HISAW
v.
HAYES
Docket No. 61438.
Michigan Court of Appeals.
Decided April 16, 1984.Philip J. Olson, II, for plaintiff.
*642 Harry S. Sherwin, for defendant.
Before: BEASLEY, P.J., and ALLEN and G.R. DENEWETH,[*] JJ.
G.R. DENEWETH, J.
In this paternity action, defendant appeals by leave granted from the denial of a rehearing of an order altering his support obligation. Originally, a settlement approved by the circuit court pursuant to MCL 722.713; MSA 25.493 required defendant to pay $1,500 at the rate of $5 per week plus certain statutory fees. The circuit court altered defendant's support obligation to require him to pay $45 per week until the child reached the age of majority.
MCL 722.713; MSA 25.493 provides that a paternity settlement is not binding unless approved by the court, but that such a settlement bars other remedies of the mother and child once approved and performed. Settlements are contracts and are governed by the legal principles applicable to contracts. Mastaw v Naiukow, 105 Mich. App. 25, 28; 306 NW2d 378 (1981). Here, the circuit court held that defendant had failed to perform the settlement and that the settlement was therefore not binding. At the time of the circuit court's decision, defendant had paid only $1,409 of the $1,420 then due. Moreover, defendant could not show that every payment had been made on time, some payments having been made a few days late. Rescission of a contract is permissible only for a substantial or material breach. O'Conner v Bamm, 335 Mich. 438; 56 NW2d 250 (1953); Walker & Co v Harrison, 347 Mich. 630; 81 NW2d 352 (1957). In this case in view of the amounts of child support and the time periods involved, it cannot be said *643 that an arrearage of $11 or the few untimely payments at issue constitute a substantial or material breach.
Neither can the circuit court's actions be justified under other theories. In Van Laar v Rozema, 94 Mich. App. 619; 288 NW2d 667 (1980), the Court approved the modification of a support obligation arising out of a settlement. However, in that case, the settlement agreement contained language permitting modification; therefore, the parties themselves conferred upon the circuit court the power to modify the support obligation. No such language was contained in the settlement agreement here.
The enforceability of a contract depends on consideration. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 600; 292 NW2d 880 (1980). A party rescinding a contract must ordinarily restore the other party to substantially the position the other party occupied before the contract. Mesh v Citrin, 299 Mich. 527, 538; 300 NW2d 870 (1941); Blumrosen v Silver Flame Industries, Inc, 334 Mich. 441, 445-446; 54 NW2d 712 (1952); Grabendike v Adix, 335 Mich. 128, 140-142; 55 NW2d 761 (1952). Here, defendant's answer to plaintiff's complaint denied paternity. Defendant had a right to a judicial determination of the paternity issue pursuant to MCL 722.714; MSA 25.494. Defendant agreed to surrender that right in return for the surrender of any claim by plaintiff and her child for support in excess of the agreed-upon amount. The circuit court could not deprive defendant of the consideration for the settlement, while leaving defendant bound by the settlement.
In Boyles v Brown, 69 Mich. App. 480; 245 NW2d 100 (1976), the Court concluded that a circuit court *644 had the power to modify the level of child support established by settlement in a paternity case. The Court relied in part on MCL 722.720a; MSA 25.500(1), a section which has been repealed. See 1982 PA 296. That statute did not expressly permit courts to modify paternity settlements, but it required the friend of the court to regularly review all paternity cases in which orders of filiation were entered and to recommend modification of support orders where the interests of the children or the public so required. The Court also noted that support orders for legitimate children may be modified even when based on a settlement and expressed concern that a different rule for illegitimate children would amount to denial of equal protection of the law.
In Gomez v Perez, 409 U.S. 535; 93 S. Ct. 872; 35 L. Ed. 2d 56 (1973), the Court held that a statutory scheme which required natural fathers to support their legitimate children but not their illegitimate children amounted to a denial of equal protection. However, equal protection does not require that things different in fact be treated as though they were the same. Tigner v Texas, 310 U.S. 141, 147; 60 S. Ct. 879; 84 L. Ed. 1124 (1940). The difference between a paternity case and a case involving support for legitimate children is the necessity of proving paternity in the former case. Due process requires that a litigant be afforded a fair trial of the issues involved in the controversy and a determination of disputed questions of fact on the basis of evidence. Dation v Ford Motor Co, 314 Mich. 152, 167; 22 NW2d 252 (1946). The right of an illegitimate child to equal protection of law does not justify depriving the alleged father of the right to a trial of a disputed question of paternity. We decline to follow Boyles, supra, to the extent that, in a paternity settlement like that at issue here, it would permit a court to increase an alleged father's *645 support obligation, albeit leaving him bound by his agreement to surrender his right to a judicial determination of paternity. Such a settlement cannot be modified, the only judicial remedy being rescission.
A specific statute prevails over a general statute dealing with the same subject. See, for example, Imlay Twp Primary School Dist No 5 v State Bd of Ed, 359 Mich. 478, 485; 102 NW2d 720 (1960). The Boyles Court interpreted MCL 722.720a; MSA 28.500(1) as creating a general power to modify support obligations in paternity cases. More specific statutes, however, set the limits of that power. MCL 722.720; MSA 25.500 gives the circuit court continuing jurisdiction over support and custody, but only until its judgment has been completely satisfied. MCL 722.713; MSA 25.493 specifies that a settlement bars other remedies of the mother and child once approved and performed.
Here, although we have held that defendant did not commit a substantial or material breach of the settlement agreement, the agreement was not completely performed at the time of the circuit court's order, because the time for complete performance had not yet arrived. As plaintiff points out, the record does not show that in considering the paternity settlement the circuit court ever found that the settlement made adequate provision for the support and education of the child. See Tuer v Niedoliwka, 92 Mich. App. 694, 700; 285 NW2d 424 (1979). It was therefore not too late for a rescission of the settlement, allowing the defendant to litigate the paternity question. But that was not what the circuit court did. The circuit court erred by modifying the settlement to increase defendant's support obligation.
Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.