Smith v. Robbins

• Citation: 283 N.W.2d 725,91 Mich.App. 284
• Decision Date: 10 July 1979
• Docket Number: Docket No. 78-2529
• Parties: Sandra Kay SMITH, Plaintiff-Appellee, v. James ROBBINS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 725

283 N.W.2d 725

91 Mich.App. 284

Sandra Kay SMITH, Plaintiff-Appellee, v. James ROBBINS, Defendant-Appellant.

Docket No. 78-2529.

Court of Appeals of Michigan.

July 10, 1979.

Rehearing Denied Aug. 21, 1979.

Released for Publication Oct. 10, 1979.

Tremp & Derman, P. C., by Robert P. Tremp, Bellaire, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James G. Young, Pros. Atty., David J. Churchill, Asst. Pros., for plaintiff-appellee.

Before HOLBROOK, P. J., and R. B. BURNS and BASHARA, JJ.

BASHARA, Judge.

Defendant appeals from a denial of a motion for rehearing and for a new trial. A judgment of filiation and an order for support were entered after the trial court found the defendant was the father of Kendall Wayne Smith, a child born to plaintiff.

Plaintiff filed a complaint seeking an order of filiation, alleging the defendant father her child. Plaintiff claims the child was conceived about April 5, 1970, and born January 27, 1971.

Defendant then filed a motion for summary judgment, alleging that plaintiff had not stated a claim upon which relief could be granted, GCR 1963, 117.2(1), because the child was conceived and born while plaintiff was married to Clinton Smith, Jr.

On the same day, the parties filed a stipulation of facts which stated that the plaintiff and Smith were married on June 7, 1969; that from January 10, 1970 to January 27, 1971, Smith was in the Army and plaintiff neither saw nor cohabited with him during that period; that the child was born January 27, 1971; that in June, 1971, Smith filed a complaint for divorce, which alleged he was not the natural father of the child. An amended complaint for divorce was filed June 22, 1972, alleging that there were no children born of the marriage, and on November 13, 1972, divorce was granted, the judgment making no reference to children.

The trial court, in denying the motion for summary judgment, ruled that the preamble, §§ 1(a)-(c) and § 16 of the Michigan Paternity Act, M.C.L. § 722.711(a)-(c); M.S.A. § 25.491(a)-(c), M.C.L. § 722.726; M.S.A. § 25.506, were unconstitutional on equal protection grounds.

The action proceeded to trial where testimony was taken from plaintiff, defendant and Smith's family, with whom plaintiff resided while he was in the service.

The court found that defendant was the biological father, and made the following findings of fact: that defendant and plaintiff had sexual intercourse in March and April of 1970; that plaintiff did not have sexual intercourse with any other individual during that time period; that defendant and plaintiff took no precautions to avoid pregnancy; and that plaintiff's last menstrual period before the child's birth was in March of 1970.

On appeal, defendant raises numerous issues, only three of which merit discussion.

I

Constitutionality of the Michigan Paternity Act, M.C.L. § 722.711 Et seq.; M.S.A. § 25.491 Et seq.

The trial court found that the Michigan Paternity Act denies equal protection to a child conceived and born during his mother's marriage to other than the biological father.

A child born during marriage is accorded a strong but not irrebuttable presumption of legitimacy. People v. Case, 171 Mich. 282, 284, 137 N.W. 55 (1912). The possibility of the presumption being overcome has been greatly enhanced since "Lord Mansfield's Rule" barring testimony of nonaccess during marriage has been found to be invalid. Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977).

The adverse consequences once attendant upon the status of illegitimacy have been greatly diminished by statutory enactments. ¹

Under the Michigan Paternity Act, M.C.L. § 722.711 Et seq.; M.S.A. § 25.491 Et seq., an illegitimate child can require his biological father to provide support. Section 2(a) of the act provides that the "parents of a child so born out of wedlock are liable for the necessary support and education of the child". "Out of wedlock" is defined in section 1(a) of the act as,

"A child born out of wedlock is a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child."

Defendant argues that since Kendall Wayne Smith was born while his mother was married, he is prohibited by the terms of the statute to turn to his biological father for support. ²

An individual is entitled to equal protection under the law. U.S.Const. Am. XIV; Const.1963, art. 1, § 2. A legislative classification may not be arbitrary. There must be a rational relation between the classification and the purpose of the act in which it is found. United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821,37 L.Ed.2d 782 (1973), Fox v. Employment Security Comm., 379 Mich. 579, 588, 153 N.W.2d 644 (1967).

Numerous recent United States Supreme Court decisions have found disparate statutory treatment between illegitimate and legitimate children to be constitutionally invalid. ³

If our paternity statute is interpreted as creating a distinction between support provided for an illegitimate child of an unwed mother and the illegitimate child of a married mother, a clearly irrational classification exists and the statute will be rendered unconstitutional. This was the finding of the trial court.

However, we seek to construe statutes so as to sustain the constitutionality of the statutory scheme. Schwartz v. Secretary of State, 393 Mich. 42, 50, 222 N.W.2d 517 (1974). The primary rule of statutory construction is to determine and effectuate the Legislature's intent. Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. King v. Director of the Midland County Social Services, 73 Mich.App. 253, 258, 251 N.W.2d 270 (1977).

The purpose of the Paternity Act is to provide for the support of an illegitimate child. The announced public policy of this state is to treat children born out of wedlock as no less deserving of support than those born in wedlock. Boyles v. Brown, 69 Mich.App. 480, 245 N.W.2d 100 (1976).

Other jurisdictions, when faced with defining "out of wedlock", have determined that no distinction exists between the true illegitimate and the social illegitimate. ⁴

In State v. Coliton, 73 N.D. 582, 586, 17 N.W.2d 546, 549 (1945), the Supreme Court of North Dakota embarked upon a detailed analysis of the common-law concepts of illegitimacy and construction of the nature of wedlock in light of common-law notions. The court concluded that, since a married woman may have an illegitimate child:

"The term 'wedlock' refers to the status of the man and his wife, not the status of the woman and her paramour. As to the latter, there is no wedlock and the child born to them is born out of wedlock. Because it is thus born out of wedlock and is therefore illegitimate, the natural father can be required to support it."

The Supreme Court of North Carolina in Wright v. Gann, 27 N.C.App. 45, 47, 217 S.E.2d 761, 763 (1975), held that:

"The father of an illegitimate child has a legal duty to support his child. * * * Where a married woman has an illegitimate child, the father has the duty to support his child and not the woman's husband. * * *

"North Carolina does not impose upon a husband the burden of supporting another man's offspring. The legislature, by enacting G.S. § 49-14, intended to establish a means of support for illegitimate children. Statutory construction should seek to accomplish that purpose and not frustrate legislative intent. We interpret the phrase 'out of wedlock' in the statute as referring to the status of the child and not to the status of the mother."

As emphasized in Martin v. Lane, 57 Misc.2d 4, 6, 291 N.Y.S.2d 135, 138 (1968):

"The layman's understanding of the term 'child born out of wedlock' means unquestionably 'a child whose father is not the mother's husband' * * *. To hold otherwise * * * would infer that the Legislature was not cognizant of the common understanding of men."

See also Leonard v. Leonard, 360 So.2d 710 (Ala.1978), In the Matter of the Estate of Robert A. Marriott, Deceased, 515 P.2d 571, 573 (Okl.1973), Pursley v. Hisch, 119 Ind.App. 232, 85 N.E.2d 270 (1949).

The main objective sought to be accomplished by use of these various interpretations is to uphold legislation that mandates a child be supported by the biological father. B. v. O., 50 N.J. 93, 232 A.2d 401 (1967), Ingalls Shipbuilding Corp. v. Neuman, 322 F.Supp. 1229, 1241 (S.D.Miss, 1970), King v. King, 544 S.W.2d 795 (Tex.Civ.App., 1976).

Although the Michigan act adds an additional element, that of "unmarried", to the definition of an illegitimate child, "unmarried" and "out of wedlock" are not so substantially different that a construction of unmarried to include not lawfully married to the father of the child unduly strains the statutory language.

Judge V. J. Brennan, in a dissenting opinion in the recent case of Pruitt v. Pruitt, 90 Mich.App. 230, 282 N.W.2d 785 (1979), recognized the possible constitutional violation in the statute, although the majority did not reach the issue. He stated that "(a) literal reading * * * places the child in the case at bar (since the mother was married at the time of birth) outside the ambit of that act. Such a result is unacceptable. I would hold the Paternity Act operative where the mother of the child is not lawfully married to the father of the child".

We join with Judge Brennan in his interpretation of the Paternity Act.

II Standard of Proof

The next issue raised is whether there was sufficient evidence for the trial court's determination that defendant was the father of the child.

Paternity proceedings are quasi-criminal in nature. Artibee v. Cheboygan Circuit Judge, 397 Mich. 54, 57, 243 N.W.2d 248 (1976). The defendant is afforded the right to a jury trial, to appointed counsel, and protection against double jeopardy. Pruitt v. Pruitt, supra.

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