Lynch v. Lynch, Docket Nos. 61780

• Decision Date: 15 September 1983
• Docket Number: Docket Nos. 61780,62928
• Citation: 127 Mich.App. 34,338 N.W.2d 413
• Parties: Michael O. LYNCH, Plaintiff-Appellant, v. Sharon Sue LYNCH (Steinman), Defendant-Appellee. 127 Mich.App. 34, 338 N.W.2d 413
• Court: Court of Appeal of Michigan — District of US

Page 413

338 N.W.2d 413

Michael O. LYNCH, Plaintiff-Appellant, v. Sharon Sue LYNCH (Steinman), Defendant-Appellee.

Docket Nos. 61780, 62928.

127 Mich.App. 34, 338 N.W.2d 413

Court of Appeals of Michigan.

Submitted March 23, 1983.

Decided July 7, 1983.

Released for Publication Sept. 15, 1983.

[127 MICHAPP 34] Thomas A. Nordstrom, Monroe, for plaintiff-appellant.

Kirk D. McMullen, Sp. Prosecutor for Domestic Affairs, Monroe, for defendant-appellee.

[127 MICHAPP 35] Before MAHER, P.J., and MacKENZIE and BREIGHNER ^*, JJ.

PER CURIAM.

Plaintiff filed a complaint for divorce on January 9, 1979, and a judgment of divorce was entered on August 31, 1979. Defendant subsequently sought amendment of the judgment of divorce to require plaintiff to pay support for a child born to her on June 3, 1980. Defendant claimed that the child was conceived before the judgment of divorce was entered and that plaintiff was the father. After a nonjury trial, the circuit court granted defendant the relief she sought, and plaintiff appeals by right.

Plaintiff argues that defendant's claims should have been resolved under the Paternity Act, M.C.L. Sec. 722.711 et seq.; M.S.A. Sec. 25.491 et seq., and that he was therefore entitled to a trial by jury, M.C.L. Sec. 722.715; M.S.A. Sec. 25.495. However, divorce actions are tried under the procedures formerly utilized for suits in courts of equity. M.C.L. Sec. 552.12; M.S.A. Sec. 25.92. There is no right to a trial by jury in a suit in equity. Detroit Trust Co. v. Struggles, 283 Mich. 471, 477, 278 N.W. 385 (1938).

In a divorce action, the court has the power to determine whether the husband is the father of the wife's child. M.C.L. Sec. 552.16; M.S.A. Sec. 25.96; Gallison v. Gallison, 5 Mich.App. 460, 466-468, 146 N.W.2d 812 (1966); Pruitt v. Pruitt, 90 Mich.App. 230, 233, fn. 1, 282 N.W.2d 785 (1979); Smith v. Robbins, 91 Mich.App. 284, 292, 283 N.W.2d 725 (1979); Gonzales v. Gonzales, 117 Mich.App. 110, 114, 323 N.W.2d 614 (1982). After a judgment of divorce is entered, the trial court retains jurisdiction to alter its judgment concerning the care, custody, and maintenance of children as changed circumstances may [127 MICHAPP 36] require. M.C.L. Sec. 552.17; M.S.A. Sec. 25.97. On the other hand, the Paternity Act applies only to a child born to a woman who was not married from the conception to the date of birth of the child or a child who was born during a marriage but was not the issue of the marriage. M.C.L. Sec. 722.711, subds. (a), (b); M.S.A. Sec. 25.491, subds. (a), (b). Here the trial court found that the child was conceived during the marriage and that the child was the issue of the marriage.

Plaintiff relies on Havens v. Havens-Anthony, 335 Mich. 445, 56 N.W.2d 346 (1953). In that case, the Court held that, while M.C.L. Sec. 552.17; M.S.A. Sec. 25.97 would allow the judgment of divorce to be amended to make provision for the care, custody, and maintenance of a child of the marriage not mentioned in the divorce decree, the statute did not authorize a reopening of a divorce case for a determination of paternity. 335 Mich. 452. However, the Court also pointed out that the question of paternity could not have been placed before the trial court on a motion for a rehearing of the judgment of divorce because such a motion would have been untimely and because, at least with regard to the mother, the existence of a child born before the judgment was entered could not be regarded as newly-discovered evidence. 335 Mich. at 449-450, 56 N.W.2d 346.

Here, the evidence before the trial court showed that defendant was unaware of her pregnancy at the time the judgment of divorce was entered. The doctor who cared for defendant during the pregnancy testified that it had been difficult to determine when conception occurred because defendant had irregular menstrual periods, but that an ultrasound test performed on November 3, 1979, when the doctor first examined defendant, had suggested ...