Stewart v. Stewart
| Decision Date | 06 August 1979 |
| Docket Number | Docket No. 78-4637 |
| Citation | 283 N.W.2d 809,91 Mich.App. 602 |
| Parties | Michael STEWART, Plaintiff-Appellant, v. Lynn STEWART, Defendant-Appellee. 91 Mich.App. 602, 283 N.W.2d 809 |
| Court | Court of Appeal of Michigan — District of US |
[91 MICHAPP 603] Alvin D. Treado, Muskegon, for plaintiff-appellant.
Mark C. Meyer, Muskegon, for defendant-appellee.
Before MacKENZIE, P. J., and HOLBROOK and CYNAR, JJ.
Plaintiff appeals by right the trial court's October 23, 1978, dismissal of plaintiff's petition for termination of paternity and/or child support.
[91 MICHAPP 604] The parties were married in Michigan on February 19, 1972. Plaintiff filed for divorce on March 24, 1975, and in the complaint for divorce plaintiff stated that Kimberly Ann Stewart, born July 23, 1973, was the one child born of the marriage. In his motion for temporary support, custody and interim property settlement, filed on March 24, 1975, plaintiff alleged that Kimberly Ann Stewart was a child of the parties. Plaintiff consented to the entry of a March 24, 1975, order for temporary support, custody and interim property settlement, and a modification thereof, dated July 17, 1975, which stated that Kimberly Ann Stewart was the minor child of the parties. Plaintiff also petitioned for and consented to a September 29, 1975, judgment of divorce which named Kimberly Ann Stebert as a child of the parties.
On June 30, 1978, plaintiff petitioned the court for an order determining paternity and/or terminating support, and in support thereof stated that plaintiff believed that the child was not born of the marriage for the reason of his nonaccess to defendant during the time of conception, admissions as to his nonpaternity by defendant to plaintiff and admissions by defendant to third parties as to plaintiff's nonpaternity. Plaintiff requested a hearing be set to determine plaintiff's nonpaternity of the child. The trial court dismissed plaintiff's petition because of plaintiff's reference to the child as the child of the parties in the motion for temporary support, the order for temporary support, and the ultimate judgment of divorce, and because plaintiff sought to make Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977) retroactive.
Lord Mansfield's Rule was judicially incorporated into Michigan Law in Egbert v. Greenwalt, 44 Mich. 245, 6 N.W. 654 (1880). The rule was first [91 MICHAPP 605] uttered by Lord Mansfield in Goodright v. Moss, 2 Cowp. 591-594, 98 Eng.Rep. 1257-1258 (1777), which was a rule of evidence that parties to a marriage could not testify concerning nonaccess when the...
To continue reading
Request your trial
-
Hackley v. Hackley
...41 Mich. 90, 96, 1 N.W. 1013 (1879). The doctrine of res judicata precludes this from happening. Baum, supra; Stewart v. Stewart, 91 Mich.App. 602, 605, 283 N.W.2d 809 (1979); see also Anno: Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment dec......
-
Paternity of JRW, Matter of
...court assessed punitive damages in an amount equivalent to the expenses incurred on appeal by the mother); Stewart v. Stewart, 91 Mich.App. 602, 283 N.W.2d 809 (1979) (res judicata and doctrine of estoppel barred father from disestablishing paternity); In re Marriage of Campbell, 741 S.W.2d......
-
People v. White, Docket No. 43473
...(3) its effect on the administration of justice. Accord, People v. Kamin, 405 Mich. 482, 275 N.W.2d 777 (1979); Stewart v. Stewart, 91 Mich.App. 602, 283 N.W.2d 809 (1979). As expounded in Sturdivant, the purpose of excluding blood type testimony relates to its low probative value when weig......
-
Cogan v. Cogan
...fathers from denying paternity after a divorce action see Baum v. Baum, 20 Mich.App. 68, 173 N.W.2d 744 (1969); Stewart v. Stewart, 91 Mich.App. 602, 283 N.W.2d 809 (1979).Other panels of this Court have reached the same result using a different analysis. See, e.g., Thompson v. Thompson, 11......