar requirement. Skidmore v. Czapiga, 82 Mich.App. 689, 267 N.W.2d 150 (1978), lv. den. 403 Mich. 810 (1978).

We are persuaded, however, that neither of the above cases compels a conclusion that GCR 1963, 301.10 conflicts with the Paternity Act. GCR 1963, 301.10 is directed to counsel and requires counsel to exchange a list of all witnesses to be called at trial. The Paternity Act contains no conflicting provisions. Pridemore v. Williams, supra. Furthermore, GCR 301.10 does not conflict with the "alibi" statute. The fact that the requirements of GCR [115 MICHAPP 613] 1963, 301.10 may conflict with the intended results of this Court's decision in Skidmore v. Czapiga, supra, is of no consequence. The Supreme Court is charged with the responsibility of establishing the General Court Rules. Const. 1963, art. 6, Sec. 5. Under GCR 1963, 730.1, the Supreme Court has determined that the General Court Rules apply to paternity proceedings unless they conflict with the provisions of the Paternity Act. As noted above, no conflict exists between GCR 1963, 301.10 and the Paternity Act. Therefore, we hold that GCR 1963, 301.10 applies to paternity proceedings.

Despite our resolution of the first issue, we are persuaded that the...