Darcel PHINISEE, Plaintiff/Appellee/Cross-Appellant,
v.
Eugene J. ROGERS, Defendant/Appellant/Cross-Appellee.
Docket No. 190353.
Court of Appeals of Michigan.
Submitted May 13, 1997, at Detroit. Decided May 8, 1998, at 9:10 a.m. Released for Publication August 19, 1998.*853 Loyst Fletcher, Jr., and Barry A. Wolf, Flint, for plaintiff/appellee/cross-appellant.
Marvin R. Smith, Pontiac, for defendant/appellant/cross-appellee.
Before MARKEY, P.J., and JANSEN and WHITE, JJ.
MARKEY, Presiding Judge.
Defendant Eugene J. Rogers appeals as of right and plaintiff Darcel Phinisee cross appeals as of right from the trial court's order partially granting and partially denying defendant's motion for summary disposition in this action to determine filiation and support. Plaintiff further cross appeals from the court's order requiring defendant to make support payments to plaintiff from the time plaintiff filed her complaint until she reaches 19&frac 12; years of age and denying plaintiff's request for attorneys fees. We affirm in part, reverse in part, and remand.
Plaintiff was born in 1975. Her mother claimed that defendant was plaintiff's father and commenced a paternity action against him in 1976. In that case, the trial court ruled that defendant was not plaintiff's father, but no final order was ever entered in the action. In December 1993, plaintiff turned eighteen years old. In February 1994, plaintiff commenced an action in her own name to establish defendant's paternity and to seek support from him. Her complaint contained claims for breach of a common-law duty to support a minor child and breach of the Paternity Act, M.C.L. § 722.714; M.S.A. § 25.494.
In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(5) and (7), alleging that plaintiff's complaint was barred by virtue of res judicata and the express terms of the Paternity Act. The trial court issued its opinion and order granting summary disposition to defendant on plaintiff's Paternity Act claim but denying summary disposition as to plaintiff's common-law claim upon finding a lack of privity between plaintiff and her mother with respect to the 1976 paternity action.
I
First, we address defendant's claim on appeal that res judicata prevents plaintiff from bringing the present cause of action because plaintiff's mother commenced a paternity action against defendant in 1976, in which he was found not to be plaintiff's biological *854 father. We disagree. For res judicata to apply, defendant must establish the following: (1) the former suit was decided on the merits, (2) the issues in the second action were or could have been resolved in the former action, and (3) both actions involved the same parties or their privies. Energy Reserves, Inc. v. Consumers Power Co., 221 Mich.App. 210, 215-216, 561 N.W.2d 854 (1997). Because res judicata is a question of law, we review de novo its application as well as the court's action on a motion for summary disposition.
In light of this Court's decision in Spada v. Pauley, 149 Mich.App. 196, 199, n. 1, 204-205, 385 N.W.2d 746 (1986), we find that the doctrine of res judicata is inapplicable here for several reasons. First, plaintiff was not a party or a privy to her mother's 1976 action. Other jurisdictions have come to the same conclusion, many of them relying on the following passage from Spada, supra at 204-205, 385 N.W.2d 746:
The interests of the parties to a paternity action are not necessarily identical to the illegitimate child's interests nor are they likely to be sufficiently similar to afford the child a forum to protect his rights under the Paternity Act. A mother may fail to initiate a paternity proceeding for various reasons. She may wish to avoid any contact with the father, she may wish to avoid disapproval of the community or her family, she may be able to support the child and not foresee a change in her circumstances, she may be subject to emotional strain and confusion that often attends the birth of an illegitimate child, or she may have a continuing relation with or affection for the father.... Also, the state's interest does not coincide with the illegitimate child's interest. The Department of Social Services is concerned with its own economic interest. A child's interests are much broader.6
6 At some point, the law must recognize the fact that a child's interests in paternity litigation are much greater than the mother's interest in continued support. "In addition to the right of the child to receive support many other present as well as future rights of the child are involved, depending on the facts and circumstances of a specific case." Wolfe v. Geno [(On Remand), 134 Mich.App. 433, 435-436, 351 N.W.2d 316 (1984) ] (Cynar, J., dissenting).
See SOV v. Colorado, 914 P.2d 355, 362, n. 10 (Colo., 1996) (citing, for example, twelve cases from various jurisdictions where it is "well recognized" that a child's interests in a paternity action differ from those of the child's mother); Johnson v. Norman, 66 Ohio St. 2d 186, 190, 421 N.E.2d 124 (1981) ("[p]rivity does not generally arise from the relationship between parent and child," so the dismissal with prejudice of the mother's paternity action in no way affected the child's common-law action for paternity and support); GEB v. SRW, 422 Mass. 158, 160-165, 661 N.E.2d 646 (1996) (settlement agreement between parents regarding paternity was not binding on the nonparty child because the mother's and child's interests are not the same and no guardian was appointed to represent the child), citing, e.g., Symonds v. Symonds, 385 Mass. 540, 545, n. 7, 432 N.E.2d 700 (1982) ("[a]ny determination that the husband is not the father of a child born to his wife during marriage is, of course, not binding on the child who is not a party to the proceeding").
In Sloan v. Madison Heights, 425 Mich. 288, 295-296, 389 N.W.2d 418 (1986), our Supreme Court defined "privity" as follows: "In its broadest sense, privity has been defined as `mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.'" (Citation omitted). Black's Law Dictionary (6th ed.), p. 1199, defines privity as
mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.... [It] signifies that [the] relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon [the] other, although [the] other was not a party to lawsuit.
"Privity between a party and a non-party requires both a `substantial identity of interests' and a `working or functional relationship... in which the interests of the non-party are presented and protected by the party in the litigation.'" SOV, supra at 360, quoting Public Service Co. v. Osmose Wood Preserving, Inc., 813 P.2d 785, 787 (Colo.App., 1991).
*855 We agree with Spada, supra, and the cases cited above, that plaintiff and plaintiff's mother, who filed the earlier unsuccessful paternity action against defendant, are not and were not in privity with each other. Moreover, there is no evidence on the record that a final, enforceable judgment was entered in the earlier paternity action, which would also preclude the application of res judicata. SOV, supra at 357, 359. Additionally, plaintiff could not have been a party to the original paternity action because she was not eighteen years of age after August 1984 and before June 1986, as required under M.C.L. § 722.714(1); M.S.A. § 25.494(1) of the Paternity Act. Accord SOV, supra at 360-361. We also agree with those courts that have recognized that an illegitimate child's interests in establishing paternity, which may extend not only to immediate support payments but also to future social security benefits and inheritance through the biological father, differ from the mother's interests in establishing paternity, which may be focused more on immediate financial concerns. Furthermore, extremely accurate scientific testing developed since 1976 now permits courts to confidently determine paternity. We will not require the trial court to shut its eyes to conclusive medical evidence establishing paternity merely because plaintiff's mother did not have access to the same information in 1976. Accordingly, we find that res judicata does not bar plaintiff's action against defendant.
II
Additionally, defendant and plaintiff both raise issues concerning the trial court's partial grant and partial denial of defendant's motion for summary disposition. Plaintiff brought her paternity and support claims under both the common law and the Paternity Act. The trial court granted defendant's motion for summary disposition as to plaintiff's cause of action under the Paternity Act but denied it with regard to plaintiff's cause of action brought under common law. We review de novo a trial court's ruling regarding a motion for summary disposition. Borman v. State Farm Fire & Casualty Co., 198 Mich.App. 675, 678, 499 N.W.2d 419 (1993), aff'd. 446 Mich. 482, 521 N.W.2d 266 (1994); see also Patterson v. Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994).
The Paternity Act, M.C.L. § 722.714; M.S.A. § 25.494, provided, in relevant part, at the time plaintiff commenced this action:
(1) An action under this act shall be brought by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the department of social services as provided in this act....
* * * * * *
(3) An action under this act may be instituted during the pregnancy of the child's mother, at any time before the child reaches 18 years of age, or for a child who became 18 years of age after August 15, 1984 and before June 2, 1986, before March 1, 1993....[1]
Plaintiff turned eighteen on December 9, 1993. She filed her complaint in this action on February 8, 1994. Clearly, she did not fall within the provisions established under the act. Therefore, the trial court did not err in granting defendant's motion for summary disposition as to plaintiff's cause of action under the Paternity Act.[2]
*856 Paternity actions are generally covered by statute; however, because the Paternity Act does not afford an illegitimate child the same rights as a legitimate child to bring an action after age eighteen, we have found a common-law right exists for an illegitimate child over age eighteen to bring a suit for support as provided for and limited by the general disability tolling provision of M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1).[3]Spada, supra at 206-207, 385 N.W.2d 746; accord Johnson, supra at 189, 421 N.E.2d 124, relying on the United States Supreme Court's decision in Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973);[4]Franklin v. Julian, 30 Ohio St. 2d 228, 283 N.E.2d 813 (1972) (illegitimate children have the same right as legitimate children to bring a civil action against their biological fathers for support and maintenance). In Gomez, supra at 538, 93 S. Ct. 872, the United States Supreme Court held that it is an unconstitutional denial of equal protection to grant legitimate children, but deny illegitimate children, a judicially enforceable right to seek support from their biological fathers.[5] See Spada, supra at 203, 385 N.W.2d 746.
This language from Gomez has been interpreted by courts to mean that an illegitimate child has the same common law right to support from his father as a legitimate child, e.g., JMS v. Benson (App., 1979), 91 Wis. 2d 526, 283 N.W.2d 465, 471;[[6]] and that an illegitimate child has a right to bring an action to determine paternity regardless of the existence of an authorizing state statute, e.g., State v. Douty (1979), 92 Wash.2d 930, 934, 603 P.2d 373; Wynn v. Wynn (Tex.Civ.App.1979), 587 S.W.2d 790, 793. [Johnson, supra at 189, n. 3, 421 N.E.2d 124. (Emphasis and footnote added).]
We agree with the court in Johnson, supra, that while there are two distinct proceedings in which to establish the paternity of an illegitimate child, i.e., a paternity action and a finding of paternity incident to an illegitimate child's action for support and maintenance, nothing precludes the illegitimate child from pursuing his common-law right to support. Accord Franklin, supra. Thus, the trial court did not err in denying defendant's motion for summary disposition as to plaintiff's cause of action brought under the common law theory.
III
On cross appeal, plaintiff also asserts that the trial court erred in limiting her damages to child support payments from the date of the filing of the lawsuit until age 19 1/2 years old. We agree. On appeal, we review a question of law de novo, Rapistan Corp. v. Michaels, 203 Mich.App. 301, 306, 511 N.W.2d 918 (1994), but the decision to award child support will not be reversed absent an abuse of discretion. Ghidotti v. Barber (On Remand), 222 Mich.App. 373, 377, 564 N.W.2d 141 (1997).
*857 Obviously, it makes no sense whatsoever to recognize a cause of action for an illegitimate child against his parent for support and permit that suit to be instituted within one year after the child turns eighteen years old, and to then find that damages, i.e., support payments, are limited to the period from the date of the filing of the complaint until the child turns eighteen or 19½ Plaintiff's right to child support payments is governed by M.C.L. § 722.3a; M.S.A. § 25.244(3a), which allows an award of support for a child who has reached eighteen years of age and is attending high school full time to continue until the child reaches the age of nineteen years and six months. Although plaintiff has no cause of action under the Paternity Act, we believe that the cases discussing the retroactive application of child support payments under that act are relevant because this is an analogous situation. Although nothing in the statute itself allows for support to be ordered retroactive to the child's birth, case law interpreting the Paternity Act does.
In Thompson v. Merritt, 192 Mich.App. 412, 420-422, 481 N.W.2d 735 (1991), one of the issues on appeal was whether the trial court erred in ordering the payment of child support retroactive to the child's birth. In holding that the trial court did not err in doing so, this Court found that the order of retroactive support was not a modification of an existing order; therefore, it was appropriate. Id. Moreover, this Court has also held that "children born out of wedlock [are] no less deserving of support than those children born in wedlock." Boyles v. Brown, 69 Mich.App. 480, 483, 245 N.W.2d 100 (1976). A finding of paternity certainly contemplates that the finding relates back to the child's birth. If a cause of action for paternity under the common law is preserved by the tolling provisions of M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1), it must be assumed that appropriate damages can be sought, which in a paternity action, of course, means support from the time a child was born. As noted in Seegert v. Zietlow, 95 Ohio App. 3d 451, 460, 642 N.E.2d 697 (1994):
Because the parents' duty to support their children generally extends to the child's eighteenth birthday ... it would be illogical to extend the statute of limitations beyond the child's majority if the legislature contemplated that only current support be awarded in a paternity action. After a child has reached the age of majority, the putative parent would generally no longer have any duty to support that child. Thus, by extending the statute of limitations beyond the age of majority, when the parent no longer has any duty of support, it appears the legislature envisioned that back child support would be awarded in a parentage action.
We find the Seegert court's reasoning persuasive and applicable. Here, if the Legislature had not envisioned the award of back child support in a paternity action, it would have made no sense to extend the statute of limitations.
As the Seegert court further noted, id., and as this state also recognized in Whybra v. Gustafson, 365 Mich. 396, 400, 112 N.W.2d 503 (1961), and Spada, supra at 206-207, 385 N.W.2d 746, any rule prohibiting back child support in a paternity proceeding, thereby denying illegitimate children support after a paternity adjudication while allowing back child support in other proceedings, would appear to violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 1, § 2 of the Michigan Constitution. Moreover, as previously noted, the Spada Court concluded that the general disability tolling provisions apply. Further, in Dep't of Social Services v. Brewer, 180 Mich.App. 82, 446 N.W.2d 593 (1989), this Court held that the Family Support Act, M.C.L. § 552.451 et seq.; M.S.A. § 25.222(1) et seq., the provisions of which closely parallel M.C.L. § 722.3; M.S.A. § 25.244(3), authorizes the award of retroactive support commencing before the filing of the complaint. Accordingly we conclude that the trial court in the instant case erred in concluding that, as a matter of law, support is restricted to the period commencing with the filing of the complaint. While the court referred to the circumstances of the case, indicating it used its discretion, the complete colloquy indicates the court viewed the matter as a legal question regarding which there was no precedent. We remand for reconsideration of the issue *858 of retroactive support for the period from plaintiff's birth to the filing of her complaint. In reconsidering the issue, the court may consider any appropriate friend of the court support guidelines in effect for the relevant years, but may also consider the unique circumstances of this case.
IV
Finally, plaintiff on cross appeal contends that the trial court erred in denying her an award of attorney fees under M.C.L. § 600.2591; M.S.A. § 27A.2591 and MCR 2.313(C). We review under a clearly erroneous standard a trial court's finding with regard to whether attorney fees should be awarded because a frivolous defense was presented. State Farm Fire & Casualty Co. v. Johnson, 187 Mich.App. 264, 268-269, 466 N.W.2d 287 (1991). We review under an abuse of discretion standard a court's decision to award sanctions against a party for denying a request to admit that which is proved at trial. Richardson v. Ryder Truck Rental, Inc., 213 Mich.App. 447, 456-458, 540 N.W.2d 696 (1995).
Plaintiff asserts that defendant's defense was frivolous in two ways: (1) at trial defendant presented no evidence to rebut plaintiff's introduction of blood test results indicating a 99.98 percent likelihood that defendant was plaintiff's father; and (2) before trial, faced with the blood test results, defendant refused to affirmatively answer a request for admission that he was plaintiff's biological father. Plaintiff overlooks the fact that throughout the trial and on appeal, defendant argued that plaintiff could not bring this action against him under either the Paternity Act or a common-law theory, or, in the alternative, that the action was barred by res judicata, presenting applicable case law to support his position. Therefore, defendant's defenses cannot be said to be devoid of arguable legal merit because defendant offered reasonable bases for his belief that he could prevail in the matter. Therefore, the trial court did not err in denying plaintiff attorney fees under M.C.L. § 600.2591; M.S.A. § 27A.2591.
Plaintiff also asserted that she was entitled to sanctions pursuant to MCR 2.313(C), which states in relevant part:
Expenses on Failure to Admit. If a party denies the genuineness of a document, or the truth of the matter as requested under MCR 2.312, and if the party requesting the admission later proves the genuineness of the document or the truth of the matter, the requesting party may move for an order requiring the other party to pay the expenses incurred in making that proof, including attorney fees. The Court shall enter the order unless it finds that
* * * * * *
(3) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or
(4) there was other good reason for the failure to admit. [Emphasis added.]
Here, the lower court record reflects that a January 3, 1995, report from the National Legal Laboratories, Inc., sent to defendant's counsel calculated defendant's "probability of paternity" at 99.98 percent. On March 9, 1995, plaintiff submitted the following request for admission to defendant: "(1) Do you admit or deny that you are the biological father of plaintiff, Darcel Phinisee?" to which defendant answered "deny as untrue." In a judgment dated October 12, 1995, entered after a jury trial held on this matter, the court set forth the jury's finding that "Defendant, Eugene J. Rogers, is the biological father of plaintiff, Darcel Phinisee."
In view of the laboratory report setting forth the overwhelming probability that defendant is plaintiff's father, certainly defendant had no reasonable ground to believe that he might prevail on that matter. For similar reasons, defendant simply could assert no good reason for failing to admit that fact. Defendant could have defended on the legal issue and conceded the factual issue, thereby averting what proved to be a clearly unwarranted trial. Consequently, we find that the trial court abused its discretion in failing to award sanctions pursuant to MCR 2.313(C) for defendant's refusal to admit a fact proved at trial.[7]
*859 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
JANSEN, J., concurred.
WHITE, Judge (concurring).
I concur in the conclusion that case law establishes that plaintiff is not bound by the prior litigation involving her mother and defendant.
I also agree that under Spada v. Pauley, 149 Mich.App. 196, 385 N.W.2d 746 (1986), plaintiff has a common-law equitable action to enforce her right to support coextensive with the rights of a legitimate child as set forth in M.C.L. § 722.3; M.S.A. § 25.244(3), subject to the general disability tolling provision, M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1).
With regard to the question of retroactivity, I agree that the trial court erred in concluding that, as a matter of law, support is restricted to the period commencing with the filing of the complaint. I would reach this conclusion on the basis that M.C.L. § 722.3; M.S.A. § 25.244(3) is silent with regard to the question of retroactive support and the Spada Court concluded that the general disability tolling provisions apply. Further, in Dept. of Social Services v. Brewer, 180 Mich.App. 82, 446 N.W.2d 593 (1989), this Court held that the Family Support Act, M.C.L. § 552.451 et seq.; M.S.A. § 25.222(1) et seq., the provisions of which closely parallel M.C.L. § 722.3; M.S.A. § 25.244(3), authorizes the award of retroactive support commencing before the filing of the complaint.
NOTES
[1] Pursuant to 1996 P.A. 308, M.C.L. § 722.714; M.S.A. § 25.494 was amended effective June 1, 1997, to read as follows:
(1) An action under this act shall be brought in the circuit court by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the family independence agency as provided in this act....
(2) An action is not required to be brought under this act if the child's father acknowledges paternity under the acknowledgment of parentage act....
(3) An action under this act may be commenced during the pregnancy of the child's mother or at any time before the child reaches 18 years of age. For a child who became 18 years of age after August 15, 1984 and before June 2, 1986, an action under this act may be commenced before January 1, 1995....
* * * * * *
(10) If a determination of paternity is made under this act, the court may enter an order of filiation as provided in section 7....
[2] Other jurisdictions with statutes similar to our Paternity Act have held that an illegitimate child has no independent cause of action for paternity or support under the act. See, e.g., Johnson, supra at 189, 421 N.E.2d 124 ("[s]tatutory paternity proceedings under R.C. Chapter 3111 are designed to provide a remedy for the mother, not the child"); GEB v. SRW, supra.
[3] M.C.L. § 600.5851(1); M.S.A. § 27A.5851(1) reads as follows:
Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.
[4] See also anno.: Right of illegitimate child to maintain action to determine paternity, 19 A.L.R. 4th 1082, § 6, and cases cited therein.
[5] The Supreme Court held:
[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.... We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.
[6] JMS, supra, was reversed by the Wisconsin Supreme Court in JMS v. Benson, 98 Wis. 2d 406, 413-415, 297 N.W.2d 18 (1980), but that case was itself subsequently overruled by the same court in In re Paternity of RWL, 116 Wis. 2d 150, 162-163, 341 N.W.2d 682 (1984).
[7] This is not to imply that whenever a putative father is faced with a paternity test yielding a probability of this magnitude, a denial of paternity is a basis for awarding sanctions.