Serafin v. Serafin

Decision Date24 October 1977
Docket NumberNo. 10,10
Citation401 Mich. 629,258 N.W.2d 461
PartiesDonald K. SERAFIN, Plaintiff-Appellee, v. Gloria Jean SERAFIN, Defendant-Appellant. 401 Mich. 629, 258 N.W.2d 461
CourtMichigan Supreme Court

Richard F. Fellrath, Milmet, Vecchio, Kennedy & Carnago, P. C., Detroit, for plaintiff-appellee.

James Thomson, Dearborn, for defendant-appellant.

KAVANAGH, Chief Justice.

Plaintiff sued for divorce and defendant filed answer and counter-claim. Only two witnesses were called to testify, husband and wife. Plaintiff's attorney sought examination of plaintiff and cross-examination of defendant to show nonaccess of the husband to the wife to affect the legitimacy of the child born in wedlock.

Defendant's assertion that such evidence could not be considered was accepted and plaintiff was ordered to support the child born after the parties separated. On plaintiff's appeal to the Court of Appeals, that court held that the refusal to consider plaintiff's testimony disputing paternity violated his due process rights.

We are satisfied that the Court of Appeals reached the correct decision so we affirm, although we do not reach the constitutional question.

The evidentiary rule applied by the trial court to bar consideration of plaintiff's testimony concerning nonaccess is commonly known as "Lord Mansfield's Rule". The rule was first uttered by Lord Mansfield in Goodright v. Moss, 2 Cowp. 591; 98 Eng.Rep. 1257 (1777), an ejectment case:

"The law of England is clear, that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage.

"As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious * * *."

This dictum was judicially incorporated into the law of this state in Egbert v. Greenwalt, 44 Mich. 245, 248, 6 N.W. 654, 38 Am.Rep. 260 (1880), where the court stated that "no judge or author has ever dissented" from Lord Mansfield's "strong approval" of it.

Since the decision in Egbert, however, a growing number of authors and judges have expressed the dissatisfaction with the rule that had not been voiced in 1880. 1 Among the most vociferous in his objection to the rule is Professor Wigmore, who attacks the rule as having no true foundation in English case precedent at the time it was stated. 7 Wigmore on Evidence (3d ed.), §§ 2063, 2064. Wigmore also condemns subsequent efforts to justify and explain the rule as "mere pharisaical afterthoughts", and he concludes that there are no perceivable policy reasons to maintain it. Wigmore, supra, § 2064.

We agree that the rule has outlived the policy reasons initially advanced to support it and, finding none others persuasive, we hold that a husband and wife may testify concerning nonaccess to each other. 2

The policy considerations underlying the rule have never been totally clear in this state, but the court in In re Wright's Estate, 237 Mich. 375, 381, 211 N.W. 746, 749 (1927), gave the following summary:

"The Mansfield rule, undoubtedly, lessens the number of public charges which would have to be cared for and supported by the public. It works for the peace and quiet of the family. It works for the peace of the community and society generally.

"In reviewing the many reasons given for the rule by its author, text-book writers and courts, we think the prime reason for the rule is as stated that it is against public policy to permit parents to give testimony bastardizing their issue."

We are satisfied that further adherence to Lord Mansfield's rule cannot validly be premised on the assertion that it operates to prevent increased enrollment on public welfare lists. But even assuming that it has such an effect, and apart from the due process objections that might be raised against such a policy, we say with the Supreme Court of Maine: "We are not persuaded that the public treasury should be protected by foisting upon a husband the support of a child obviously not his own." Ventresco v. Bushey, 159 Me. 241, 249, 191 A.2d 104, 108 (1963).

We are likewise no longer convinced that refusal to admit and consider the parent's testimony of nonaccess, "works for the peace and quiet of the family". Wright, supra.

As the court in Moore v. Smith, 178 Miss. 383, 172 So. 317, 320 (1937), pointed out, familial tranquility might be more readily destroyed by forcing a husband to support a child that in fact is not his, while protecting his wife and her paramour who engaged in extramarital activity in gross violation of the marital relation.

Additionally, the question of whether the husband is the father of a child often is not presented in court until support is sought during or after a divorce proceeding. At either point, attempts to guard the quietude of the home would seem to be somewhat late.

Neither is the peace of the general society fostered by continued adherence to Lord Mansfield's rule. Rather, we are convinced, it is best fostered by lifting the veil of incompetency imposed upon a husband and wife by the rule. In our view the public peace and respect for the law are enhanced, not by arbitrarily assigning the duty of support to a man who is not the father of the child, but by allowing him to contest paternity by his best evidence. Moore, supra, 393-394, 172 So. 317.

The Texas Court of Civil Appeals expressed our viewpoint in Davis v. Davis, 507 S.W.2d 841, 847 (Tex.Civ.App.1974), rev'd on other grounds, 521 S.W.2d 603 (Tex.1975), where it stated:

"If the function of a court is to find the truth of a matter so that justice might be done, then a rule which absolutely excludes the best possible evidence of a matter in issue rather than allow it to be weighed by the trier of fact must necessarily lead to injustice. Further, when a court voluntarily blindfolds itself to what every citizen can see, the public must justifiably question the administration of law to just that extent."

As noted in the Court of Appeals opinion in this case, 67 Mich.App. 517, 525-526, 241 N.W.2d 272 (1976), the United States Supreme Court has recently done much under the equal protection clause of the 14th Amendment to invalidate the arbitrary distinction drawn between illegitimate and legitimate children as regards substantive rights. See, also, Anno: Discrimination on Basis of Illegitimacy as Denial of Constitutional Rights, 38 A.L.R.3d 613.

Our state law also has diminished the adverse consequences once attendant upon the status of illegitimacy. Michigan statutes now provide that an illegitimate may inherit from his or her mother, M.C.L.A. § 702.81; M.S.A. § 27.3178(151). An illegitimate may be legitimated by the parents even absent their intermarriage, and if legitimated, the child then has "the identical status, rights and duties of a child born in lawful wedlock * * *". M.C.L.A. § 702.83; M.S.A. § 27.3178(153).

The child is also guarded by the still viable and strong, though rebuttable, presumption of legitimacy. Maxwell v. Maxwell, 15 Mich.App. 607, 617, 167 N.W.2d 114 (1969). We hold that, in order to rebut the presumption, clear and convincing evidence must be given.

We are satisfied that this policy best protects the interests of all concerned.

Affirmed, costs to plaintiff.


COLEMAN, Justice (concurring).

My colleagues focus their attention primarily on the valid and important interests of husbands who deny parenthood in divorce cases such as this, and they conclude that Lord Mansfield's Rule 1 should be abolished. I understand the reasoning behind this departure from long established precedent and, despite adherence to the rule by a majority of our sister states, 2 I agree that a change is required. I write separately to highlight the interests of the children who will be affected by the rule's abolition and to emphasize the continuing strength and validity of the presumption of legitimacy.

It is true that the legal status of children born out of wedlock has improved significantly since the Eighteenth Century when Lord Mansfield first announced what became known as his rule. It is also true that should the husband not be required to pay child support, public assistance benefits may be available for the child's minimum financial needs, usually in his or her own home.

Despite these enlightened advances, there still are, unfortunately, social distinctions made between the legitimate and illegitimate child which continue to stigmatize the illegitimate child and scar his or her psychological development. We need no learned treatise to know that many children branded as illegitimate suffer painful and sometimes crippling emotional damage at the hands of cruel or thoughtless peers and adults. The word "bastard" has not yet lost its sting to the children against whom it is too often applied. Moreover, feelings of parental rejection and abandonment are realities that often continue to plague the illegitimate child. Related neglect and even abuse are not uncommon. It is no accident that many of these children strike back by committing antisocial or criminal acts.

For these reasons, among others, the law long has protected all children born during marriage by the presumption of legitimacy. The presumption speaks for the child whose future is at stake, even though he or she is not a party to the legal proceedings. It is distinct from Lord Mansfield's Rule and is not affected by today's decision. My colleagues recognize this and briefly comment on the strength of the presumption, stating that it can only be rebutted by "clear and convincing" evidence. I wish to emphasize how strong the presumption is and clarify the meaning of the words "clear and convincing". 3

The presumption of legitimacy is one of the strongest presumptions known to the law. When Michigan first...

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