Hall v. Novik

• Citation: 256 Mich. App. 387,663 N.W.2d 522
• Decision Date: 13 June 2003
• Docket Number: Docket No. 232260.
• Parties: Linda M. HALL, n/k/a Linda M. Thomas, Plaintiff-Appellee, v. Michael NOVIK, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

663 N.W.2d 522

256 Mich. App. 387

Linda M. HALL, n/k/a Linda M. Thomas, Plaintiff-Appellee, v. Michael NOVIK, Defendant-Appellant.

Docket No. 232260.

Court of Appeals of Michigan.

Submitted April 8, 2003, at Detroit.

Decided April 29, 2003, at 9:05 a.m.

Released for Publication June 13, 2003.

Alan R. Miller, P.C. (by Alan R. Miller and John J. Schrot, Jr.), Birmingham, for the defendant.

Howard Yale Lederman, Berkley, for the plaintiff.

Before HOEKSTRA, P.J., and BANDSTRA and SAAD, JJ.

BANDSTRA, J.

Defendant Michael Novik appeals by leave granted from an order of the circuit court denying his motion for modification of previous child-support orders. We affirm in part, reverse in part, and remand.

Background Facts and Proceedings Below

While unmarried, plaintiff Linda M. Hall gave birth to a child on December 20, 1990, following a relationship with Novik. On February 15, 1991, Hall filed a complaint for paternity against Novik. With the assistance of attorneys, the parties entered into a process of negotiation and an agreement was reached resulting in a court-approved consent order entered on December 23, 1991. This order provided that Novik did not acknowledge that he was the father of Hall's child but that he would make payments to Hall for the child's support and education at a set level, as well as provide a policy of health-care insurance on the child's behalf. The circuit court, in its order approving the parties' agreement, specified that the agreement made "adequate provision for the support and education" of the child. Further, the order expressly barred any remedies that might otherwise be available to Hall against Novik, specifically disallowing any later modification of the agreement. The parties' agreement and the court order approving it were entered pursuant to M.C.L. § 722.713;¹ the parties do not argue that any provision of the statute authorizing this agreement and order (hereinafter the original support order) was not complied with fully.

During the ensuing decade, the constitutionality of the statute upon which this arrangement was based became the subject of a number of appellate-court decisions. Initially, a divided panel of this Court enforced a similar nonmodifiable settlement agreement, rejecting a claim that the statute was an unconstitutional denial of equal protection to illegitimate children. Crego v. Coleman, 201 Mich.App. 443, 446-447, 506 N.W.2d 568 (1993) (Crego I). In 1995, in a separate case, a panel of our Court reached the opposite conclusion on the constitutional question and, because the statute underlying a nonmodifiable support agreement was thus struck down, held that the agreement could be modified through a further court order. Dones v. Thomas, 210 Mich.App. 674, 679-680, 534 N.W.2d 221 (1995)

. As a result of Dones, the statute was repealed. See Sturak v. Ozomaro, 238 Mich.App. 549, 556, 606 N.W.2d 411 (1999). However, that repeal did not affect orders, like that at issue here, that were entered while the statute was still in effect. The Dones Court did not consider Crego I. However, the Crego case returned to our Court and another panel decided that it was required to follow Crego I and uphold the constitutionality of the statute, although it agreed with the Dones panel's holding that the statute was unconstitutional. Crego v. Coleman, 226 Mich.App. 815, 821, 573 N.W.2d 291 (1997) (Crego II). The opinion in Crego II was then vacated, and a special panel, convened to resolve this conflict of authority, MCR 7.215(H)(3), concluded that the statute was an unconstitutional violation of the equal-protection guarantees of the United States and Michigan constitutions. Crego v. Coleman, 232 Mich.App. 284, 294-296, 591 N.W.2d 277 (1998) (Crego III). The issue was finally resolved by our Supreme Court, which held that the statute did not violate the equal protection clauses of the federal and state constitutions and that, therefore, nonmodifiable support agreements entered into pursuant to the statute are enforceable. Crego v. Coleman, 463 Mich. 248, 269-272, 615 N.W.2d 218 (2000) (Crego IV).

To summarize this history, during the period when the parties here negotiated and initially complied with their 1991 agreement, the statute upon which the agreement was based was considered constitutional.² Dones held otherwise in 1995, and its finding of unconstitutionality was ultimately affirmed by this Court through the 1998 conflict-panel decision in Crego III. The five-year period running from Dones, during which the statute was considered unconstitutional, was ended by the 2000 Supreme Court decision in Crego IV, which constitutes the final resolution of the equal-protection issue.

In the instant case, notwithstanding the agreement, Hall returned to the circuit court seeking a modification of the original support order. Relying on Dones, the circuit court granted that relief and entered an order increasing the monthly payments that Novik was required to pay on behalf of the child and also making other changes to the benefits that were due.³ This order (hereinafter referred to as the increased support order) further required the parties to undergo testing to determine whether Novik was the child's biological father. Following attempts by Novik to avoid that requirement,⁴ Novik was determined to be the child's biological father.

Question Presented and Standard of Review

As noted earlier, the question presented here is the effect of Crego IV on the increased support order. Shortly after Crego IV was decided, defendant filed a motion asking the circuit court to reinstate the original support order and require reimbursement of amounts paid in excess of it by Novik to Hall under the increased support order.

We are, of course, bound by Crego IV. However, Crego IV did not specify whether it should be applied retroactively; instead, it merely remanded the case to the circuit court "for further proceedings consistent with this opinion." Crego IV, supra at 282, 615 N.W.2d 218. Crego IV is thus a case in which the Court "announce[d] a change of law" while "refrain[ing] from going the next step to indicate how its new rule is to be applied." Riley v. Northland Geriatric Ctr. (After Remand), 431 Mich. 632, 643, 433 N.W.2d 787 (1988). The issue of the retroactive or prospective application of Crego IV is now left for us to decide here. Id. This is a question of law that we review de novo. Curtis v. City of Flint, 253 Mich.App. 555, 563-564, 655 N.W.2d 791 (2002).

Prospective Application of Crego IV

By completely denying Novik's motion, the circuit court ruled that Novik must continue to comply with the obligations of the increased support order in the future. In so doing, the circuit court failed to give Crego IV even prospective effect. Crego IV held that agreements such as that entered into by the parties here in 1991 are enforceable, the statute on which they were based being constitutional. Hall presents arguments against the retroactive application of Crego IV, which would amount to a decision requiring that she reimburse Novik for payments made in excess of the original support order as a result of the increased support order. She presents no argument against prospectively applying Crego IV to reinstate the original support order in the future.⁵ We hold that the circuit court erred in failing to give Crego IV even this prospective application.

We realize that Hall and the child have been accustomed to receiving support at a higher level under the increased support order. Accordingly, reverting back to the support level found in the original support order will require adjustment and represent a hardship to them. Nonetheless, Crego IV clearly held that the original agreement was premised on a constitutional statute and should have been enforced throughout. Accordingly, having freely negotiated and accepted that agreement initially, Hall cannot now rightfully claim that it is unfair to impose its limitations upon her in the future.

Further, we recognize that the situation has changed dramatically since the agreement was entered, Novik now having been determined to be the child's biological father. However, as Novik points out, he did not submit to paternity testing willingly, but was required to do so by the circuit court in contravention of the original agreement. The paternity determination would not have occurred but for precedents that incorrectly struck down the statute under which the agreement had been entered. It would be unfair now to continue imposing the obligations of the increased support order on Novik on the basis of that determination.

Retroactive Application of Crego IV

Whether Crego IV should be applied retroactively to require that Hall reimburse Novik for "excess payments" made under the increased support order presents a larger question.⁶ Resolution of the issue of retroactive or prospective application "ultimately turns on considerations of fairness and public policy" requiring a court to "`take into account the total situation confronting it and seek a just and realistic solution of the problems occasioned' " by an opinion that alters the law. Riley, supra at 644-645, 433 N.W.2d 787, quoting Placek v. Sterling Hts., 405 Mich. 638, 665, 275 N.W.2d 511 (1979). However, certain rules or principles providing guidance have evolved. Riley, supra at 645, 433 N.W.2d 787. The "first criterion that must be determined in deciding whether a judicial decision should receive full retroactive application is whether that decision is establishing a new principle of law...." MEEMIC v. Morris, 460 Mich. 180, 190, 596 N.W.2d 142 (1999).⁷ A judicial decision establishes a new principle of law if it overrules "clear past precedent on which the parties have relied...." Id.

We conclude that Crego IV presents such a "new principle of law." As the summary of precedents presented above indicates, by the time Dones was decided, and certainly by the time a conflict panel ...