Serafin v. Serafin

• Decision Date: 26 February 1976
• Docket Number: Docket No. 23915
• Citation: Serafin v. Serafin, 241 N.W.2d 272, 67 Mich.App. 517 (Mich. App. 1976)
• Parties: Donald SERAFIN, Plaintiff-Appellant, v. Gloria Jean SERAFIN, Defendant-Appellee. 67 Mich.App. 517, 241 N.W.2d 272
• Court: Court of Appeal of Michigan — District of US

Page 272

241 N.W.2d 272

Donald SERAFIN, Plaintiff-Appellant, v.Gloria Jean SERAFIN, Defendant-Appellee.

Docket No. 23915.

67 Mich.App. 517, 241 N.W.2d 272

Court of Appeals of Michigan.

Feb. 26, 1976.

Released for Publication May 5, 1976.

[67 MICHAPP 518] Milmet, Vecchio, Kennedy & Carnago by Richard F. Fellrath, Detroit, for plaintiff-appellant.

James Thomson, Dearborn, for defendant-appellee.

Before DANHOF, P.J., and McGREGOR and KAUFMAN, JJ.

[67 MICHAPP 519]KAUFMAN, Judge.

Plaintiff, Donald Serafin, appeals a judgment rendered by the Wayne County Circuit Court in a divorce action which he filed against defendant, Gloria Serafin.Plaintiff filed the complaint on August 6, 1973 and alleged a breakdown of the marriage relationship.Plaintiff alleged that the parties had separated and ceased cohabitation on or about August 1, 1972.On August 30, 1973, plaintiff requested entry of a default judgment against defendant for failure to timely file an answer.

On April 5, 1974, however, plaintiff filed an amended complaint which contained the following clause:

'In the place instead of Paragraph 4, Plaintiff alleges as follows: that during the time the parties lived and cohabited together as husband and wife until the filing of this amended complaint there were no children born as a result of cohabitation by the parties hereto.However, Plaintiff is informed and variably believes that a child was born to defendant wife in October of 1973.Your Plaintiff denies filiation and paternity of said child based upon non-cohabitation and non-access.'

Plaintiff requested the friend of the court to make a final report.This report was filed on August 22, 1974.The report noted the existence of one seven-month-old child named De Angela, born on October 24, 1973, who was living with defendant.The report further noted that defendant, in a sworn statement, had said that plaintiff was the father of this child, but that plaintiff denied paternity.The report also stated that, according to defendant Gloria, the date of separation was October, 1972; while according to plaintiff Donald, the date of separation was September 31, 1971(sic).

On September 12, 1974defendant filed an answer[67 MICHAPP 520] in which she alleged that the correct date of separation was January, 1973 and claimed that plaintiff fathered her child.At a pretrial deposition, defendant refused to give any testimony concerning the birth of the child, and stated that she was unwilling to take a blood test.Plaintiff testified that he was married to defendant on July 10, 1971, and that the last time he had cohabited with her was when he came from his air force base to visit her in September, 1972.After this visit, plaintiff testified, he returned to his 'base of residence', and he had not seen his wife since that time.Plaintiff testified that other than the month of September in 1972, one week in May when he'was home visiting', and one week in August when he'was here in court', he had been 'stationed at Baudette Air Force Station in Minnesota' during the years 1972 and 1973 and 'had not left there for any reason'.Plaintiff testified that he also had a job at the NCO Club during this period which occupied most of his free time.

Plaintiff testified that during the months of December, 1972, and January of 1973he was at his 'duty station on base'.Plaintiff also testified that he had 'had no three-day passes or any other passes during the month of January, 1973'.To his knowledge, plaintiff testified, there had been no children born of his marriage to defendant.

Defendant testified that she was married to plaintiff on July 10, 1971, and that she had separated from her husband in January of 1973.One child, De Angela Rene Serafin, was born of this marriage on October 24, 1973.Defendant testified that in January of 1973, she had gone to and stayed at International Falls, and plaintiff had driven from his base to see her.On cross-examination, defendant testified that this visit had taken place in the middle of January, 1973.

[67 MICHAPP 521]Defendant further testified that the only time she and plaintiff had had a reconciliation after October, 1972 was the three-day period around January 15, 1973, consisting of three days and two nights.All this time, defendant testified, she had stayed in the motel, except when she'walked to the dimestore and back'.She claimed that she had at no time during this weekend gone to the Baudette Air Force base, and that plaintiff had come to see her 'on his off-duty time, when he was not at his work'.

On rebuttal, plaintiff again claimed that he had not seen defendant after September, 1972.Plaintiff sought to have the court order defendant to have a blood test, but the court denied plaintiff's motion.The court, in granting the divorce and requiring plaintiff to pay child support, stated:

'The testimony of the parties, of course, can't be used to illegitimatize a child.The only testimony of the plaintiff is to the effect that he was on duty all the time.The defendant doesn't deny that.Her testimony is that she was up there during a period of time that he could have fathered this child.It is within the period of gestation, being some nine months from January to October.Just about nine months.Actually, just slightly over.So I would have to find, based upon what is before the Court and the posture of the law at this time, that the plaintiff is the father and order that custody of the child be awarded to the defendant wife until the child attains the age of eighteen and that the plaintiff husband pay the sum of $21.00 a week plus medical, dental and hospital expenses until the child attains the age of majority and I will order reasonable visitation privileges to the plaintiff husband.'(Emphasis supplied.)

From the emphasized portion, it appears that the trial court admitted into evidence plaintiff's testimony that he had not seen defendant after either [67 MICHAPP 522] September or October, 1972 but did not consider this testimony in determining paternity.In so doing, the trial court relied on Lord Mansfield's rule which provides that:

'neither husband nor wife will be permitted, as a witness, to bastardize the issue of the wife after marriage by testifying to the nonaccess of the husband.Egbert v. Greenwalt, 44 Mich. 245(38 Am.Rep. 260)(6 N.W. 654(1880));People v. Case, 171 Mich. 282(137 N.W. 55(1912)).'In re Wright's Estate, 237 Mich. 375, 379, 211 N.W. 746(1927).¹

It is the application of this rule which plaintiff assigns as error on appeal.As he did at trial, plaintiff contends that the rule's application violated the due process clauses of the United States and Michigan Constitutions.U.S.Const., Am. XIV, § 1,Const.1963, art. 1, § 17.Defendant responds by citing a number of cases in which Michigan appellate courts have upheld Lord Mansfield's rule, some despite their recognition of its shortcomings.

We agree with plaintiff and hold that the application of Lord Mansfield's rule unconstitutionally took property from plaintiff without due process of law.We are not unmindful of those cases cited by defendant which upheld the rule challenged by plaintiff today.We find, however, that they did not consider a due process challenge to the rule.The most recent challenge to the rule considered by [67 MICHAPP 523] our Supreme Court was made in the companion cases of In re Wright's Estate, supra, and Yanoff v. Yanoff, 237 Mich. 383, 211 N.W. 735(1927).In both cases, the rule was deemed 'too well settled to be disturbed', Id. at 389, 211 N.W. at 737, and upheld on public policy grounds.Similarly, this Court, in Maxwell v. Maxwell, 15 Mich.App. 607, 167 N.W.2d 114(1969), Lv. den. 381 Mich. 815(1969), considered, and rejected, only policy challenges to the rule.

Recently, in People v. Wiseman, 63 Mich.App. 137, 234 N.W.2d 429(1975), this Court did consider due process objections.In Wiseman, defendant relied on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972), a case which struck down a statutory irrebuttable presumption.The Wiseman panel rejected this argument because the presumption of legitimacy is rebuttable.The Court noted:

'Lord Mansfield's rule does not prohibit all proof that plaintiff is not the father of the child, but only the testimony of him and his former wife as to non-access.Other evidence, such as testimony of third parties as to defendant's whereabouts or the results of blood tests, could be used by him to disprove paternity.'Id.63 Mich.App. at 140, 234 N.W.2d at 431.

Parenthetically, the Wiseman panel allowed its parties to circumvent Lord Mansfield's rule by stipulation.Although the panel held that testimony by either party as to non-access was inadmissible, it allowed the parties to stipulate to non-access.

We agree that Stanley v. Illinois, supra, is not controlling.However, a rule of law need not exclude all evidence contrary to a presumption to be found constitutionally infirm.See E.g., Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297(1973), where the application of a hearsay rule [67 MICHAPP 524] was found to violate due process not withstanding the fact that defendant could have used other evidence to impeach certain testimony.See alsoGile v. Hudnutt, 279 Mich. 358, 365, 272 N.W. 706(1937), which noted that a rule of law preventing a party from introducing favorable evidence would deprive him of a fair and effective trial and would, thus, violate due process.It has long been the law that

'A statute creating a presumption that is arbitrary or That operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment.'Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575(1929).(Citation omitted.)(Emphasis supplied.)²

While we do not dispute the validity and rationality of the common law presumption of legitimacy, we find that the reasons supporting the...