Rose v. Stokely, Docket No. 241029.

• Decision Date: 29 October 2002
• Docket Number: Docket No. 241029.
• Citation: 655 N.W.2d 770,253 Mich. App. 236
• Parties: Billie Michelle ROSE, Plaintiff, and County of Calhoun, Appellant, v. Robert John STOKELY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

655 N.W.2d 770

253 Mich. App. 236

Billie Michelle ROSE, Plaintiff, and County of Calhoun, Appellant, v. Robert John STOKELY, Defendant-Appellee.

Docket No. 241029.

Court of Appeals of Michigan.

Submitted August 6, 2002, at Lansing.

Decided October 1, 2002, at 9:00 a.m.

Vacated in Part October 29, 2002.

Released for Publication December 26, 2002.

John Hallacy, Prosecuting Attorney, and Niels 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.

Before: KIRSTEN FRANK KELLY, P.J., and SAAD and SMOLENSKI, JJ.

ORDER ENTERED OCTOBER 29, 2002

Rose v. Stokely, Docket No. 241029. The Court orders that a special panel shall be convened pursuant to MCR 7.215(1) to resolve the conflict between this case and Thompson v. Merritt, 192 Mich.App. 412, 481 N.W.2d 735 (1991).

The Court further orders under MCR 7.215(I)(5) that the portion of the opinion concerning the conflict addressed in section III of the opinion released October 1, 2002, is vacated.

The appellant may file a supplemental brief within 21 days of the Clerk's certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.

SMOLENSKI, J.

This case requires us to decide whether the Paternity Act, M.C.L. § 722.711 et seq., grants a circuit court discretion to apportion confinement expenses between both the mother and the father of a child born out of wedlock. Further, we must consider whether the confinement expense allocation provision of that act violates equal protection guarantees.

First, we conclude that M.C.L. § 722.712(1) and M.C.L. § 722.717(2) do not grant a circuit court discretion to apportion confinement expenses between the mother and father of a child born out of wedlock. Second, were we not compelled to follow the rule of law established in Thompson v. Merritt, 192 Mich.App. 412, 481 N.W.2d 735 (1991), we would hold that the statutory language creates a classification based on gender. Such a conclusion would require us to apply an intermediate level of constitutional scrutiny, under which we would conclude that the statute violates defendant's equal protection rights. However, Thompson requires us to hold that the statute does not create a classification based on gender and does not violate equal protection guarantees. MCR 7.215(I).¹

Accordingly, we reverse the circuit court's order apportioning confinement expenses between plaintiff and defendant. We remand for entry of an order directing defendant father to pay the confinement expenses incurred by plaintiff mother, in the amount of $2,908.41.²

I. Factual and Procedural Background

On June 12, 1996, plaintiff gave birth to a daughter. On May 4, 2000, the Calhoun County prosecutor filed a paternity complaint against defendant, on plaintiff's behalf. The complaint alleged that plaintiff received public assistance through the Michigan Family Independence Agency (FIA) and that the FIA had paid the expenses related to the minor child's birth. In addition, the complaint alleged that defendant was failing to provide support for the minor child and that he was an ablebodied individual capable of providing support.³

The circuit court entered an order of filiation, as well as an order resolving child support and parenting time issues.⁴ However, when the prosecutor requested entry of an order requiring defendant to repay the FIA for all plaintiff's confinement expenses, defendant objected. Defendant argued that confinement expenses should be apportioned between the mother and father of a child born out of wedlock, according to their respective abilities to pay. Defendant also argued that the Paternity Act, if interpreted to impose liability for confinement expenses on the father alone, would violate the Equal Protection Clauses of the Michigan and federal constitutions. The prosecutor responded by arguing that the Paternity Act did impose sole liability for confinement expenses on the father of a child born out of wedlock and that the statute's gender-based classification did not violate constitutional protections.

In a written opinion, the circuit court determined that two sections of the Paternity Act, M.C.L. § 722.712(1) and M.C.L. § 722.717(2), granted it discretion to apportion confinement expenses between both the mother and the father of a child born out of wedlock. The circuit court also determined that the statutes would violate equal protection guarantees if construed otherwise. The circuit court therefore ordered that confinement expenses be apportioned between plaintiff and defendant, according to their respective abilities to pay. After an investigation, the friend of the court recommended that plaintiff assume liability for forty-one percent of the confinement expenses and that defendant assume liability for fifty-nine percent of the confinement expenses.⁵ The circuit court subsequently entered an order adopting that recommendation.

We initially denied the prosecutor's application for leave to appeal.⁶ The prosecutor then sought leave to appeal to our Supreme Court, which, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted.⁷ We now reverse the circuit court's order and remand for entry of an order consistent with this opinion.

II. Statutory Construction

First, we must determine whether M.C.L. § 722.712(1) and M.C.L. § 722.717(2) grant a circuit court discretion to apportion confinement expenses between both the mother and the father of a child born out of wedlock. We conclude that they do not. M.C.L. § 722.712(1) provides, in pertinent part:

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. [Emphasis added.]

Further, M.C.L. § 722.717(2) provides, in pertinent part:

An order of filiation entered under subsection (1) shall specify the sum to be paid weekly or otherwise ... until the child reaches the age of 18.... 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. [Emphasis added.]

Thus, subsection 2(1) allocates liability for certain categories of expenses, while subsection 7(2) provides a method by which subsection 2(1) may be enforced, i.e., entry of an order of filiation.

A. Textual Analysis

The circuit court concluded that the language of subsections 2(1) and 7(2) granted it discretion to apportion confinement expenses between both the mother and the father of a child born out of wedlock. That conclusion was based on a reading of the statutory language that applied the court's discretionary authority to both pregnancy-related expenses and confinement expenses. With regard to subsection 2(1), the circuit court concluded that the phrase "as the court in its discretion may deem proper" applied both to the phrase the "expenses in connection with her pregnancy" and to the phrase "the expenses of the mother's confinement." With regard to subsection 7(2), the circuit court concluded that the phrase "as the court considers proper" applied both to the phrase "the expenses in connection with the pregnancy of the mother" and to the phrase "the necessary expenses incurred by or for the mother in connection with her confinement." We conclude that the circuit court's construction of the statute is erroneous.

This Court explained the rules of statutory construction in the case of In re RFF, 242 Mich.App. 188, 198, 617 N.W.2d 745 (2000):

Statutory interpretation is a question of law that this Court reviews de novo. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The starting point for determining the Legislature's intent is the specific language of the statute. The Legislature is presumed to have intended the meaning it plainly expressed, and when the statutory language is clear and unambiguous, judicial construction is neither required nor permitted. Where the language employed by the Legislature is susceptible to more than one interpretation, judicial construction is justified. When construing a statute, the court must use common sense and should construe the statute to avoid unreasonable consequences. [Citations omitted.]

We cannot agree with the trial court's reading of the statutory language. We conclude that the plain language of subsection 2(1) allocates liability for expenses related to the birth of a child born out of wedlock, as follows: (1) both parents are liable for the child's necessary support and education, (2) both parents are liable for the child's funeral expenses, (3) the father is liable for the expenses of the mother's confinement,⁸ and (4) the father is liable for pregnancy related expenses, as the trial court in its discretion deems proper. The statutory language regarding the circuit court's discretion relates to only those expenses incurred in connection with the mother's pregnancy, and does not relate to the expenses of the mother's confinement.⁹

B. Thompson v. Merritt

In addition to its textual analysis, the circuit court relied on this Court's decision in Thompson, supra at 425, 481 N.W.2d 735, to support its conclusion that subsections 2(1) and 7(2) granted it discretion to apportion confinement expenses. We conclude that ...