Johnson v. Johnson, 78-3869

• Decision Date: 05 November 1979
• Docket Number: No. 78-3869,78-3869
• Citation: 286 N.W.2d 886,93 Mich.App. 415
• Parties: Robert C. JOHNSON, Plaintiff-Appellee, v. Karen J. JOHNSON, Defendant-Appellant. 93 Mich.App. 415, 286 N.W.2d 886
• Court: Court of Appeal of Michigan — District of US

Page 886

286 N.W.2d 886

Robert C. JOHNSON, Plaintiff-Appellee, v. Karen J. JOHNSON, Defendant-Appellant.

No. 78-3869.

93 Mich.App. 415, 286 N.W.2d 886

Court of Appeals of Michigan.

Nov. 5, 1979.

Released for Publication Jan. 29, 1980.

[93 MICHAPP 416] Bruce H. Krueger, Muskegon, for defendant-appellant.

Denis V. Potuznik, Muskegon, for plaintiff-appellee.

Before WALSH, P. J., and KELLY and OPPLIGER, ^* JJ.

OPPLIGER, Judge.

Defendant appeals that portion of the divorce judgment entered in the trial court holding that the plaintiff was not the father of her child and had no duty to support the child. [93 MICHAPP 417] She alleges on appeal that the trial court's finding of nonpaternity was clearly erroneous.

In his verified complaint, plaintiff alleged that the child, born on June 28, 1968, was a child of the parties to the divorce action. At trial, plaintiff's counsel orally amended the complaint to aver that plaintiff was not the father of the child born during the marriage.

The trial was brief, consisting only of testimony of the defendant. Both on direct and cross-examination, she stated that she had assumed plaintiff was not the father of her child because she had been informed by her doctor approximately two months after she met plaintiff that she was "about three months pregnant". However, she also testified that she did not know that she was pregnant before she met the plaintiff in the fall of 1967. She learned of her pregnancy in late November, 1967. The parties were married on March 8, 1968. The child was born on June 29, 1968.

The child received the surname Johnson and plaintiff was listed on the birth certificate as the father. Plaintiff supported and cared for the child as his own until this action commenced in November, 1977.

Based on defendant's testimony of her uncertainty as to her child's father, the trial court held that plaintiff was not the father of the child and further held that plaintiff had no duty of support.

The Supreme Court declared in Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977), that parties to a divorce action have a right to testify to nonaccess to affect the legitimacy of a child born in wedlock. It is nevertheless the clear holding of Serafin that there is still the "viable and strong, though rebuttable, presumption of legitimacy". Id., 636, 258 N.W.2d 463. That presumption may be overcome only by [93 MICHAPP 418] "clear and convincing evidence". Shepherd v. Shepherd, 81 Mich.App. 465, 469, 265 N.W.2d 374 (1978).

Defendant argues that the trial court erred in finding that the presumption of legitimacy was overcome by clear and convincing evidence. We are compelled to agree that the trial court misapplied this standard.

The divorce trial was brief, with the substance of defendant's testimony as recounted above. Following that testimony, the trial court observed:

"Well, I think the principal issue has been resolved here. I can't, in the face of the evidence presented here, reach the conclusion that he is the father of the child * * *."

Later, after reciting the clear and convincing evidence standard of Serafin, the trial court stated:

"There is no claim, apparently, no claim, no efficacious claim presented to this Court by the Defendant that the Plaintiff is in fact the father of the child."

Thus, the trial judge has so clearly reversed the presumption of legitimacy in this case that we cannot uphold his finding of nonpaternity. The trial judge stated that defendant made no claim that plaintiff was the father of this child. However, the very fact the child was born during wedlock presents a very strong claim of legitimacy. Once testimony of birth within wedlock is received, the court need not struggle to "reach the conclusion" of paternity. A prima facie case of paternity has been established which may be rebutted Only by clear and convincing evidence. By unrebutted testimony the child was born during wedlock, eight months after plaintiff and defendant met, within [93 MICHAPP 419] the outer limits of the period of gestation which has been said to be between 240 and 300 days. People v. Case, 171 Mich. 282, 137 N.W. 55 (1912).

Defendant's claim that the child was born during wedlock, standing alone, creates a presumption of legitimacy which is one of the strongest presumptions known in the law. Shepherd, supra. In this case, it was rebutted only by defendant's testimony that she was unsure whether plaintiff could be the father of her child. We believe that the trial court's finding of nonpaternity is erroneous in that it is not supported by clear and convincing evidence of illegitimacy required by Serafi...