Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 26, 2006
MICHAEL J. BARNES, JR.,
Plaintiff-Appellee,
v No. 129606
KIM KRISTINE JEUDEVINE,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
WEAVER, J.
Plaintiff filed this action seeking a determination of paternity for a child
conceived while the child’s mother was married to another man. Plaintiff alleges
that the child was not an issue of the marriage, because he is the child’s biological
father. The question presented is whether plaintiff has standing under the
Paternity Act, MCL 722.711 et seq., to seek a determination of paternity. To
resolve this question in this case, we must decide whether a default judgment of
divorce that states it appears that “no children were born of this marriage and none
are expected” is a sufficient judicial determination that the subject child was not
the issue of the marriage.
We reverse the judgment of the Court of Appeals and hold that plaintiff
does not have standing under the Paternity Act because the default judgment is not
clear and convincing evidence that the child was not an issue of the marriage. We
remand this case to the circuit court for the entry of an order of summary
disposition for the defendant.
I
Defendant-appellant Kim K. Jeudevine married James V. Charles III on
July 11, 1996. Sometime before Charles filed for divorce and before defendant
was served with the divorce complaint on August 12, 1998, defendant learned that
she was pregnant. Defendant did not inform her husband that she was pregnant.
Plaintiff Michael J. Barnes, Jr., alleges that he is the child’s biological father.
Defendant did not respond to the complaint for divorce and did not appear
at the divorce hearing. A default judgment of divorce was entered on November
2, 1998. The default judgment provides:
[I]t satisfactorily appears to this Court that there has been a
breakdown in the marriage relationship to the extent that the objects
of matrimony have been destroyed, and there remains no reasonable
likelihood that the marriage can be preserved; it further appearing
that no children were born of this marriage and none are expected.
On February 26, 1999, four months after the divorce was final, defendant
gave birth. A birth certificate identifies plaintiff as the child’s father and an
affidavit of parentage signed by plaintiff and defendant the day after the child’s
2
birth states that plaintiff is the father.1 Plaintiff and defendant lived together and
raised the child for over four years, until the summer of 2003, when plaintiff and
defendant ended their relationship. Defendant has not allowed plaintiff to see the
child since they stopped living together.
On September 30, 2003, plaintiff filed a paternity action against defendant,
alleging that he was the father of defendant’s child. To support his contention,
plaintiff cites the judgment of divorce between Charles and defendant that states
“that no children were born of this marriage and none are expected.” Plaintiff also
cites the affidavit of parentage and the birth certificate identifying plaintiff as the
father of the child.
Defendant answered plaintiff’s paternity action on October 22, 2003. She
neither admitted nor denied plaintiff’s claimed paternity. However, defendant
denied that the child was born “out of wedlock,” because the child had been
conceived while she was legally married to Charles. Defendant admitted signing
the affidavit of parentage and the birth certificate, but claimed that she did so
under duress.
On November 10, 2003, a hearing was held in the Family Division of the
Kalamazoo Circuit Court. The court granted defendant’s motion for summary
1
The affidavit of parentage states that by signing the document, the mother
of the child admits that “she was not married when this child was born or
conceived; or that this child, though born or conceived during a marriage, is not an
issue of that marriage as determined by a court of law.”
3
disposition, concluding that plaintiff did not have standing to sue under the
Paternity Act. The court found (1) that the child was conceived during the
marriage and (2) that there was no court determination that the child was a child
born or conceived during the marriage but is not the issue of that marriage.
Plaintiff appealed, and the Court of Appeals reversed the order of the circuit
court and remanded the matter to the circuit court for the reinstatement of
plaintiff’s claim.2 The Court of Appeals held that the statement in the default
judgment of divorce that “no children were born of this marriage and none are
expected” was a determination by a court that the child was not an issue of the
marriage. Therefore, the Court of Appeals held that plaintiff had standing to sue
under the Paternity Act.
Defendant sought leave to appeal in this Court, and we ordered the clerk to
schedule oral argument pursuant to MCR 7.302(G)(1) to determine whether to
grant the defendant’s application.3 We asked the parties to include among the
issues to be addressed:
(1) [W]hether plaintiff lacked standing to proceed under the
Paternity Act, MCL 722.711 et seq., where the subject child’s
mother was married at the time of the child’s conception, see Girard
v Wagenmaker, 437 Mich 231 (1991); and (2) whether the default
judgment of divorce amounted to a judicial determination that the
child was born or conceived during the marriage but was not the
issue of the marriage.
2
Unpublished opinion per curiam, issued August 23, 2005 (Docket No.
252840).
3
474 Mich 1056 (2006).
4
II
We review a trial court’s decision to grant summary disposition de novo.
Wilson v Alpena Co Rd Comm, 474 Mich 161; 713 NW2d 717 (2006). Whether
plaintiff has standing to bring a paternity action is a question of law that we also
review de novo. In re KH, 469 Mich 621; 677 NW2d 800 (2004).
III
The Paternity Act, MCL 722.711 et seq., confers on the circuit court
jurisdiction over proceedings involving the determination of a child’s paternity.
One purpose of the act relevant to this case is to assure, for the sake of the child,
that the child’s legitimacy will not be decided by mere casual inference, but only
after specific statutory procedures are followed. To this end, the act provides that
a mother, a father, or in certain circumstances, the Department of Human Services,
may bring an action in circuit court to establish paternity of a child, if that child is
alleged to have been “born out of wedlock.” MCL 722.714.
The Paternity Act defines “[c]hild born out of wedlock” as
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 that the court
has determined to be a child born or conceived during a marriage but
not the issue of that marriage. [ MCL 722.711(a).]
Thus, to establish that the child was born out of wedlock, plaintiff must prove that
either (1) the child was not born or conceived during the mother’s marriage, or (2)
though the child was born or conceived during a marriage, a court has determined
that the child was not the issue of the marriage.
5
Plaintiff filed this action alleging that he is the biological father of the
defendant’s child. However, it is undisputed that defendant was married to
another man when the child was conceived. Plaintiff gave birth just four months
after her divorce was final. Therefore, to have standing to seek a determination of
paternity, it is necessary for plaintiff to establish that a court “has determined” that
there was a child born or conceived during the marriage and that the child was not
an issue of the marriage. We recently reemphasized that “[t]he presumption that
children born or conceived during a marriage are the issue of that marriage is
deeply rooted in our statutes and case law.” In re KH, supra at 634. The
presumption of legitimacy can be overcome only by a showing of clear and
convincing evidence. Id. at 634 & n 24.
In Girard v Wagenmaker, supra at 243, this Court held that in order for a
biological father to establish standing under the Paternity Act, there must be a
“prior court determination that a child is born out of wedlock.” The requirement
that there be a prior court determination is consistent with the language of the
statute, MCL 722.711(a). As analyzed in Girard, supra at 242 (citations omitted):
“[H]as determined” is the present perfect tense of the verb
“determine.” The present perfect tense generally “indicates action
that was started in the past and has recently been completed or is
continuing up to the present time,” or shows “that a current action is
logically subsequent to a previous recent action.”
Girard noted that requiring a prior determination that a child is not an issue of a
marriage comports with Michigan’s longstanding presumption that children born
6
or conceived during a marriage are legitimate issue of the marriage. Girard, supra
at 246 (citing Serafin v Serafin, 401 Mich 629, 636; 258 NW2d 461 [1977]).
In this case, the question is whether the circuit court’s statement in the
judgment of divorce that there appeared to be no children born of or expected from
the marriage was a court determination of sufficient specificity to lead to the
conclusion that this child was not an issue of the marriage. Plaintiff asserts that
this statement in the judgment of divorce qualifies as a court determination that the
child was born out of wedlock and is not an issue of the marriage. We disagree.
A “determination” is that which sets the limits to or the bounds of something.
Webster’s New World Dictionary (3d ed), p 375. In its legal sense, a
“determination” is that which “implies an ending or finality of a controversy or
suit.” Black’s Law Dictionary (6th ed), p 450. To overcome the strong
presumption of the legitimacy of a child born or conceived during a marriage, a
court determination must settle with finality a controversy regarding the child’s
legitimacy.
This Court held as much in Girard, supra at 243, by concluding that where
there was “[n]o previous action . . . undertaken to determine the child’s paternity
[and] no ongoing actions . . . to determine the child’s paternity,” there was no prior
court determination that a child was not the issue of a marriage. Because there had
been no previous action to determine that the child was born out of wedlock,
Girard held that a putative father did not have standing to seek paternity under the
Paternity Act. Similarly, we stated in In re KH:
7
By requiring a previous determination that a child is born out
of wedlock, the Legislature has essentially limited the scope of
parties who can rebut the presumption of legitimacy to those capable
of addressing the issue in a prior proceeding—the mother and the
legal father . . . . If the mother or legal father does not rebut the
presumption of legitimacy, the presumption remains intact, and the
child is conclusively considered to be the issue of the marriage
despite lacking a biological relationship with the father. [In re KH,
supra at 635.]
Consistent with Girard and In re KH, we hold that a court determination under
MCL 722.711(a) that a child is not “the issue of the marriage” requires that there
be an affirmative finding regarding the child’s paternity in a prior legal proceeding
that settled the controversy between the mother and the legal father.
In this case, the dissents assert that the legal findings necessary to meet the
“prior adjudication” requirement for a paternity suit are established by the default
judgment. The Court of Appeals correctly recognized that “[a] default judgment is
just as conclusive an adjudication and as binding upon the parties of whatever is
essential to support the judgment as one which has been rendered following
answer and contest.” Perry & Derrick Co, Inc v King, 24 Mich App 616, 620; 180
NW2d 483 (1970). However, we disagree with the Court of Appeals conclusion
and the dissents’ assertion that the judgment of divorce in this case constitutes a
“court determination” that the child was not an issue of the marriage under MCL
722.711(a). The holding in the default judgment that there were no children of the
marriage simply does not address the similar but distinct question whether there
was a child born or conceived during the marriage, and whether it was the issue of
the marriage.
8
In short, there have been no legal actions addressing the subject child’s
paternity. The circuit court stated in the judgment of divorce merely that it
appeared no children were born or expected of the marriage. The court’s
statement does not support a conclusion that “the court has determined [the child]
to be a child born or conceived during a marriage but not the issue of the
marriage.” MCL 722.711(a). This conclusion is underscored by the requirement
that a court find clear and convincing evidence that a child is not the issue of a
marriage to overcome the presumed legitimacy of a child born or conceived during
a marriage. In re KH, supra at 634 n 24. The circuit court did not make a finding
that there was a child born or conceived during the marriage that was not an issue
of the marriage. It, therefore, cannot be reasonably asserted that there was clear
and convincing evidence of such a finding. For these reasons also, the court’s
statement that it appeared that no children were born or expected of the marriage is
not a sufficient court determination that there was a child conceived during the
marriage that was not an issue of the marriage.
Plaintiff also argues that the affidavit of parentage and the birth certificate
assist him in his claim. Plaintiff argues that even if the judgment alone is
insufficient, he should prevail because of the admissions inherent in these
documents. We disagree. It was acknowledged in the affidavit of parentage and
in the birth certificate that plaintiff was the biological father of the child. Yet,
despite these documents, the child is still presumed to be a legitimate issue of the
marriage. An affidavit of parentage is a stipulation by a woman of a man’s
9
paternity under the Acknowledgment of Parentage Act, MCL 722.1001 et seq.
This is not a court determination that the child was born out of wedlock, as is
required under either the Paternity Act or the Acknowledgment of Parentage Act.
Both acts provide that a child is born out of wedlock only when (1) the woman
was not married at the time of the conception and birth, or (2) a court previously
determined that the child was not an issue of the marriage. Further, a birth
certificate is also not a court determination that the child was not an issue of the
marriage. For these reasons, the affidavit of parentage and the birth certificate do
not rebut the presumption that the child was an issue of defendant’s marriage to
Charles. Charles is and remains the child’s legal father, and it is incorrect to
suggest our decision leaves this child without a father.
In this case, the subject child is presumed to be the issue of the marriage
because the child was conceived during the marriage. The presumption remains
until rebutted by clear and convincing evidence to the contrary. Consequently, the
party wishing to overcome the presumption must present evidence that the child,
despite the date of its conception, is not the issue of the marriage and a court must
so hold. The circuit court’s statement in the judgment of divorce that it appeared
that there would be no children does not rebut that presumption. Further, the legal
father, Charles, never renounced the presumption of legitimacy. Because the child
was not conceived outside of marriage, and because there is no prior court
determination that the child is not an issue of the marriage, we hold that plaintiff
does not have standing under the Paternity Act.
10
For these reasons, we reverse the judgment of the Court of Appeals and
remand to the circuit court for entry of an order of summary disposition for
defendant.
Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
11
STATE OF MICHIGAN
SUPREME COURT
MICHAEL J. BARNES, JR.,
Plaintiff-Appellee,
v No. 129606
KIM KRISTINE JEUDEVINE,
Defendant-Appellant.
KELLY, J. (dissenting).
I would deny leave to appeal in this case. I believe that plaintiff has
standing to pursue his action under the Paternity Act, MCL 722.711 et seq. The
Court of Appeals did not err in finding that defendant’s default judgment of
divorce contains a legally sufficient judicial determination that the child in
question is not the issue of defendant’s marriage.
THE UNDERLYING FACTS
Plaintiff had a sexual relationship with defendant while she was separated
from her husband. It appears that she was four months pregnant with plaintiff’s
child when her husband, who did not know she was pregnant, was granted a
default judgment of divorce. In it, the court stated, “it further appearing that no
children were born of this marriage and none are expected . . . .”
This statement from the judgment appears to be accurate. Plaintiff and
defendant signed an affidavit of parentage agreeing that plaintiff was the child’s
natural father. He was shown to be the father on the child’s birth certificate.
Plaintiff, defendant, and the child lived together as a family for nearly 4 1/2 years
before the parties separated. The child has always believed that plaintiff is his
father.
Plaintiff filed this claim for recognition of his paternity so he could
continue fathering the child. In response, defendant neither admitted nor denied
that plaintiff is the boy’s father. Instead, she argued that plaintiff lacks standing to
bring a paternity claim under applicable case law. Girard v Wagenmaker, 437
Mich 231; 470 NW2d 372 (1991); Aichele v Hodge, 259 Mich App 146; 673
NW2d 452 (2003); Kaiser v Schreiber, 469 Mich 944 (2003). The circuit court
agreed with her. Plaintiff appealed.
The Court of Appeals reversed the circuit court decision. It concluded that
the language in the divorce judgment that there were no children “born of this
marriage and none are expected” was a judicial determination that the defendant’s
former husband is not the child’s legal father. The majority rejects this
conclusion, observing that a child’s legitimacy should not be “decided by mere
casual inferences . . . .” Ante at 5.
THE MAJORITY’S ERROR
This is not a case of mere casual inferences. Defendant was personally
served with the complaint for divorce that affirmatively alleged that she was not
pregnant. She did not answer the complaint. Nor did she contest entry of the
default judgment of divorce. Had she done so, her son’s paternity could have
2
been, and presumably would have been, thoroughly litigated and scientifically
determined. Her former husband’s testimony under oath that he and defendant
had no children and expected none provided legally sufficient support for the
court’s determination that “no children were born of this marriage and none are
expected.” In its ruling today, this Court rewards defendant for her refusal to
reveal the fact of her pregnancy and the identity of her child’s father while the
divorce was pending.
Courts speak through their orders and judgments.1 Default judgments are
not lesser judgments by any means. Like other judgments, a default judgment of
divorce operates as final statement of fact and law to the world.
In the matter that is before us, the paternity action, the majority appears to
go behind the divorce judgment to nullify one of its findings. The finding is that
defendant’s husband did not father any of defendant’s children. The majority does
this despite the fact that the finality of the judgment is central to the orderly
administration of justice. Plaintiff, like any other nonparty to a judgment, is
entitled to rely on the judgment’s recitation of facts and on the finality of its
rulings.
1
MCL 600.2106 provides, “A . . . judgment . . . of any court of record in
this state . . . shall be prima facie evidence of . . . all facts recited therein . . . .”
The default judgment of divorce at issue here resolved the fact that Charles did not
father any children with defendant. Until and unless it is reopened and amended,
it is res judicata with respect to the findings therein.
3
The judgment in this case says that no children were born of the marriage.
It follows that defendant’s son is not an issue of defendant’s marriage. It happens
that the judge did not know that defendant became pregnant during the marriage.
However, the judge’s ruling that no children were born of the marriage is likely
correct. There is no evidence, and no one is asserting, that defendant’s son is an
issue of the marriage. There is strong evidence that plaintiff is his biological
father. In short, there is nothing to support a finding that the divorce judge’s
statement regarding the issue of the marriage was not accurate.
Under the circumstances of this case, the Court of Appeals panel was
correct to reverse the judgment of the circuit court and remand the case for
reinstatement of plaintiff’s claim. Plaintiff properly relies on the default judgment
of divorce to assert his standing to bring this paternity action. He should have the
opportunity to assert his paternity. The availability of blood and DNA
(deoxyribonucleic acid) testing makes a determination on the question relatively
easy and accurate.
In this case, the majority again evidences a rigid adherence to wooden
strictures such as the presumption of legitimacy even where, as here, the purposes
of the presumption are not served. The majority has exhibited a consistent pattern
of ruling against putative fathers who seek to exercise their due process rights with
4
respect to children they claim as their own.2 Once again, the majority relies on the
presumption of legitimacy despite strong evidence that the fact presumed to be
true is false. In finding that defendant’s former husband is the child’s legal father,
the Court is throwing into question part of the findings of the divorce judgment
even though (1) the presumption of legitimacy has never been tested, and (2) the
findings in the judgment are prima facie evidence that the child in question is not
an issue of the marriage.
A presumption is a procedural device. Widmayer v Leonard, 422 Mich
280, 286; 373 NW2d 538 (1985). It operates during a legal proceeding. A
rebuttable presumption is subject to being overcome, in the case of the
presumption of legitimacy, by clear and convincing evidence. Unless the divorce
proceeding is reopened and the judgment amended under circumstances where
both parties have notice and the opportunity to respond, the judgment’s current
findings are the dominant legal facts. And plaintiff can properly rely on them to
assert his standing to pursue his paternity action.
2
Recent cases in which the majority has denied standing or refused to
consider granting standing to putative biological fathers for the avowed purpose of
protecting the presumption are: McNamara v Farmer, 474 Mich 877 (2005);
Numerick v Krull, 265 Mich App 232 (2005), lv den 474 Mich 877 (2005); In re
KH, 469 Mich 621 (2004); Aichele v Hodge, 259 Mich App 146 (2003), lv den
469 Mich 994 (2004); Kaiser v Schreiber, 469 Mich 944 (2003); Pniewski v
Morlock, unpublished opinion per curiam of the Court of Appeals (June 5, 2003),
Docket No. 238767, lv den 469 Mich 904 (2003); In re CAW, 469 Mich 192
(2003).
5
Surely, the presumption of legitimacy was not created to render children
fatherless. Yet, that is precisely what the majority’s application of it does in this
case. As a practical matter, defendant’s former husband will almost certainly
never provide financial support for defendant’s son. I am uncertain that the
majority’s statement that he is the child’s legal father is correct. It is not clear
what status the presumption of legitimacy has in light of the findings of the
divorce judgment.
What is clear is that, as a practical matter, the child can expect to have no
father in defendant’s former husband. In the unlikely event that defendant should
ever try to assert that her former spouse is the child’s legal father, the
consequences are predictable. If defendant sought to and succeeded in reopening
the divorce proceedings to obtain support for the child from her former spouse, he
would object. Presumably he would prove through a DNA or blood test that he is
not the biological father. The test results would provide the clear and convincing
evidence that would rebut the presumption of legitimacy.
For this reason, it is not to be anticipated that defendant will ever attempt to
obtain a court order finding that her former spouse is the child’s father. And
plaintiff cannot seek to reopen the divorce case. Killingbeck v Killingbeck, 269
Mich App 132; 711 NW2d 759 (2005).3 In effect, the majority has blocked
3
In Killingbeck, a child’s biological father moved to intervene in plaintiff’s
divorce case concerning custody issues. He was not the plaintiff’s husband. The
Court of Appeals noted that the trial court erred in granting his motion to
(continued…)
6
plaintiff from ever having the legal right to father and support the child. As our
Court observed 29 years ago, without dissent,
“If the function of a court is to find the truth of a matter so
that justice might be done, then a rule which absolutely excludes the
best possible evidence of a matter in issue rather than allow it to be
weighed by the trier of fact must necessarily lead to injustice.
Further, when a court voluntarily blindfolds itself to what every
citizen can see, the public must justifiably question the
administration of law to just that extent.” [Serafin v Serafin, 401
Mich 629, 635-636; 258 NW2d 461 (1977), quoting the Texas Court
of Civil Appeals in Davis v Davis, 507 SW2d 841, 847 (Tex Civ
App, 1974).]
CONCLUSION
I would deny leave to appeal and remand this case to the trial court for a
full hearing of plaintiff’s paternity claim. Plaintiff should be accorded standing
there. I would hold that defendant’s judgment of divorce contains an effective
finding by the divorce court that defendant’s son was not an issue of her marriage.
The judgment’s failure to be more specific was caused solely by defendant’s
deception in keeping secret the fact that she was pregnant. There is strong,
unrefuted evidence that any presumption that plaintiff’s son was the issue of
defendant’s marriage would be rebutted if tested. Defendant has not chosen to test
it; plaintiff cannot.
(…continued)
intervene, saying, “Domestic relations actions are strictly statutory. The only
parties to a divorce action are the two people seeking dissolution of their marriage.
. . . [The biological father’s] sole recourse on any issue involving his son was in
the paternity action, not in the divorce action.” Id. at 140 n 1.
7
Defendant should not be heard now to rely on a presumption that she
should have asserted in the divorce court. The majority apparently concludes that
the presumption arose when her child was born and has force and effect outside
and despite the language of the divorce judgment. Even if that were true, and I
question it, defendant should not be permitted to rely on the presumption to defeat
plaintiff’s standing in his paternity action. If she wishes to assert it, defendant
should seek to reopen the divorce case. For this Court to place the presumption of
legitimacy over the judgment of divorce is to allow defendant to defeat plaintiff’s
standing in the paternity action. This is despite the fact that the presumption that
defendant relies on likely would have been rebutted already but for her deception
of her husband and of the divorce court. The result is ill-reasoned and unjust.
Marilyn Kelly
8
S T A T E O F M I C H I G A N
SUPREME COURT
MICHAEL J. BARNES, JR.,
Plaintiff-Appellee,
v No. 129606
KIM CHRISTINE JEUDEVINE,
Defendant-Appellant.
_______________________________
MARKMAN, J. (dissenting).
I respectfully dissent. I cannot join the majority’s opinion, which would
reverse the Court of Appeals, and which would deny plaintiff-- who no one
disputes is the biological father of the child at issue-- the right to be the father of
the child he has raised for over four years. Instead, the majority would leave this
child without a father. In the process, the majority would render a default
judgment in this case meaningless; it would condone and encourage
gamesmanship by a party to a child custody proceeding; and it would allow a party
to prevail, in significant part because of that party’s own delinquency in failing to
participate in an earlier judicial proceeding.
BACKGROUND
Plaintiff alleges that he and defendant had a sexual relationship while
defendant was still married to her ex-husband, James Charles. A child was
conceived before defendant’s divorce from Charles, but born four months after the
divorce. Charles, who had filed for divorce, had no knowledge of the pregnancy
because defendant did not appear in the divorce action, and the default divorce
judgment stated that “it further appear[ed] that no children were born of this
marriage and none are expected . . . .” Plaintiff and defendant lived together with
the child for nearly 4 1/2 years after the divorce and before their separation;
thereafter, defendant apparently denied plaintiff access to the child. Plaintiff
claims that it has now been about 2 1/2 years since he has seen his son.
Plaintiff filed a paternity action, but the circuit court granted summary
disposition to defendant, ruling that the default divorce judgment did not amount
to the prior judicial determination that Charles was not the father of the child
conceived during the marriage, as required by Girard v Wagenmaker, 437 Mich
231; 470 NW2d 372 (1991), and, therefore, that plaintiff lacked standing to bring a
paternity action. The Court of Appeals reversed, holding that the default divorce
judgment did, in fact, constitute such a prior judicial determination.
ANALYSIS
The presumption that children born or conceived during a marriage are the
issue of that marriage is deeply rooted in our statutes and has been consistently
recognized throughout our jurisprudence. See In re KH, 469 Mich 621, 634-635;
2
677 NW2d 800 (2004). This presumption vindicates a number of interests, not
the least of which include the interest of the child in not having his or her
legitimacy called into question, the interest of the state in ensuring that children
are properly supported, and the interest of both in assuring the effective operation
of intestate succession. The presumption also reflects the recognition that
“‘[t]here is no area of law more requiring finality and stability than family law.’”
Id. at 635 n 27 (citation omitted). For this reason, we have held that “clear and
convincing evidence” is required in order to overcome the presumption of
legitimacy. Id. at 634.
The title of the Paternity Act, MCL 722.711 et seq., states that the act is
intended “to confer upon circuit courts jurisdiction over proceedings to compel
and provide support of children born out of wedlock . . . .” See also Van Laar v
Rozema, 94 Mich App 619, 622; 288 NW2d 667 (1980) (“intent behind this statute
is to provide support for illegitimate children”). The act confers standing on the
father of a child born out of wedlock to sue to establish paternity. In re KH, supra
at 631-632. Section 1 of the act provides the relevant definition:
(a) “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 that the court has determined to
be a child born or conceived during a marriage but not the issue of
that marriage. [MCL 722.711 (emphasis added).]
Thus, there are two ways to satisfy the definition of “child born out of wedlock”
for purposes of the Paternity Act: (1) a showing that the child was neither born nor
3
conceived during the mother’s marriage or (2) a judicial determination that the
child was not the issue of the marriage.
In Girard, we stated that the judicial determination referred to in the statute
was a prior determination: “For a putative father to be able to file a proper
complaint in a circuit court, . . . a circuit court must have made a determination
that the child was not the issue of the marriage at the time of filing the complaint.”
Girard, supra at 242-243 (emphasis in original). The requirement of a prior
determination that a child is born out of wedlock reflects a legislative recognition
that paternity claims generally arise during divorce or custody disputes. In re KH,
supra at 635. We have observed that this requirement suggests that the
Legislature contemplated “‘situations where a court in a prior divorce or support
proceeding determined that the legal husband of the mother was not the biological
father of the child.’” Id. (citation omitted). Such a prior determination is exactly
what occurred in this case.
Defendant failed to respond to the complaint for divorce filed by her (now-
ex) husband, and a default judgment of divorce ultimately was entered. It has long
been the rule in this state that the entry of a default judgment has the legal effect of
admitting all well-pleaded allegations. See, e.g., Lesisko v Stafford, 293 Mich
479, 481; 292 NW 376 (1940); Wood v Detroit Inter-Ins Exch, 413 Mich 573, 578;
321 NW2d 653 (1982); Kalamazoo Oil Co v Boerman, 242 Mich App 75, 79; 618
NW2d 66 (2000). In paragraphs 5 and 6 of his complaint for divorce, Charles
alleged that defendant was not pregnant and that no children were born during the
4
marriage. Because defendant never appeared, she was defaulted, the legal effect
of which was her admission that she was not pregnant and that no children were
born during the marriage. Although it was clearly factually incorrect that
defendant was not pregnant on the date of the entry of the default divorce
judgment, the legal effect of her default was an admission that she was not
pregnant on the date of the divorce. Because defendant never sought to set aside
the default judgment and never appealed the judgment, it continues to stand for the
proposition that no issue resulted from her marriage to Charles, that is, necessarily,
that any child born after the date of the divorce was a “child born out of wedlock”
for purposes of the Paternity Act, MCL722.711(a).
Moreover, the default judgment states, in pertinent part:
[I]t satisfactorily appears to this Court that there has been a
breakdown in the marriage relationship to the extent that the objects
of matrimony have been destroyed, and there remains no reasonable
likelihood that the marriage can be preserved; it further appearing
that no children were born of this marriage and none are
expected . . . .” [Emphasis added.]
The majority suggests that this statement did not constitute an “affirmative finding
regarding the child’s paternity,” ante at 8. I respectfully disagree. The plain
language of the judgment could hardly be clearer: “no children were born of this
marriage and none are expected[.]” Once more, “no children were born of this
marriage and none are expected[.]” The trial court thus concluded, not
unreasonably, that no children were born of the marriage of Charles and
defendant. As such, the child later born to defendant must, for purposes of the
5
Paternity Act, MCL 722.711(a), have necessarily been a “child born out of
wedlock.”
The majority further suggests that it “cannot be reasonably asserted that
there was clear and convincing evidence” to support the language in the default
judgment. Ante at 9. Again, I must disagree. The proofs submitted at the hearing
consisted entirely of Charles’s testimony. Charles testified under oath, among
other things, that “my wife is not pregnant at this time to the best of my
knowledge.” After hearing the testimony, the trial court stated:
I find from the proofs submitted there has been a breakdown
in the marriage relationship to the extent that the objects of
matrimony have been destroyed and there remains no reasonable
opportunity for the marriage to be preserved. Accordingly, the Court
hereby has signed the judgment as prepared and presented.
[Emphasis added.]
In other words, the trial court considered the evidence presented at the hearing and
issued its judgment on the basis of that evidence. Among the evidence presented
was Charles’s express testimony that defendant was not pregnant. The language
used in the default judgment is a function of this evidence; there is no requirement
that a pregnancy test be administered before a trial court may rely on the
uncontradicted statement of the husband that his wife is not pregnant. The trial
court’s order and its statement on the record are both quite clear, and completely
contradict the majority’s suggestion that the judgment was not supported by clear
and convincing evidence.
6
“The rule is well established that courts speak through their judgments and
decrees . . . .” Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977); see
also Newbold v Stewart, 15 Mich 155 (1866). With respect to default judgments,
the instant Court of Appeals panel observed:
“A default judgment is just as conclusive an adjudication and
as binding upon the parties of whatever is essential to support the
judgment as one which has been rendered following answer and
contest.” Perry & Derrick Co v King, 24 Mich App 616, 620; 180
NW2d 483 (1970). See also Schwartz v City of Flint, 187 Mich App
191, 194; 466 NW2d 357 (1991). Respecting defaults, in their
factual as well as legal components, is a function of the policy of
respecting the finality of judicial judgments. See, e.g., Nederlander
v Nederlander, 205 Mich App 123, 126; 517 NW2d 768 (1994). If
the trial court’s equivocation about there merely “appearing” to be
no children of the marriage did indeed reflect the court’s lack of
opportunity to consider the factual matter fully, it nonetheless
reflected no lack of legal authority behind the substance implicit in
that unchallenged ruling. [Unpublished opinion per curiam of the
Court of Appeals, issued August 23, 2005 (Docket No. 252840), slip
op at 2.]
The Court of Appeals analysis regarding the force and effect of default
judgments was entirely correct. Defendant’s ex-husband testified in the divorce
action that there were no children produced as a result of the marriage, and
defendant did not appear to contest that representation, which was the legal
equivalent of her admission of its truth. The judgment of divorce recognized that
no children resulted from the marriage, i.e., that Charles was not the father of any
children. It is difficult to imagine evidence more “clear and convincing” of a fact
than one party’s assertion of that fact under oath and the opposing party’s
admission of that fact. Accordingly, the legal presumption that a child is factually
7
the offspring of the mother’s husband was addressed and fully repudiated in this
case by the default judgment of divorce. The Court of Appeals, therefore, did not
err in concluding that plaintiff had standing to bring this paternity action.1
Moreover, I note that a finding that defendant was not pregnant with
Charles’s child was, in fact, necessary for the trial court to have entered the default
judgment of divorce. MCL 552.9f sets forth certain procedural requirements in an
action for divorce and provides, in pertinent part:
No proofs or testimony shall be taken in any case for divorce
until the expiration of 60 days from the time of filing the bill of
complaint, except where the cause for divorce is desertion, or when
the testimony is taken conditionally for the purpose of perpetuating
such testimony. In every case where there are dependent minor
children under the age of 18 years, no proofs or testimony shall be
taken in such cases for divorce until the expiration of 6 months from
the day the bill of complaint is filed. [Emphasis added.]
Under this provision, no proofs or testimony can be heard in a divorce action in
which children are involved until at least six months from the time of the filing of
the complaint.2 Charles filed the divorce action on June 23, 1998, and the
1
The majority views as significant the fact that, along with the finding that
no children were born to or conceived by the parties during their marriage, the
circuit court did not also make an explicit finding that a child was conceived
during the marriage. Ante at 9. However, given the determination of the trial
court-- that “no children were born of this marriage and none are expected”-- it is
nothing more than a matter of logic that the child here was “conceived during a
marriage but not the issue of that marriage.” MCL 722.711(a).
2
MCL 552.9f does provide an exception:
In cases of unusual hardship or such compelling necessity as
shall appeal to the conscience of the court, upon petition and proper
(continued…)
8
judgment of divorce was entered on November 2, 1998. Thus, the judgment of
divorce granted to Charles and defendant was entered just over four months from
the time of the filing of the complaint for divorce. Because a court may grant a
divorce after only 60 days have elapsed when no minor children are involved, but
may not grant a divorce until six months have elapsed when minor children are
involved, the trial court necessarily must have concluded from the evidence
presented, i.e., Charles’s testimony, that defendant was not pregnant and,
therefore, that no issue resulted from the marriage.3 While later events
(…continued)
showing, it may take testimony at any time after the expiration of 60
days from the time of filing the bill of complaint.
However, there is no indication whatsoever that this exception was invoked
in the instant divorce.
3
The majority recognizes that a “‘default judgment is just as conclusive as
an adjudication and as binding upon the parties of whatever is essential to support
the judgment as one which has been rendered following answer and contest,’” ante
at 8, quoting Perry & Derrick Co v King, 24 Mich App 616, 620; 180 NW2d 483
(1970). However, the majority proceeds promptly to disregard this basic principle
by suggesting that the judgment of divorce was not a sufficient “court
determination.” Ante at 8. Yet, as noted above, under MCL 552.9f, the finding
that the parties produced no issue was “essential to support the judgment.” Perry,
supra at 620. Moreover, had defendant appeared at the divorce proceeding, an
answer to the question whether it had been shown by clear and convincing
evidence that Charles fathered no children would have been “rendered following
answer and contest.” Id. Because defendant did not appear in that action, the
question was decided against her. As such, the fact that Charles did not father a
child with defendant was definitively resolved by the default judgment of divorce.
The question of what legal standard should have been used to resolve the
underlying question, in the absence of an appeal of that issue, is irrelevant to the
fact that the judgment resolves the question.
9
subsequently proved this conclusion incorrect, they do not alter the fact that the
trial court did, in fact, enter this finding. A court issuing a default judgment can
only work with the information actually presented to it, but this does not alter the
legal effect of its factual conclusions.
In reaching its conclusion, the majority renders the default judgment in this
case essentially meaningless. The majority suggests, in effect, that a judicial
determination requires that the court, in its decision-making, be fully aware of all
the facts. However, in a default setting, where one party has failed to appear, it is
obviously not always possible for the court to be fully aware of all the pertinent
facts. After all, one side has chosen to deprive the court of the facts of which its
witnesses presumably are aware. However, this has never been thought to relieve
the trial court of its obligation to render a “determination” in such a case on the
basis of as many facts as have been made available to the court. This is simply in
the nature of default judgments. It is for this reason, among others, that parties to
judicial proceedings would be prudent to show up for such proceedings.
The majority, wrongly in my view, characterizes the trial court’s order as
an equivocation because of its references in its order to “it satisfactorily appears”
and “it further appearing . . . .” Quite apart from the fact that such language is
entirely unremarkable in judicial orders, and has never before been thought to
evidence “equivocation,” the reality is that a prudent court could well choose to
employ such language in virtually every order given that it is not omniscient and
can only render decisions on the basis of evidence properly before it. The
10
majority would transform entirely innocuous and customary language, routinely
employed by courts, probably from time immemorial, into language pregnant with
meaning, showing hesitation and uncertainty on the part of the court. Better
apparently for the court to affect an all-knowing certainty of facts than to reveal
the ordinary cautiousness of a person who understands the fallibilities of the
judicial process. The majority’s deconstruction of court orders notwithstanding,4
whether a court states that something “appears to be,” rather than that it “is,” does
not deprive an order of the full force of judicial authority.5 Rather, a judgment-- a
default judgment no less than any other-- represents to the world a binding
determination concerning the issues pertinent to the judgment, and persons may
4
One wonders whether orders in which courts “believe” or “find” a
particular fact satisfies the requirements of certitude established today by the
majority. Moreover, it is noteworthy that the standard language this Court
employs in denying a motion for reconsideration asserts that the motion is being
denied because “it does not appear” that the initial order was entered erroneously.
See, e.g., McDanield v Hemker, 714 NW2d 301 (2006). In light of this Court’s
obvious “equivocation” in such circumstances, one wonders whether parties who
have received such orders are entitled to successive motions for reconsideration
until we are certain enough to deny such motions unequivocally.
5
The practical consequences of the majority’s approach would be that
default judgments would effectively always be in suspense pending additional
information being made available to the judicial system, most typically, perhaps,
from the defaulting party itself. While default judgments rarely constitute the
ideal means of rendering a judicial “determination,” such a procedure nevertheless
is necessary to the orderly administration of justice, and the factual determinations
made in accord with a default are just as binding as facts determined in judgments
entered with the benefit of advocacy on both sides.
11
not avoid the legal effect of such a judgment by attempting to relitigate the facts
that underlie it.6
Here, defendant failed to appear in the divorce action. Had she done so, she
could have contested the trial court’s conclusion that “no children were born of
this marriage and none are expected[.]” Yet, by failing to appear, she failed to
contest that conclusion, and the court entered a judgment based on the best
information available to it at the time. Because the power to correct this
determination rested at all times solely in defendant, she in particular should now
be bound by that determination, rather than being allowed to profit from her own
dereliction, as the majority permits-- if, indeed, denying her son the right to a
father he has known since birth can be considered “profiting.” The majority thus
allows a party to prevail in this case in significant part because of that party’s own
delinquency in failing to participate in an earlier judicial proceeding.
As already noted, one of the Legislature’s stated purposes in enacting the
Paternity Act was “to compel and provide support of children born out of wedlock
. . . .” Title of 1956 PA 205, MCL 722.711 et seq. The majority’s decision today
frustrates that purpose in the case of this child. In reversing the Court of Appeals,
6
In arguing that the pertinent language of the divorce judgment does not
constitute a sufficient determination that Charles was not the father of her child,
plaintiff is essentially mounting a collateral attack on the divorce judgment.
Because defendant did not seek leave to appeal the trial court’s order in the
divorce proceeding (or even paricipate in the proceeding), she should not be
allowed to collaterally attack that order in this case. See People v Sessions, 474
Mich 1120 (2006).
12
the majority ensures that plaintiff has no legal obligation to provide support for
this child. Moreover, because it seems clear that defendant has no intention of
bringing a claim for support against her ex-husband, and if she ever did, could not
prevail in that claim because Charles is obviously not the child’s father, the
majority also ensures by its decision today that this child will not receive support
from any father. In other words, were defendant to seek support from her ex-
husband, her child would almost certainly become-- even under the majority’s
holding-- a “child that the court has determined to be a child born or conceived
during a marriage but not the issue of that marriage,” MCL 722.711(a), affording
plaintiff unquestionable standing to bring a paternity action. Clearly, as shown by
the facts of this case, defendant has no interest in that outcome. As such, the
majority provides defendant with its blessing to neglect to seek the support to
which her child is entitled, solely for reasons of legal strategy. Thus, the majority
sanctions defendant’s legal gamesmanship at the expense of the well-being of her
child.
This result is especially troubling in light of the continuing concern on the
part of both the public and the members of this Court about fathers unwilling to
financially support their children. The majority here rejects a father who
13
welcomes the opportunity to take responsibility for his child, and who has acted as
a father for more than four years, in favor of no father at all.7
Although I believe strongly in the importance of the presumption of
legitimacy, that presumption has been rebutted by clear and convincing evidence
in this case. Defendant’s ex-husband alleged that there were no children produced
as a result of the marriage, and he testified to that effect at the divorce hearing.
Defendant failed to appear at the hearing, which constituted a legal admission that
there were no children of the marriage. The divorce judgment asserted that no
children resulted from the marriage and, therefore, that Charles was not the father
of any children. After the child was born, a birth certificate was prepared
identifying plaintiff as the father. An affidavit of parentage was signed by the
7
The majority argues that I am incorrect to suggest that its decision leaves
this child without a father, and instead asserts that Charles is the child’s legal
father. Ante at 10. However, it is the majority that is, tragically, incorrect. The
plain language of the judgment states that Charles is not the father of any children
borne by defendant. Because this judgment is res judicata of the issue as between
Charles and defendant, defendant would have to take additional action (for
instance, bringing a motion to revise or alter the judgment under MCL 552.17[1])
in order for the status quo to be altered and Charles to be declared the child’s
father. Charles doubtlessly would be shocked to learn that the majority believes
he is the father. He is not, either biologically or legally.
Moreover, as I have pointed out elsewhere, there is no chance that this
status quo will ever be altered because: (a) defendant almost certainly will never
bring a motion to revise or alter, knowing that it would be successfully challenged
by Charles and that this would allow plaintiff to relitigate his paternity, something
that defendant is plainly not prepared to allow; and (b) it is clear to everyone, the
majority excepted, that the status quo accurately reflects the truth of the situation,
namely that Charles is not the father of the child.
14
parties.8 The parties lived together with the child as a family for over four years.
And defendant has never denied that plaintiff is the father of her child. Plaintiff
was a father to a little boy-- a little boy who stands to suffer greatly from the
majority’s decision today, both financially and emotionally. Yet the majority
finds that there is no “clear and convincing” evidence that Charles was not the
father of defendant’s child. I could not disagree more strongly.
CONCLUSION
In adopting defendant’s position that the divorce judgment was insufficient
to establish that her child was born out of wedlock, the majority renders a default
judgment in this case meaningless; it condones and encourages gamesmanship by
a party to a child custody proceeding; and it allows a party to prevail, in significant
part, because of that party’s own delinquency in failing to participate in an earlier
judicial proceeding. For the foregoing reasons, I would affirm the decision of the
Court of Appeals and hold that plaintiff has standing to pursue a paternity action.
Stephen J. Markman
Michael F. Cavanagh
8
The affidavit provides that the parties “consent that the name of the
natural father may be included on the certificate of birth for the child” and that
“the mother states that she was not married when this child was born or conceived;
or that this child though born or conceived during marriage, is not an issue of that
marriage as determined by a court of law.”
15