Syrkowski v. Appleyard, Docket No. 71057

• Decision Date: 17 January 1985
• Docket Number: Docket No. 71057
• Citation: 362 N.W.2d 211,420 Mich. 367
• Parties: George SYRKOWSKI, Plaintiff-Appellant, v. Corinne APPLEYARD, Defendant-Appellant, and Attorney General for the State of Michigan, Intervenor Defendant-Appellee, and Roger A. Appleyard, Intervenor-Defendant. 420 Mich. 367, 362 N.W.2d 211
• Court: Michigan Supreme Court

Page 211

362 N.W.2d 211

George SYRKOWSKI, Plaintiff-Appellant, v. Corinne APPLEYARD, Defendant-Appellant, and Attorney General for the State of Michigan, Intervenor

Defendant-Appellee,

and

Roger A. Appleyard, Intervenor-Defendant.

Docket No. 71057.

420 Mich. 367, 362 N.W.2d 211

Supreme Court of Michigan.

Jan. 17, 1985.

Noel P. Keane, P.C. by Noel P. Keane, Dearborn, and Robert S. Harrison, Troy, for plaintiff-appellant.

John R. Hayes, Dearborn, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Eugene Krasicky, First Asst. Atty. Gen., and George M. Elworth, Asst. Atty. Gen., Lansing, for intervening defendants.

PER CURIAM.

The legal issue presented to us in this case is simple: does the circuit court have subject-matter jurisdiction over a biological father's Paternity Act ¹ request for an order of filiation declaring his paternity, when the biological mother and father have entered into a "surrogate parenting" agreement. The trial court and the Court of Appeals held that the circuit court lacked jurisdiction because this action is beyond the scope and purpose of The Paternity Act. The trial court granted a motion for accelerated judgment filed by the intervening defendant Attorney General. GCR 1963, 116.1(2). A divided Court of Appeals panel affirmed. Syrkowski v. Appleyard, 122 Mich.App. 506, 333 N.W.2d 90 (1983). We reverse and remand for further proceedings.

I

Plaintiff George Syrkowski is married, but that marriage has not produced any children. ² Defendant Corinne Appleyard is married to intervening defendant Roger A. Appleyard. That marriage has produced two children.

On November 23, 1981, Mrs. Appleyard gave birth to her third child, Teresa Mary Syrkowski. All parties assume that this third child was conceived when Mrs. Appleyard was artificially inseminated with the plaintiff's semen on March 23, 24, and 25, 1981. She agreed to bear the plaintiff's child in return for his promise to pay her $10,000 over and above all medical and confinement expenses. For purposes of complying with existing law, Roger Appleyard signed an affidavit of non-consent to the artificial insemination on April 22, 1981. The plaintiff and his wife have physical custody of the child. The Appleyards have consistently cooperated with his efforts to obtain a court order acknowledging his paternity.

II

This litigation began five months before Teresa Syrkowski's birth. Plaintiff's complaint relied on The Paternity Act, particularly subsections 4(b) and (f):

"(b) Proceedings in pursuance of this act may be instituted during the pregnancy of the mother * * *.

"(f) The father or putative father of a child so born out of wedlock may file the complaint in the circuit court of the county in which such child or mother resides or is found, praying for the entry of the order of filiation as provided for in subsection (a) of section 7. The other parent of the child shall be made a party defendant * * *. The court, following the hearing, shall enter the order of filiation which shall have the same effect, be subject to the same provisions and enforced in the same manner as an order of filiation would be if entered on complaint of the mother." M.C.L. Sec. 722.714; M.S.A. Sec. 25.494.

The plaintiff further asked that he be named as father on Teresa's birth certificate:

"If the paternity of a child is determined by a court of competent jurisdiction, the name of the father shall be entered on the certificate of birth pursuant to the finding and order of the court. The surname of the child shall be entered on the certificate of birth pursuant to the designation of the child's mother." M.C.L. Sec. 333.2824(4); M.S.A. Sec. 14.15(2824)(4).

The defendant answered the complaint by admitting all the plaintiff's allegations and joining his request for relief. The parties then jointly submitted a proposed consent order of filiation. ³

At this point, the Attorney General sought and received permission to intervene. He then moved for accelerated judgment pursuant to GCR 1963, 116.1(2), alleging that the circuit court lacked subject matter jurisdiction. The Attorney General argued that the court had jurisdiction only over actions involving a "child born out of wedlock", ⁴ and that Teresa Syrkowski is not a child born out of wedlock since at least two statutes establish the presumption that a child born to an artificially inseminated married woman is treated for all purposes as her husband's child. The first section appears in the Public Health Code, 1978 P.A. 368; M.C.L. Sec. 333.1101 et seq.; M.S.A. Sec. 14.15(1101) et seq.:

"A child born to a married woman as the result of artificial insemination, with consent of her husband, is considered to be the legitimate child of the husband and wife." M.C.L. Sec. 333.2824(6); M.S.A. Sec. 14.15(2824)(6). (Emphasis added.)

Like subsection (4) cited by the plaintiff in his complaint, this subsection contains instructions about the information to be entered on a birth certificate. The Attorney General also relied on part of the Revised Probate Code, 1978 P.A. 642; M.C.L. Sec. 700.1 et seq.; M.S.A. Sec. 27.5001 et seq.:

"If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for all purposes of intestate succession. A child conceived following artificial insemination of a married woman with the consent of her husband shall be considered as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence." M.C.L. Sec. 700.111(2); M.S.A. Sec. 27.5111(2). (Emphasis added.)

Both statutes cited by the Attorney General make the husband's consent to the artificial insemination a prerequisite to application of the presumption. In other words, it is a rebuttable presumption. The Attorney General's intervention in this case prompted Mr. Appleyard's appearance as an additional intervening defendant. His affidavit of non-consent to the artificial insemination was filed at this time.

The trial judge granted the Attorney General's motion for accelerated judgment. The judge did not rely on the two statutes cited in the motion because he concluded that the presumption of the husband's paternity was at most a rebuttable presumption. Instead, the judge ruled that the plaintiff's requested relief was beyond the scope of The Paternity Act.

Judge Gribbs reasoned that, because The Paternity Act is silent in regard to these specific types of parenting arrangements, it was necessary to look beyond the words of the statute to the intent of the Legislature at the time of enactment. After reviewing the legislative history and the circumstances existing in 1956, he concluded that the Legislature had not intended The Paternity Act to be applied to the situation presented. He read the act as having the limited purpose of securing financial support for children born out of wedlock. He declined to give the act a broader interpretation in this case, because to do so would sanction surrogate parenting arrangements, which Judge Gribbs viewed as being contrary to public policy, citing Doe v. Attorney General, 106 Mich.App. 169, 307 N.W.2d 438 (1981), lv. den. 414 Mich. 875 (1982), cert. den. 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983).

The plaintiff and Mrs. Appleyard filed a joint appeal, but the Court of Appeals affirmed. ⁵ That court declined to decide whether surrogate parent arrangements are contrary to public policy. However, it agreed with the trial judge's ruling that The Paternity Act was designed only for the "purpose of providing support for children born out of wedlock". It noted that no amendment had altered the intent of the act, and it found that the original purpose "does not encompass the monetary transaction proposed in this case." 122 Mich.App. 514, 515.

III

In this suit, plaintiff seeks only an order of filiation formally stating something that no one seriously disputes, viz., that the plaintiff is the biological father of Teresa Syrkowski. ⁶ We express no opinion about the plaintiff's entitlement to any other relief in the future. However, we agree with his contention that the trial court does have subject-matter jurisdiction in the present case.

In Winsett v. Donaldson, 69 Mich.App. 36, 244 N.W.2d 355 (1976), the Court of Appeals held that the circuit court lacked jurisdiction to hear an unmarried man's paternity act claim that he was the father of a child born to a married woman. The court reached that conclusion because the act's definition of "child born out of wedlock" formerly limited that definition to children born to unmarried women. That definition has now been changed. Its present text appears below:

" 'Child born out of wedlock' means a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child which the court has determined to be a child born during the marriage but not the issue of that marriage." M.C.L. Sec. 722.711(a); M.S.A. Sec. 25.491(a). (Emphasis added.)

The change may have been prompted by Smith v. Robbins, 91 Mich.App. 284, 283 N.W.2d 725 (1979), lv. den. 408 Mich. 853 (1980), which warned of equal protection problems in the Winsett interpretation of the statute. ⁷ See also Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977), which discarded Lord Mansfield's rule.

The plaintiff is prepared to prove that Teresa Syrkowski is a child born out of wedlock as defined by The Paternity Act. That will bring the child within the provisions of the act.

One part of the plaintiff's proofs will also establish that he is Teresa's biological father. The act makes the parents of a child born out of wedlock liable for the child's support and education. M.C.L. Sec. 722.712; M.S.A. Sec. 25.492. The lower courts held that imposition of liability for child support is the act's sole purpose. We can accept their assumption that the Legislature was...