McFetridge v. Chiado

• Decision Date: 01 September 1982
• Docket Number: Docket No. 55581
• Parties: Janet Louise McFETRIDGE, Plaintiff-Appellee, v. Michael CHIADO, Defendant-Appellant. 116 Mich.App. 528, 323 N.W.2d 470
• Court: Court of Appeal of Michigan — District of US

Page 470

323 N.W.2d 470

Janet Louise McFETRIDGE, Plaintiff-Appellee, v. Michael CHIADO, Defendant-Appellant.

Docket No. 55581.

116 Mich.App. 528, 323 N.W.2d 470

Court of Appeals of Michigan.

Submitted Dec. 16, 1981.

Decided May 21, 1982.

Released for Publication Sept. 1, 1982.

[116 MICHAPP 530] Merrill, Tatham & Rosati, P. C., Southfield, for plaintiff-appellee.

Archer, Kenney & Wilson, Dearborn (Zemke & Hirschhorn, P. C., Southfield, of counsel), for defendant-appellant.

Before KAUFMAN, P. J., and BASHARA and COOPER ^*, JJ.

PER CURIAM.

Plaintiff commenced the present paternity action over ten years after the birth of her child. Defendant moved for accelerated judgment based upon the six-year limitation period contained within the paternity statute. M.C.L. Sec. 722.714(b); M.S.A. Sec. 25.494(b). Plaintiff countered by arguing that the limitation period violates the equal protection clauses of the United States Constitution, U.S.Const.Am. XIV, and the Michigan Constitution, Const. 1963, art. 1, Sec. 2. The trial court agreed that the statute precluded plaintiff's paternity claim but ruled nonetheless that a declaratory judgment action could be maintained on the child's behalf. Defendant appeals by leave granted.

Initially, we hold that the trial court erred in ruling that the child could maintain a separate declaratory action to determine her paternity. In Michigan, paternity proceedings are of a purely statutory nature. Pangborn v. Smith, 65 Mich. 1, 4, 31 N.W. 599 (1887). The pertinent statute provides that paternity litigation may be commenced by a child's mother, the putative father, or the Department of Social Services. In addition, a trial court may appoint a guardian ad litem to represent the child's interests. M.C.L. Sec. 722.714; M.S.A. Sec. 25.494. In any [116 MICHAPP 531] event, the action is governed by the statutory six-year limitation. Absent legislative action, a child may not maintain a paternity action separate from that allowed under the paternity statute and subject to the limitation period. Cf. JMS v. Benson, 98 Wis.2d 406, 297 N.W.2d 18 (1980).

Secondly, although the dissenting opinion has put forth a well-reasoned analysis of this issue, we do not believe the limitation period of M.C.L. Sec. 722.714(b); M.S.A. Sec. 25.494(b) operates to violate the equal protection clauses of the United States Constitution, U.S.Const.Am. XIV, and the Michigan Constitution, Const. 1963, art. 1, Sec. 2. To the extent the limitation period causes disparate treatment between legitimate and illegitimate children, it is substantially related to permissible governmental interests. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Daniel v. Collier, 113 Mich.App. 74, 317 N.W.2d 293 (1982). The governmental interest in this case is in discouraging the litigation of stale or fraudulent paternity claims. The limitation period here, which is six years, does not produce an impenetrable barrier effectively shielding otherwise invidious discrimination. Because actions may be commenced by a child's mother, father or the Department of Social Services, the fact that the provision requires initiation of suit during the child's minority does not work an unfairness of constitutional magnitude. Daniel v. Collier, supra.

Reversed and remanded for entry of accelerated judgment in favor of defendant.

COOPER, Judge, dissenting.

The court has a responsibility to take into consideration social and technological changes which may occur since a statute was originally promulgated where those changes affect the original purpose of the statute. [116 MICHAPP 532] In the present case I agree with the majority to the extent that the six-year statute of limitations in paternity matters had a valid legislative purpose to avoid stale claims when promulgated. However, due to the advances in technology through the development of blood tests which can show the probability of parentage to a degree of over 95% certainty, the possibility of prejudice because of a stale claim wanes substantially and becomes insignificant when compared to the need for providing support to illegitimate children who are presently not receiving the same equal protective right to support as that enjoyed by legitimate children.

A legitimate child has the right to support until he becomes eighteen. An action to enforce this right can be started at any time until the child reaches its eighteenth birthday. Although an illegitimate child presumptively has the same right to support until it reaches its eighteenth birthday, the practical effect of the Paternity Act limitation is to restrict the right to a six-year period. If, in other words, an action is not taken on behalf of the illegitimate child to perfect the right to support within six years of birth, the right to support is lost. Plaintiff validly argues that this disparate treatment between illegitimate and legitimate children clearly violates an illegitimate child's federal and state constitutional right to equal protection of the law.

The case of O'Brien v. Hazelet & Erdal, 410 Mich. 1, 13, 299 N.W.2d 336 (1980), summarizes the scope of judicial review of equal protection challenges to social economic legislation as follows:

" ' "Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest." ' "

[116 MICHAPP 533] The defendant is correct when he states that statutes of limitations should be construed to advance the policies they are designed to promote. The defense provides a respectable list of cases and purposes of such statutes of limitations to the effect that they are intended to prevent stale and fraudulent claims, to require expeditious filing by a complainant and to allow the presentation of witnesses whose memories have not faded or to locate witnesses who may have knowledge of a mother's intimacy with someone other than the purported father who could have sired the child in question. For the above reasons, various states have upheld statutes of limitations pertaining to the initiation of paternity actions. In re People in the Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972); Thompson v. Thompson, 285 Md. 488, 404 A.2d 269 (Maryland Court of Appeals, 1979); State ex rel. Krupke v. Witkowski, 256 N.W.2d 216 (Iowa, 1977); Texas Department of Human Resources v. Chapman, 570 S.W.2d 46 (Tex.Civ.App., 1978).

However, the overriding purpose of Michigan's Paternity Act is to see that minor illegitimate children are supported and cared for. This conclusion is clearly enunciated by our Michigan Supreme Court as follows:

"Patently, these provisions seek to express society's concern with the support and education of the 'child born out of wedlock.' In terms of need for support and education, we see no difference between children born in or out of wedlock." Whybra v. Gustafson, 365 Mich. 396, 400, 112 N.W.2d 503 (1961).

This enunciation was reaffirmed and reiterated by our Michigan Court of Appeals as follows:

"The purpose of the Paternity Act is to provide for [116 MICHAPP 534] the support of an illegitimate child. The announced public policy of this state is to treat children born out of wedlock as no less deserving of support than those born in wedlock." Smith v. Robbins, 91 Mich.App. 284, 289, 283 N.W.2d 725 (1979), citing Boyles v. Brown, 69 Mich.App. 480, 245 N.W.2d 100 (1976).

As stated in Robbins, 91 Mich.App. 288, 283 N.W.2d 725:

"An individual is entitled to equal protection under the law. US Const, Am XIV; Const 1963, art 1, Sec. 2. A legislative classification may not be arbitrary. There must be a rational relation between the classification and the purpose of the act in which it is found. United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821 [2825], 37 L.Ed.2d 782 (1973); Fox v. Employment Security Comm, 379 Mich. 579, 588, 153 N.W.2d 644 (1967)."

Various states have found that there was not a substantial relationship between the setting of a statute of limitations and the state's asserted interest of providing support for illegitimate children. In State Department of Health v. West, 378 So.2d 1220, 1227 (Fla., 1979), the Supreme Court stated:

"The arbitrary determination that paternity can only be proved in four years creates an impenetrable barrier to an illegitimate child's right to seek support without considering alternatives which deal directly with the problem of proof. Although proof of paternity may become more difficult with the passage of time, this mere possibility cannot be allowed to work an unconstitutional discrimination against illegitimate children."

Further, the Florida Court observed that the right to support is a continuing one which never becomes dormant. Id.

"This duty of future support cannot be barred for [116 MICHAPP 535] illegitimate children if it is allowed for legitimate children." Id., 1228.

The above conclusion was also reached in Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978), to the effect that if there is no limitation on the right of a legitimate child to seek support then there can be no such limitation on the same right for an illegitimate child. Id., 100, 583 P.2d 462. The North Carolina Court of Appeals also applied a substantial relationship standard of review and held that their statute was not substantially related to any permissible state interest but that it discriminated against illegitimate children in violation of the equal protection clause. The North Carolina statute provided a three-year limitation. The North Carolina Court of Appeals reasoned that, because a child is entitled to paternal support throughout its minority, it cannot be said that a claim for such support brought at any time during the child's minority is stale. Further, the court observed that the mere passage of time would not bear a direct relationship to the truth of the claim asserted;...