Sturak v. Ozomaro

• Decision Date: 23 February 2000
• Docket Number: Docket No. 207331.
• Citation: 606 N.W.2d 411,238 Mich. App. 549
• Parties: Jeanne Marie STURAK, a/k/a Jeanne Marie Punschke, Plaintiff-Appellee, v. Odezi Osioni OZOMARO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

606 N.W.2d 411

238 Mich. App. 549

Jeanne Marie STURAK, a/k/a Jeanne Marie Punschke, Plaintiff-Appellee, v. Odezi Osioni OZOMARO, Defendant-Appellant.

Docket No. 207331.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Grand Rapids.

Decided November 16, 1999, at 9:15 a.m.

Released for Publication February 23, 2000.

James J. Gregart, Prosecuting Attorney, and Paul J. Bridenstine, Assistant Prosecuting Attorney, Kalamazoo, for the plaintiff.

Rathert Law Offices, P.C. (by Mary J. Hosley), Kalamazoo, for the defendant.

Before: GAGE, P.J., and WHITE and MARKEY, JJ.

GAGE, P.J.

Defendant appeals as of right the trial court's order setting aside a 1985 settlement agreement and entering a default judgment declaring his paternity of plaintiff's son. We affirm.

I Facts and Proceedings

In June 1983, plaintiff filed a complaint in the Kalamazoo Circuit Court alleging that defendant was the father of her minor child, A.S.P., born May 17, 1983. The court ordered that the parties and child submit to blood tests to determine the child's paternity. The parties did submit to blood testing and subsequently entered an agreement that required defendant to pay plaintiff $3,500 "in complete and full settlement of any claim that the plaintiff may have against the defendant for the cost of confinement, or the maintenance, support and education of" the child. The agreement specifically provided that defendant did not acknowledge paternity. In February 1985, the circuit court approved the settlement agreement. Defendant ultimately satisfied his end of the bargain, and the court in March 1991 ordered the revocation of an income withholding order that had been entered against defendant.

In September 1996, in the wake of this Court's decision in Dones v. Thomas, 210 Mich.App. 674, 534 N.W.2d 221 (1995), which held that the statutory provision governing settlement agreements in paternity actions was unconstitutional and invalid, plaintiff moved to modify and set aside the parties' 1985 settlement agreement. Relying on Dones, the circuit court set aside the 1985 agreement and again ordered that the parties and the minor submit to paternity blood testing.¹ Defendant then moved that the court reverse its order setting aside the 1985 settlement agreement, arguing that the court should not apply Dones retroactively. The court denied defendant's motion and reordered the blood tests.² After defendant failed to comply with the court's order requiring blood tests, plaintiff moved for and the court granted a default judgment of paternity against defendant pursuant to M.C.L. § 722.716(1)(a); MSA 25.496(1)(a). The court subsequently entered a default order of filiation requiring that defendant, among other obligations, pay child support of $93 a week commencing on July 18, 1997, without credit for the $3,500 defendant had paid pursuant to the parties' 1985 settlement agreement.

The parties entered their 1985 settlement agreement, the continuing validity of which represents the core of their instant dispute, pursuant to former § 3 of the Paternity Act, M.C.L. § 722.713; MSA 25.493. Section 3 provided as follows:

(a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.

(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.

This Court has adopted different stances regarding the validity of § 3 and has only recently definitively resolved this question. An examination of the history of this Court's treatment of § 3 is necessary to our informed resolution of the parties' instant dispute.

II Analysis and Treatment of § 3 of the Paternity Act

In Crego v. Coleman, 201 Mich.App. 443, 506 N.W.2d 568 (1993) (Crego I),

the plaintiff sought modification of a settlement agreement she and the defendant had entered under § 3. Id. at 444-445, 506 N.W.2d 568. The parties' agreement did not acknowledge the defendant's paternity and explained that "`it is the intent of the parties that the attached order is not modifiable.' " Id. at 445, 506 N.W.2d 568. The trial court dismissed the plaintiff's action on the basis of res judicata. Id. at 444, 506 N.W.2d 568. This Court rejected the proposition that the binding effect of a settlement in a paternity action denied an illegitimate child constitutional equal protection rights, reasoning that the illegitimate child's equal protection rights did not justify increasing an alleged father's support obligation, while leaving him bound by his agreement to surrender his right to a judicial determination of paternity. Id. at 446, 506 N.W.2d 568, citing Hisaw v. Hayes, 133 Mich.App. 639, 642, 644-645, 350 N.W.2d 302 (1984). The Crego I Court concluded that because subsection 3(b) specifically provided that performance of a settlement agreement after court approval barred "other remedies of the mother or child for the support and education of the child," the parties were precluded from seeking modification of their agreement absent language within the agreement itself specifically providing for modification. Crego I, supra at 447, 506 N.W.2d 568.

This Court again addressed the constitutionality of § 3 in Dones, supra.

The plaintiff minor, through his next friend, sought modification of a paternity settlement agreement entered by his parents. The defendant had acknowledged paternity and agreed to provide the plaintiff certain sums of money. The plaintiff argued that his right to support could not have been compromised in this settlement, but the trial court granted the defendant summary disposition. On appeal, this Court noted the distinction that while the Paternity Act specifically provides that parties may reach a settlement that bars future recovery or modification of support, the divorce statutes specifically conferred on the court having jurisdiction the power to modify support awards on a showing of a change in circumstance.³

Dones, supra at 675-676, 534 N.W.2d 221. The Court reasoned that, under the intermediate-level scrutiny with which illegitimacy classifications are examined, the statutory scheme that treated legitimate and illegitimate children differently did not substantially relate to an important state interest. Id. at 677, 534 N.W.2d 221. While the defendant contended that § 3 promoted settlement and finality in paternity proceedings, the Court noted that, in light of recent scientific advances in establishing paternity, the need to settle paternity proceedings had diminished because the danger of inaccurate determinations had been minimized. Id. at 678-679, 534 N.W.2d 221. The Court concluded that § 3 was unconstitutional because the need for paternity claim settlement was now the same as the need for settlement of a paternity/support question in a divorce proceeding:

[B]ecause the Legislature has determined in the context of divorce proceedings that the need to allow a modification of child support upon a change in circumstance outweighs the need for settlement and finality, the same conclusion must be applied to paternity actions.

... [Section 3] is unconstitutional because it violates equal protection to the extent that it affords the parties to a paternity action greater settlement rights than are afforded parties to a divorce action with respect to the child support issue and to the extent that it renders child support awards under the Paternity Act unmodifiable while child support awards under the divorce statutes remain modifiable. [Id. at 679, 534 N.W.2d 221.]

Accordingly, the Court remanded the plaintiff's claim for modification to the trial court. Id. at 680, 534 N.W.2d 221. The Dones Court failed to address the prior Crego I Court's decision to the contrary.

Following this Court's Dones decision, the Legislature repealed § 3, effective June 1, 1997, noting that this Court had found § 3 unconstitutional. 1996 PA 308; Senate Fiscal Agency Bill Analysis, SB 604, June 24, 1996. Also following Dones, the plaintiff from Crego I refiled her suit seeking modification of the settlement agreement she had entered pursuant to § 3. The circuit court granted the plaintiff's motion for modification, concluding that it was bound to follow Dones, the most recent decision addressing the constitutionality of § 3. The defendant appealed. Crego v. Coleman. 226 Mich.App. 815, 817, 573 N.W.2d 291 (1997) (Crego II).

Although the Crego II Court indicated its agreement with the Dones Court's analysis and conclusion, it reversed the circuit court's orders on the basis that, pursuant to MCR 7.215(H)(1), both this Court and the circuit court were required to follow Crego I, the first post-November 1, 1990, published opinion ruling on the constitutionality of § 3. Crego II, supra.

A conflict panel of this Court was subsequently convened to resolve the disagreement between the Crego I and Crego II decisions, and the Crego II opinion was vacated. MCR 7.215(H). In Crego v. Coleman, 232 Mich.App. 284, 591 N.W.2d 277 (1998) (Crego III),

the majority agreed with the analysis of the Crego II Court that determined § 3 unconstitutionally violated equal protection guarantees. Crego III, supra at 288, 591 N.W.2d 277. The Crego III Court reiterated that while all children have an inherent right to parental support, § 3 denied children born outside marriage who are not the subject of a filiation order the right to seek modification of support orders, a right expressly granted to other children. Crego III, supra at 290-292, 591 N.W.2d 277. In light of "`the announced public policy of this state ... to treat children born out of wedlock...