Hisaw v. Hayes

• Decision Date: 07 June 1984
• Docket Number: Docket No. 61438
• Citation: 133 Mich.App. 639,350 N.W.2d 302
• Parties: Patricia Ann HISAW, Plaintiff-Appellee, v. Bruce A. HAYES, Defendant-Appellant. 133 Mich.App. 639, 350 N.W.2d 302
• Court: Court of Appeal of Michigan — District of US

Page 302

350 N.W.2d 302

Patricia Ann HISAW, Plaintiff-Appellee, v. Bruce A. HAYES, Defendant-Appellant.

Docket No. 61438.

133 Mich.App. 639, 350 N.W.2d 302

Court of Appeals of Michigan.

Submitted July 21, 1983.

Decided April 16, 1984.

Released for Publication June 7, 1984.

[133 MICHAPP 641] Philip J. Olson, II, Flint, for plaintiff-appellee.

[133 MICHAPP 642] Harry S. Sherwin, Flint, for defendant-appellant.

Before BEASLEY, P.J., and ALLEN and DENEWETH ^*, JJ.

DENEWETH, Judge.

In this paternity action, defendant appeals by leave granted from the denial of a rehearing of an order altering his support obligation. Originally, a settlement approved by the circuit court pursuant to M.C.L. Sec. 722.713; M.S.A. Sec. 25.493 required defendant to pay $1,500 at the rate of $5 per week plus certain statutory fees. The circuit court altered defendant's support obligation to require him to pay $45 per week until the child reached the age of majority.

M.C.L. Sec. 722.713; M.S.A. Sec. 25.493 provides that a paternity settlement is not binding unless approved by the court, but that such a settlement bars other remedies of the mother and child once approved and performed. Settlements are contracts and are governed by the legal principles applicable to contracts. Mastaw v. Naiukow, 105 Mich.App.25, 28, 306 N.W.2d 378 (1981). Here, the circuit court held that defendant had failed to perform the settlement and that the settlement was therefore not binding. At the time of the circuit court's decision, defendant had paid only $1,409 of the $1,420 then due. Moreover, defendant could not show that every payment had been made on time, some payments having been made a few days late. Rescission of a contract is permissible only for a substantial or material breach. O'Conner v. Bamm, 335 Mich. 438, 56 N.W.2d 250 (1953); Walker & Co. v. Harrison, 347 Mich. 630, 81 N.W.2d 352 (1957). In this case in view of the amounts of child support and the time periods involved, it cannot be said [133 MICHAPP 643] that an arrearage of $11 or the few untimely payments at issue constitute a substantial or material breach.

Neither can the circuit court's actions be justified under other theories. In Van Laar v. Rozema, 94 Mich.App. 619, 288 N.W.2d 667 (1980), the Court approved the modification of a support obligation arising out of a settlement. However, in that case, the settlement agreement contained language permitting modification; therefore, the parties themselves conferred upon the circuit court the power to modify the support obligation. No such language was contained in the settlement agreement here.

The enforceability of a contract depends on consideration. Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 600, 292 N.W.2d 880 (1980). A party rescinding a contract must ordinarily restore the other party to substantially the position the other party occupied before the contract. Mesh v. Citrin, 299 Mich. 527, 538, 300 N.W.2d 870 (1941); Blumrosen v. Silver Flame Industries, Inc., 334 Mich. 441, 445-446, 54 N.W.2d 712 (1952); Grabendike v. Adix, 335 Mich. 128, 140-142, 55 N.W.2d 761 (1952). Here, defendant's answer to plaintiff's complaint denied paternity. Defendant had a right to a judicial determination of the paternity issue pursuant to M.C.L. Sec. 722.714; M.S.A. Sec. 25.494. Defendant agreed to surrender that right in return for the surrender of any claim by plaintiff and her child for support in excess of the agreed-upon amount. The circuit court could not deprive defendant of the consideration for the settlement, while leaving defendant bound by the settlement.

In Boyles v. Brown, 69 Mich.App. 480, 245 N.W.2d 100 (1976), the Court concluded that a circuit court [133 MICHAPP 644] had the power to modify the level of child support established by settlement in a paternity case. The Court relied in part on M.C.L. Sec. 722.720a; M.S.A. Sec. 25.500(1), a section which has been repealed. See 1982 P.A. 296. That statute did not expressly permit courts to modify paternity settlements, but it required the friend of the court to regularly review all paternity cases in which orders of filiation were entered and to recommend modification of support orders where the interests of the children or the public so required. The Court also noted that support orders for legitimate children may be modified even when based on a settlement and expressed concern that a different rule for illegitimate children would amount to denial of equal protection of the law.

In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the Court held that a statutory scheme which required natural fathers to support their legitimate children but not their illegitimate children amounted to a denial of equal protection. However, equal protection does not require that things different in fact be treated as though they were the same. Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed.1124 (1940). The difference between a paternity case and a case involving support for legitimate children is the necessity of proving paternity in the former case. Due process requires that a litigant be afforded a fair trial of the issues involved in the controversy and a determination of disputed questions of fact on the basis of evidence. Dation v. Ford Motor Co., 314 Mich. 152, 167, 22 N.W.2d 252 (1946). The right of an illegitimate child to...