Rose v. Stokely

Decision Date29 October 2003
Docket NumberDocket No. 241029.
PartiesBillie Michelle ROSE, Plaintiff, and County of Calhoun, Appellant, v. Robert John STOKELY, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

John Hallacy, Prosecuting Attorney, and Niels M. Magnusson III, Assistant Prosecuting Attorney, Battle Creek, for Billie M. Rose.

Robison Law Office, P.C. (by Mark J. Robison and Charles A. Robison), Albion, for Robert J. Stokely.

Karen S. Sendelbach, Judith Curtis, Kent Weichmann, and Charlotte Allen, Ann Arbor, for amici curiae the Family Law Section of the State Bar of Michigan.

Stuart Law Offices (by Mark F. Stuart) and Scott Sussman, Marshall; Madison, Wisconsin, for amici curiae the Center on Fathers, Families, and Public Policy.



This case involves an equal protection challenge, on gender-based grounds, to the constitutionality of certain provisions of the Paternity Act1 that allocate the "confinement expenses" of a child born out of wedlock entirely to the father of that child. The circuit court did not directly address the constitutional challenge, relying primarily on the decision of this Court in Thompson v. Merritt.2 The prosecutor filed for leave to appeal, which this Court initially denied.3 The prosecutor then sought leave to appeal to the Michigan Supreme Court, which, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted, stating:

The Court of Appeals is directed to determine the proper level of scrutiny to be applied to plaintiff's [sic, defendant's] equal protection claim, and whether MCL 722.712(1) violates that standard. Crego v. Coleman, 463 Mich. 248, 615 N.W.2d 218 (2000); Geduldig v. Aiello, 417 U.S. 484, [94 S.Ct. 2485, 41 L.Ed.2d 256] (1974).4

On remand, this Court stated that, but for Thompson v. Merritt, it would find the challenged provisions to be unconstitutional.5 This finding set in motion the conflict provisions of MCR 7.215(I)(2), now MCR 7.215(J)(2), and this conflict panel was convened by order of the Court. 253 Mich.App. 236, 655 N.W.2d 770 (2002). We reverse and remand.

I. Summary Of The Issue

The Stokely II opinion concisely sets out the constitutional issue in this case: Do the Paternity Act's confinement expense allocation provisions constitute impermissible gender-based discrimination, in violation of the Equal Protection Clause of both the Michigan and the federal constitutions?6

II. Basic Facts And Procedural History
A. The Statutory Provisions

The challenged provisions of the Paternity Act are contained in subsection 2(1),7 dealing with the liabilities of the parents of a child born out of wedlock,8 and subsection 7(2),9 dealing with orders of filiation.10 Subsection 2(1) provides:

The parents of a child born out of wedlock are liable for the necessary support and education of the child. They are also liable for the child's funeral expenses. The father is liable to pay the expenses of the mother's confinement, and is also liable to pay expenses in connection with her pregnancy as the court in its discretion may deem proper. The court shall admit in proceedings under this act a bill for funeral expenses, expenses of the mother's confinement, or expenses in connection with the mother's pregnancy, which bill constitutes prima facie evidence of the amount of those expenses, without third party foundation testimony.11
Subsection 7(2) provides, in pertinent part:

An order of filiation entered under subsection (1) shall specify the sum to be paid weekly or otherwise, as prescribed in section 5 of the support and parenting time enforcement act, until the child reaches the age of 18. Subject to section 5b of the support and parenting time enforcement act, the court may also order support for a child after he or she reaches 18 years of age. In addition to providing for the support of the child, the order shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement, for the funeral expenses if the child has died, for the support of the child before the entry of the order of filiation, and for the expenses in connection with the pregnancy of the mother or of the proceedings as the court considers proper.12

B. The Circuit Court Paternity Action

In this case, on June 12, 1996, plaintiff Billie Rose gave birth to a daughter who, under the provisions of the Paternity Act, was a "child born out of wedlock." According to the Calhoun County prosecutor, Rose received Medicaid and the state of Michigan, through the Michigan Family Independence Agency (FIA), paid the necessary birth expenses, in the total amount of $2,908.41. Accordingly, on May 4, 2000, the prosecutor filed a paternity complaint against defendant Robert Stokely, alleging that Rose received public assistance through the FIA, that the FIA had paid the expenses relating to the minor child's birth, that Stokely was not supporting the minor child, and that he was able-bodied and capable of providing support.

The circuit court entered an order of filiation and an order resolving child support and parenting time issues. However, when the prosecutor requested entry of an order requiring Stokely to repay the FIA for all of Rose's confinement expenses, Stokely objected. He argued that the confinement expenses should be apportioned between the mother and father of a child born out of wedlock, according to each parent's ability to pay because, if interpreted to impose liability for confinement expenses on the father alone, the Paternity Act would violate the Equal Protection Clause of both the Michigan and the federal constitutions. The prosecutor responded by arguing that the Paternity Act imposed the sole liability for confinement expenses on the father of a child born out of wedlock and that this provision did not violate constitutional protections.

In a written opinion dated November 30, 2000, the circuit court noted that this Court had previously decided in Thompson v. Merritt that the statutory language allows for the apportionment of confinement costs. The circuit court opined that this interpretation was not only proper, it was also necessary to maintain the constitutionality of the statute:

An interpretation that the father must always be required to pay all of the costs of confinement in an Order of Filiation would constitute a gender-based classification. A gender-based classification is subject to so-called "intermediate scrutiny": to survive an equal protection challenge, the classification must serve an important governmental objective and must be substantially related to achievement of that objective. In the Matter of RFF, Minor. LAF, Appellant, v. BJF, Appellee, 242 Mich.App. 188, 209-210, 617 N.W.2d 745 (2000),

Lehr v. Robertson, 463 U.S. at 266, 103 S.Ct. 2985, [77 L.Ed.2d 614 (1983)]. "Gender-based classifications will be upheld when men and women are not similarly situated in the area covered by the legislation in question and the statutory classification is realistically based upon differences in their situations." Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979), cited in RFF, supra.

While it is true that unwed mothers and fathers are not always similarly situated with respect to their abilities to pay expenses associated with the birth of their children, that society has [and perhaps still does] imposed some measure of discrimination based on gender which has separated men from women with respect to their ability to pay expenses associated with children, there is simply no basis upon which to find that, as a rigid rule, differences in their situations are always based on their gender and are always such that the mother has no ability to pay any of the costs of her confinement and that the father should pay 100% of those costs in every case in which an Order of Filiation is entered.

Indeed, such a conclusion is contrary to the language of the rest of the statutes in question. MCL 722.712 opens with the proposition that both parents are liable for the support and education of their children, and for the childrens' [sic] funeral expenses. And in the last portion of the pertinent statutes, the Legislature clearly recognized the discretion of the court to apportion costs of pregnancy between the mother and father. It is not conceivable, given this recognition, that the Legislature would have intended to impose a rigid requirement that, without exception, the father would always and in all circumstances bear the full weight of the entire confinement expense.

The circuit court therefore ordered that Rose's confinement expenses be apportioned between her and Stokely, according to their respective abilities to pay. After an investigation, the friend of the court recommended that Rose assume forty-one percent and that Stokely assume fifty-nine percent of the liability for the confinement expenses. This allocation was based on a determination of each party's income and an application of the Michigan Child Support Formula Manual. The circuit court's order subsequently adopted that recommendation.

C. Stokely II
1. Section II

After the Supreme Court remand, this Court considered two aspects of the circuit court's decision.13 In section II of its opinion, the Stokely II panel concluded that §§ 2 and 7 of the Paternity Act did not grant a circuit court the discretion to apportion the confinement expenses of a mother of a child born out of wedlock between the mother and the father of that child.14 The Stokely II panel noted that the circuit court had concluded that the phrase "as the court in its discretion may deem proper" in subsection 2(1) applied to the phrase the "expenses in connection with her pregnancy" and to the phrase "the...

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