Hackley v. Hackley

Brickley, J.

(concurring). I concur with the result reached in Justice Boyle’s opinion because I agree that the test to be applied is whether the plaintiff father had the "opportunity” to prove paternity in the pre-Lord Mansfield’s Rule action. He had not only the opportunity but also was not precluded from utilizing the same evidence that he wishes to now employ.

I write separately because I am not prepared to accede to the analysis of whether the issue to be relitigated is one of law or fact — also, it is not necessary to my conclusion that the plaintiff cannot prevail.

Additionally, I do not necessarily agree with the policy considerations articulated in Justice Boyle’s opinion.

Levin, J.

The question presented is whether the *600doctrine of res judicata precludes a court from reconsidering and changing, following this Court’s decision in Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), abrogating "Lord Mansfield’s Rule,” a determination in a decree of divorce that the husband was the father of a child conceived during the marriage and a provision requiring him to pay child support. We would hold that reconsideration and change is not precluded.

i

Travis Leroy Hackley filed a complaint for divorce against Lynel Hackley in November, 1971. A pro confesso hearing was held over two and one-half years later on August 15, 1974, and a judgment of divorce was entered on August 26, 1974. The judgment of divorce stated that there were two children of the marriage, Laura Elisa Hackley, born February 1, 1970, and Antoine O’Neal Hackley, born August 1, 1974, fifteen days before the pro confesso hearing and over two and one-half years after the complaint for divorce had been filed.

At the pro confesso hearing, Travis stated that Antoine was not his child. The court responded that he was "not permitted to give testimony along those lines.”

The judgment of divorce directed Travis to pay $30 for the support and maintenance of Antoine and $13.50 for Laura Elisa, for a total of $43.50, each week.

Lynel filed a petition for modification of the judgment of divorce to increase the amount of support in February, 1983. Travis answered in March, 1983, alleging that he is not the father of Antoine, that Antoine was conceived while the proceedings for divorce were pending and the par*601ties were separated, and that Lynel had acknowledged to him on a number of occasions that he is not the father of Antoine. In April, 1983, Travis filed a petition to determine whether he was the father of Antoine and for blood tests that referred to this Court’s decision in Serafin.

In Serafin, this Court reconsidered Lord Mansfield’s Rule1 which barred testimony concerning nonaccess by either a husband or wife, and concluded that the "veil of incompetency imposed upon a husband and wife by the rule” was lifted and either could testify on the issue of legitimacy of a child conceived during the marriage. The Court added that the child would still be protected by a "strong, though rebuttable, presumption of legitimacy” and that "clear and convincing evidence must be given” to rebut the presumption.2

Subsequent decisions of the Court of Appeals have differed on whether Serafin precludes reconsideration or modification of a provision for child support in a decree of divorce entered before Serafin was decided.3

The circuit court in September, 1983, ordered blood tests which indicated quite conclusively that Travis was not Antoine’s father. After the test results were made known, the Court of Appeals granted Antoine’s application for leave to appeal from the order requiring the blood tests, peremptorily vacated that order, and dismissed Travis’ petition for determination of paternity. The Court explained that the concise statement of facts submitted in conjunction with the application stated that Travis was not allowed at the pro confesso hearing on August 15, 1974, to present testimony *602that he was not the father of Antoine. "No appeal having been taken from that ruling, res judicata applies and therefore bars plaintiff’s petition of April 1, 1983, for determination of paternity.” Hlady v Wolverine Bolt Co, 393 Mich 368, 380; 224 NW2d 856 (1975).

Following receipt of the order of the Court of Appeals, the circuit court increased the total support for both minor children to $108 per week, retroactive to February 11, 1983.

This Court granted leave to appeal from the order of the Court of Appeals dismissing the petition for determination of paternity. Travis’ separate appeal from the circuit court order increasing the child support is pending in the Court of Appeals.

ii

In Hlady, this Court ruled that a worker who had received specific loss benefits for amputation of four fingers, and who this Court had ruled had not suffered the loss of the industrial use of her hand, could not, eighteen years later, after a change by judicial decision in the construction of the statute, apply for general disability benefits. In so ruling, this Court said that Hlady could not "concede an issue, necessarily determinative of and included in the judgment of this Court, and then, after another has successfully raised the issue she did not wish to contest, ask the Court again for relief. The doctrine of res judicata bars this from happening.”4 The Court added that apart from the doctrine of res judicata the one-year-back rule of the workers’ compensation act barred an award of further benefits to Hlady.

*603Travis did not concede the issue of paternity. He sought to offer testimony on that issue at the pro confesso hearing, but the court refused to allow him to do so. While his failure to appeal made the decree final and, under the general rule of issue preclusion, the determination of paternity was "conclusive in a subsequent action between the parties,”5 he had not conceded the issue.6

The general rule of issue preclusion is subject to exceptions as was recognized by this Court in Socialist Workers Party v Secretary of State, 412 Mich 571, 584; 317 NW2d 1 (1982). There, this Court held that, although the Socialist Workers Party had unsuccessfully challenged in the federal court the constitutionality of a Michigan statute which denied it access to the ballot, because of a subsequent decision of the United States Supreme Court changing the applicable legal context for decision, relitigation of the constitutionality of the statute was not precluded. In so holding, the Court *604adopted the following text and explanation from the Restatement of Judgments:

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(b) The issue is one of law and . . . (ii) a new determination is .warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws . . . .[7]
A rule of law declared in an action between two parties should not be binding on them for all time, especially as to claims arising after the first proceeding has been concluded, when other litigants are free to urge that the rule should be rejected. Such, preclusion might unduly delay needed changes in the law and might deprive a litigant of a right that the court was prepared to recognize for other litigants in the same position.[8]

The Court referred to its decision in Young v Detroit City Clerk, 389 Mich 333, 338; 207 NW2d 126 (1973), where the Court had similarly relied on this language in the Restatement in holding that Coleman A. Young was not precluded from running for the office of Mayor of the City of Detroit in 1973 by an earlier decision of this Court that had prevented him from funning for mayor in 1969.

The general rule of issue preclusion does not apply, without regard to whether the issue is one *605of law or fact, where, as set forth in the Restatement of Judgments, the party sought to be precluded, as a result of "special circumstances, did not have an adequate opportunity” "to obtain a full and fair adjudication in the instant action”:

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(5) There is a clear and convincing need for a new determination of the issue . . . (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.[9]

Illustration 11 to the Restatement states that in a case where the law is changed to reduce the burden of persuasion on the issue of fraud from "clear and convincing” to a "preponderance of the” evidence, an adverse determination on the factual defense of fraud in an action on a "series of notes” governed by the higher standard, would not preclude relitigation of the fraud issue, after the change in the burden of persuasion, in an action "on another note in the series”:

A brings an action against B to recover on a promissory note. B defends on the ground that he was induced by A’s fraud to give this and other notes in the series, but fails to establish fraud by * clear and convincing evidence as required by law. After judgment for A, the law is changed to provide that in such cases fraud need be proved only *606by a preponderance of the evidence. In an action by A on another note in the series, B is not precluded from asserting the defense of fraud. [Restatement Judgments, 2d, § 28, p 282.][10]

What emerges is that where there has been a change of law ("an intervening change in the applicable legal context”), and the party sought to be precluded was deprived by the former rule of "an adequate opportunity” "to obtain a full and fair adjudication in the initial action,” he is not precluded, in a later action respecting a subsequent time period, by the former adjudication.

hi

A child support order operates prospectively. It is subject to modification because of changes in circumstances. In the instant case, Lynel sought an increase in child support, and a change has been ordered by the circuit court increasing the amount of child support. As stated in Socialist Workers Party and Young, a change in law as well as a change in fact may justify reconsideration of a prior adjudication claimed to have continuing operative effect and to govern rights in respect to periods of time commencing after the adjudication.11

The predicate of both the provision for child *607support in the decree of divorce and of the October, 1984, order of the circuit court modifying and increasing the amount of child support is that Travis is the father of Antoine. Travis was, before entry of the decree of divorce, prevented by Lord Mansfield’s Rule from offering either his or Lynel’s testimony that he was not Antoine’s father. Subsequently Lord Mansfield’s Rule was abrogated in Serafin.

On the same principle that the Socialist Workers Party and Coleman A. Young were not precluded by a prior adverse adjudication from relitigating in respect to another election the question whether they were entitled to a place on the ballot, Travis is not precluded by a prior adverse adjudication that had barred him from offering testimony of nonaccess and requiring him to pay child support from relitigating his obligation to pay child support for time periods subsequent to the filing of the petition to determine whether he was Antoine’s father.

*608IV

In the instant case, the circuit court increased the child support allowance for Antoine, presumably because of a change in circumstances. To hold that the increased needs of Antoine or increased means of Travis constitute a change in circumstances that may justify a change in the prior determination or judgment but that a change in the rule of law known as Lord Mansfield’s Rule does not constitute a change in circumstances that may justify a change in the prior determination or judgment would be to announce an empty distinction. Where a court’s order operates prospectively, revision of the order may, in light of a change in law as well as a change in fact, be justified.

The Supreme Court of North Carolina ruled that where the law had been changed to allow the use of blood grouping tests to prove paternity as well as to disprove it and to allow both plaintiff’s mother and presumed father to testify as to paternity, a prior determination adverse to the child did not preclude relitigation of the question in a different action in behalf of the child. Settle v Beasley, 309 NC 616; 308 SE2d 288 (1983). The Supreme Court of Pennsylvania ruled, forty-five years after it was decided that an adopted child was not a child or issue, that the question could be relitigated, after the death of the life tenant, where there had been a change in law regarding the status of adopted persons as children or issue, Estate of DeRoy, 481 Pa 403; 392 A2d 1355 (1978). See also In re Biddle Estate, 487 Pa 616; 410 A2d 782 (1980).

Travis is not seeking another opportunity to relitigate before another factfinder a question that he had an adequate opportunity to litigate; because of Lord Mansfield’s Rule, Travis had no *609opportunity on the initial determination to put in evidence his own or Lynel’s testimony concerning access, and as a result there was no assessment by the judge or other factfinder of the merits. Nor is Travis seeking to recover amounts paid pursuant to the former adjudication, or to obtain cancellation of amounts that were required to be paid before he filed, after Serafin was decided, a petition for determination whether he was the father. He seeks as to future time periods only, revision in light of a change in circumstances, the "intervening change in the applicable legal context.” Thus he seeks what was granted Lynel and Antoine when the child support allowance was revised as to future time periods in light of a change in circumstances.

Finality in litigation is a virtue, but there is no finality when a court order operates prospectively and is, by its implied in law terms, subject to change.

Income maintenance awards, whether for child support or pursuant to a social welfare program, are necessarily subject to change in light of a change in law or fact.12

The continued enforcement of an income maintenance award after the factual or legal justification therefor has plainly vanished cannot be justified on the basis of "financial”13 or psychic14 needs *610of the claimant (or even preservation of her mother’s "resources”15) or the avoidance of "unfairness”16 or "chaos and humiliation.”17

In sum, the general principle of issue preclusion does not preclude reconsideration of a former determination or judgment that operates prospectively where there has been a change in circumstances (law or fact) justifying reconsideration of the future operative effect of the former determination or judgment.

.v

We have considered the claim that Antoine would be adversely affected because permitting the question to be reopened might result in a determination that Antoine was not a legitimate child of the marriage. Travis, however, has steadfastly maintained he is not the father, and has refused to exercise his right of visitation with Antoine although he has regularly exercised that right with respect to the older child. Antoine, now fourteen years old, thus knows as well as Lynel that Travis is not her father. The blood tests are known, and it appears that the true father may have maintained some continuing relationship with Lynel and her children. It is questionable whether requiring Travis to continue to pay child support would do more than preserve a facade of legitimacy.

I am not aware that "paternity determinations” are a more "highly emotion-charged area”18 than countless other litigation battlegrounds. What is at stake here is money, not Antoine’s paternity._

*611A recently enacted law permits paternity proceedings to be instituted at any time before a child reaches eighteen years of age.19

The "best interests of [the] child,”20 "potential for embarrassment and humiliation that a determination of paternity may have on the delicate psyche of a child”21 and preservation of "the legitimacy of children”22 arguments are reminiscent of the defense of Lord Mansfield’s Rule, which I had thought this Court rejected in Serafin.

VI

We would hold that the doctrine of res judicata does not bar a husband from seeking the elimination of child support payments that otherwise would become due under a decree of divorce for time periods subsequent to filing a petition seeking modification on the basis that he was not the father, where as here he maintained before entry of the decree of divorce that he was not the father and was prevented by reason of Lord Mansfield’s Rule from offering testimony of nonaccess.

We would reverse and remand to the circuit court for further proceedings consistent with this opinion.

Williams, C.J., and Archer, J., concurred with Levin, J.

Goodright v Moss, 2 Cowp 591; 98 Eng Rep 1257 (1777).

Serafin, supra at 635-636.

See Thompson v Thompson, 112 Mich App 116; 315 NW2d 555 (1982); Stewart v Stewart, 91 Mich App 602; 283 NW2d 809 (1979).

Hlady, supra at 380.

Restatement Judgments, 2d, § 27, p 250.

We agree with the opinion for affirmance, ante, p 586, that Travis’ failure to concede the issue of paternity is not determinative of whether the circuit court may reconsider and change the provisions of the divorce decree that Travis was the father and requiring him to pay child support.

This Court in Hlady, supra at 380, said, however, that Hlady could not "concede an issue, necessarily determinative of and included in the judgment of this Court, and then, after another has successfully raised the issue she did not wish to contest, ask the Court again for relief.” (Emphasis supplied.) Whether or not, as stated in the opinion for affirmance, "Hlady’s earlier concession of the issue was not the basis for precluding relitigation of the issue in that case,” ante, p 587, Hlady made a point out of Hlady’s concession of the issue. Because Hlady emphasized Hlady’s concession of the issue, we have noted in the accompanying text that Travis did not concede the issue of paternity. We do not wish to be understood as saying that a person may relitigate an issue that he had an opportunity to contest on the basis that he did not concede the issue.

Travis may seek reconsideration and a change of the determinations in the decree of divorce because of the change in law and the operative effect of the decree of divorce affects payments that would otherwise become due after the change in law, not because he did not concede the issue.

Socialist Workers Party quoted from Restatement Judgments, 2d (Tentative Draft No 1, 1973), § 68.1, pp 170-171, which became Restatement Judgments, 2d, § 28, pp 273-274.

Restatement Judgments, 2d, § 28, comment b, pp 275-276.

Restatement Judgments, 2d, § 28, pp 273-274.

Although not stated, "another note in the series” presumably would be a note that became due after the action on the notes where the defense failed.

The commentary to the Restatement Judgments, 2d, § 28, p 278, explains this exception to the general rule of issue preclusion with the following illustrations:

3. A, a state agency, brings an action against B to revoke B’s wholesale liquor license on the ground that B has violated the law governing the license by selling only to himself as a retailer. The court grants B’s motion to dismiss for failure to state a claim, holding that the conduct charged does not violate the law. In a subsequent action by A against C, a higher court *607holds that identical conduct by C is ground for the revocation of C’s wholesale liquor license. In a second action against B for revocation of B’s license, A is not precluded from asserting that since the first dismissal, B has continued, as before, to sell only to himself as a retailer.
4. A, a non-profit organization, brings an action against B, the tax commissioner, for a refund of property taxes on the ground that it is exempt as a charity. The court gives judgment for B, adopting a narrow definition of the charitable exemption. Shortly after, a higher court of the same jurisdiction grants a property tax refund to C, an organization quite similar to A, and in doing so formulates a much broader definition of the exemption. In a subsequent action by A against B for a refund of property taxes paid for the following year, A is not precluded from asserting that it is entitled to the charitable exemption. It does not matter that the nature of A’s activities has not changed since the first action.

The foregoing illustrations indicate that the exception to the general rule of preclusion applies although the change of law concerns a factual question, the actor’s conduct (Illustration 3), or his status (Illustration 4).

Cf. Franks v White Pine Copper Div, 422 Mich 636, 654, 683; 375 NW2d 715 (1985).

An employer or its insurance carrier should not be required to continue to pay benefits after an intervening decision establishes that an erroneous rule of law was applied in making an award. Like a change in physical condition or status, such a decision should relieve the employer of the further obligation to pay benefits. [Gose v Monroe Auto Equipment Co, 409 Mich 147, 208; 294 NW2d 165 (1980) (Levin, J.).]

Ante, p 598, and n 11.

Id.

id.

Ante, p 590.

Ante, p 599.

Ante, p 589.

(2) Proceedings in pursuance of this act may be instituted during the pregnancy of the mother or at any time before the child reaches 18 years of age. This subsection shall apply regardless of whether the cause of action accrued before June 1, 1986 and regardless of whether the cause of action was barred under this subsection before June 1, 1986. [1986 PA 107, MCL 722.714; MSA 25.494.]

Ante, p 597.

Ante, p 598.

Ante, p 599.