Phinisee v. Rogers

• Decision Date: 08 May 1998
• Docket Number: Docket No. 190353
• Citation: 229 Mich.App. 547,582 N.W.2d 852
• Parties: Darcel PHINISEE, Plaintiff/Appellee/Cross-Appellant, v. Eugene J. ROGERS, Defendant/Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 852

582 N.W.2d 852

229 Mich.App. 547

Darcel PHINISEE, Plaintiff/Appellee/Cross-Appellant, v. Eugene J. ROGERS, Defendant/Appellant/Cross-Appellee.

Docket No. 190353.

Court of Appeals of Michigan.

Submitted May 13, 1997, at Detroit.

Decided May 8, 1998, at 9:10 a.m.

Released for Publication Aug. 19, 1998.

Loyst Fletcher, Jr., and Barry A. Wolf, Flint, for plaintiff/appellee/cross-appellant.

Marvin R. Smith, Pontiac, for defendant/appellant/cross-appellee.

Before MARKEY, P.J., and JANSEN and WHITE, JJ.

MARKEY, Presiding Judge.

Defendant Eugene J. Rogers appeals as of right and plaintiff Darcel Phinisee cross appeals as of right from the trial court's order partially granting and partially denying defendant's motion for summary disposition in this action to determine filiation and support. Plaintiff further cross appeals from the court's order requiring defendant to make support payments to plaintiff from the time plaintiff filed her complaint until she reaches 19 1/2 years of age and denying plaintiff's request for attorneys fees. We affirm in part, reverse in part, and remand.

Plaintiff was born in 1975. Her mother claimed that defendant was plaintiff's father and commenced a paternity action against him in 1976. In that case, the trial court ruled that defendant was not plaintiff's father, but no final order was ever entered in the action. In December 1993, plaintiff turned eighteen years old. In February 1994, plaintiff commenced an action in her own name to establish defendant's paternity and to seek support from him. Her complaint contained claims for breach of a common-law duty to support a minor child and breach of the Paternity Act, M.C.L. § 722.714; M.S.A. § 25.494.

In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(5) and (7), alleging that plaintiff's complaint was barred by virtue of res judicata and the express terms of the Paternity Act. The trial court issued its opinion and order granting summary disposition to defendant on plaintiff's Paternity Act claim but denying summary disposition as to plaintiff's common-law claim upon finding a lack of privity between plaintiff and her mother with respect to the 1976 paternity action.

I

First, we address defendant's claim on appeal that res judicata prevents plaintiff from bringing the present cause of action because plaintiff's mother commenced a paternity action against defendant in 1976, in which he was found not to be plaintiff's biological father. We disagree. For res judicata to apply, defendant must establish the following: (1) the former suit was decided on the merits, (2) the issues in the second action were or could have been resolved in the former action, and (3) both actions involved the same parties or their privies. Energy Reserves, Inc. v. Consumers Power Co., 221 Mich.App. 210, 215-216, 561 N.W.2d 854 (1997). Because res judicata is a question of law, we review de novo its application as well as the court's action on a motion for summary disposition.

In light of this Court's decision in Spada v. Pauley, 149 Mich.App. 196, 199, n. 1, 204-205, 385 N.W.2d 746 (1986), we find that the doctrine of res judicata is inapplicable here for several reasons. First, plaintiff was not a party or a privy to her mother's 1976 action. Other jurisdictions have come to the same conclusion, many of them relying on the following passage from Spada, supra at 204-205, 385 N.W.2d 746:

The interests of the parties to a paternity action are not necessarily identical to the illegitimate child's interests nor are they likely to be sufficiently similar to afford the child a forum to protect his rights under the Paternity Act. A mother may fail to initiate a paternity proceeding for various reasons. She may wish to avoid any contact with the father, she may wish to avoid disapproval of the community or her family, she may be able to support the child and not foresee a change in her circumstances, she may be subject to emotional strain and confusion that often attends the birth of an illegitimate child, or she may have a continuing relation with or affection for the father.... Also, the state's interest does not coincide with the illegitimate child's interest. The Department of Social Services is concerned with its own economic interest. A child's interests are much broader.6

See SOV v. Colorado, 914 P.2d 355, 362, n. 10 (Colo., 1996) (citing, for example, twelve cases from various jurisdictions where it is "well recognized" that a child's interests in a paternity action differ from those of the child's mother); Johnson v. Norman, 66 Ohio St.2d 186, 190, 421 N.E.2d 124 (1981) ("[p]rivity does not generally arise from the relationship between parent and child," so the dismissal with prejudice of the mother's paternity action in no way affected the child's common-law action for paternity and support); GEB v. SRW, 422 Mass. 158, 160-165, 661 N.E.2d 646 (1996) (settlement agreement between parents regarding paternity was not binding on the nonparty child because the mother's and child's interests are not the same and no guardian was appointed to represent the child), citing, e.g., Symonds v. Symonds, 385 Mass. 540, 545, n. 7, 432 N.E.2d 700 (1982) ("[a]ny determination that the husband is not the father of a child born to his wife during marriage is, of course, not binding on the child who is not a party to the proceeding").

In Sloan v. Madison Heights, 425 Mich. 288, 295-296, 389 N.W.2d 418 (1986), our Supreme Court defined "privity" as follows: "In its broadest sense, privity has been defined as 'mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.' " (Citation omitted). Black's Law Dictionary (6th ed.), p. 1199, defines privity as

mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.... [It] signifies that [the] relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon [the] other, although [the] other was not a party to lawsuit.

"Privity between a party and a non-party requires both a 'substantial identity of interests' and a 'working or functional relationship ... in which the interests of the non-party are presented and protected by the party in the litigation.' " SOV, supra at 360, quoting Public Service Co. v. Osmose Wood Preserving, Inc., 813 P.2d 785, 787 (Colo.App., 1991).

We agree with Spada, supra, and the cases cited above, that plaintiff and plaintiff's mother, who filed the earlier unsuccessful paternity action against defendant, are not and were not in privity with each other. Moreover, there is no evidence on the record that a final, enforceable judgment was entered in the earlier paternity action, which would also preclude the application of res judicata. SOV, supra at 357, 359. Additionally, plaintiff could not have been a party to the original paternity action because she was not eighteen years of age after August 1984 and before June 1986, as required under M.C.L. § 722.714(1); M.S.A. § 25.494(1) of the Paternity Act. Accord SOV, supra at 360-361. We also agree with those courts that have recognized that an illegitimate child's interests in establishing paternity, which may extend not only to immediate support payments but also to future social security benefits and inheritance through the biological father, differ from the mother's interests in establishing paternity, which may be focused more on immediate financial concerns. Furthermore, extremely accurate scientific testing developed since 1976 now permits courts to confidently determine paternity. We will not require the trial court to shut its eyes to conclusive medical evidence establishing paternity merely because plaintiff's mother did not have access to the same information in 1976. Accordingly, we find that res judicata does not bar plaintiff's action against defendant.

II

Additionally, defendant and plaintiff both raise issues concerning the trial court's partial grant and partial denial of defendant's motion for summary disposition. Plaintiff brought her paternity and support claims under both the common law and the Paternity Act. The trial court granted defendant's motion for summary disposition as to plaintiff's cause of action under the Paternity Act but denied it with regard to plaintiff's cause of action brought under common law. We review de novo a trial court's ruling regarding a motion for summary disposition. Borman v. State Farm Fire & Casualty Co., 198 Mich.App. 675, 678, 499 N.W.2d 419 (1993), aff'd. 446 Mich. 482, 521 N.W.2d 266 (1994); see also Patterson v. Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994).

The Paternity Act, M.C.L. § 722.714; M.S.A. § 25.494, provided, in relevant part, at the time plaintiff commenced this action:

(1) An action under this act shall be brought by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the department of social services as provided in this act....

* * * * * *

(3) An action under this act may be instituted during the pregnancy of the child's mother, at any time before the child reaches 18 years of age, or for a child who became 18 years of age after August 15, 1984 and before June 2, 1986, before March 1, 1993.... ¹

Plaintiff turned eighteen on December 9, 1993. She filed her complaint in this action on February 8, 1994. Clearly, she did not fall within the provisions established under the act. Therefore, the trial court did not err in granting defendant's motion for summary disposition as to plaintiff's cause of action under the Paternity Act. ²

Paternity actions are generally covered by statute; however, because the Paternity Act does not afford an illegitimate child the same rights as a legitimate child to bring...