Whybra v. Gustafson

• Decision Date: 28 December 1961
• Docket Number: No. 11,11
• Citation: 112 N.W.2d 503,365 Mich. 396
• Parties: Muriel WHYBRA, Plaintiff and Appellant, v. Richard B. GUSTAFSON, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 503

112 N.W.2d 503

365 Mich. 396

Muriel WHYBRA, Plaintiff and Appellant, v. Richard B. GUSTAFSON, Defendant and Appellee.

No. 11.

Supreme Court of Michigan.

Dec. 28, 1961.

Clevenger & James, Sault Ste. Marie, for appellant.

Coates & Kline, Sault Ste. Marie, for appellee.

Before the Entire Behch, except SMITH, J.

EDWARDS, Justice.

This is an appeal resulting from trial in the Chippewa county circuit court of a complaint lodged by plaintiff-appellant herein under the terms of the paternity act (C.L.S.1956, § 722.711 et seq. [Stat.Ann.1957 Rev. § 25.491 et seq.]). The essential allegations of the complaint are that defendant Gustafson was the father of a child born to complainant October 18, 1958, out of wedlock. The complaint sought a finding of parentage in relation to the defendant and an order of filiation under the act, and it sought the confinement expense for complainant as well as support for the child up to the 18th birthday, and attorneys' fees.

It appears that the 2 people, complainant and defendant, started going together in high school but that the pregnancy took place during the senior year of defendant who was a year-and-3-months younger than complainant and 2 years behind her in school. Complainant is now married to another man by whom she has another child, and the defendant is now attending William and Mary College and is planning on going to law school thereafter.

At pretrial counsel for defendant admitted paternity, and the only issues which were submitted to the court at the time of trial pertained to the amount of support for the child, and whether or not the statute authorized the court to award an attorneys' fee. in this Part may be reduced by twotenths

After receiving testimony on the financial judge entered an order of filiation and required defendant to pay $2,000 in a lump sum or 5 yearly installmants of $400 each with interest, and $220 as confinement costs not previously paid. He denied the request for attorneys' fee. The circuit judge wrote a very interesting opinion, holding that support for a child under this statute should be computed differently than support ordered in a divorce action, citing differences in the father's relationship to this child from the divorce situation. He said:

'These are factors inherent in the situation why the full allowance for 1 child as in a divorce case should not be used, and the court has taken 70% as a reasonable adjustment for the differences. Since the mother is charged with some of the support, the court feels 35% is a proper basis for the award.'

The circuit judge then sought to apply this 35% against a friend-of-court schedule of support and thus arrived at the $2,000 support figure, payable over 5 years by the father.

This statute provides for voluntary settlement of this type of claim by the parties. Under the preceding statute a power to effect such a compromise and discharge was placed in the hands of the circuit judge. C.L.1948, § 722.611 (Stat.Ann.1957 Rev. § 25.461). But this section was materially altered in the new paternity act which provided:

'Sec. 3. (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.' C.L.S.1956, § 722.713 (Stat.Ann.1957 Rev. § 25.493).

We believe the circuit judge was in error in failing to recognize that the new act had eliminated the circuit judge's power to order a settlement. Or, if his order be construed as a lump sum order for payment now of all support contemplated by the act, we cannot regard the order as either adequate or in compliance with the language and intent of the act.

The support provisions of the new paternity act provide:

'Sec. 2. (a) The parents of a child so born out of wedlock are liable for the necessary support and education of the child * * *.' C.L.S.1956, § 722.712 (Stat.Ann.1957 Rev. § 25.492).

'Sec. 7. (a) * * * if the defendant acknowledges paternity orally to the court * * * the court shall make a order of filiation, declaring paternity and for the support and education of the child.

'(b) The order of filiation shall specify the sum to be paid weekly or othrwise, until the child reaches the age of 18. In addition to providing for the support and education, the order shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement; for the funeral expenses if the child has died; for the support of the child prior to the making of the order of filiation; and such expenses in connection with the pregnancy of the mother or of the proceedings as the court deems proper.' C.L.S.1956, § 722.717 (Stat.Ann.1957 Rev. § 25.497).

'Sec. 11. (a) If a mother of a child born out of wedlock possesses property and fails to support and educate her child, the court having jurisdiction * * * may examine into the matter and after a hearing may make an order charging the mother with the payment of money weekly or otherwise for the support and education of the child. * * *

'(c) Nothing in this section shall be deemed to relieve the father from liability for support and education of the child in accordance with the provisions of this act.' C.L.S.1956, §...