Bessmertnaja v. SchwagerBessmertnaja v. Schwager
In an order of filiation dated June 5, 1989, the circuit court declared that defendant was the father of plaintiffs child and ordered defendant to pay $75 a week in child support and $7,260 for plaintiffs attorney fees and expenses. Defendant appeals as of right, alleging that the Paternity Act, MCL 722.711 et seq., MSA 25.491 et seq., is unconstitutional, that plaintiffs claim is barred by the doctrines of comity and res judicata, and that the trial court exceeded its authority and abused its discretion in awarding expenses and attorney fees. We disagree and affirm.
Defendant, a United States citizen, visited the Soviet Union from 1975 through 1977. At that time, defendant had a sexual relationship with the plaintiff, which led to the birth of Daniel Bessmertnaja on November 5, 1977. In October 1977, defendant returned to the United States. In January 1978, defendant visited plaintiff and the child in the Soviet Union. Subsequently, plaintiff and the child immigrated to Sweden, where plaintiff married a Swedish citizen. Plaintiff initiated a
First, defendant claims that §4(2) of the Paternity Act MCL 722.714(2); MSA 25.491(2), is unconstitutional. We disagree. Initially, defendant claims that the Paternity Act, by extending the statute of limitations so that paternity actions can be brought any time before a child turns eighteen, destroyed defendant’s vested property right under the prior six-year period of limitation. We hold that defendant did not have a vested right in having the paternity action barred by the statute of limitations.
The new statute of limitations, enacted in 1986, has been applied retroactively in cases in which the prior six-year period of limitation had already lapsed.
Ozark v
Kais,
Defendant also claims that the Paternity Act is unconstitutional as it relates to the support and maintenance of illegitimate foreign children. Specifically, defendant claims he was denied the right to a fair trial by his inability to produce witnesses, documents, and information for his defense because this information is beyond the subpoena power of the court. We disagree.
A party may obtain discovery regarding any matter relevant to the subject matter of a paternity action. MCR 2.302(B)(1);
Young v
Jangula,
In the present case, defendant admitted that he did not have witnesses whom he wished to subpoena. The only specific pieces of evidence that defendant argues were not provided were papers and documents from the Swedish paternity action. However, defendant did not make a motion for the court to issue a discovery order. On the basis of these facts, we hold that defendant was not deprived of his right to a fair trial, because there were avenues available for him to obtain any information necessary. Defendant simply chose not to pursue those avenues.
Defendant also claims that the Paternity Act is unconstitutional in the present case because it
Second, defendant argues that plaintiff’s claim is barred by the doctrines of comity and res judicata because the present issues have been fully adjudicated and settled by the courts of Sweden. We disagree.
In recognizing and enforcing the laws of another state, this Court is disinclined to overrule the positive law of this forum to give foreign law effect, especially when it would contravene the fixed policy of the law of this state.
Mt Ida School for Girls v Rood,
To recognize and enforce the Swedish judgment, which found defendant to be Daniel’s father but declined to aw?rd support, would contravene Michigan’s public policy. Thus, the judgment is not entitled to recognition or enforcement. Having concluded that we will not recognize and enforce the Swedish judgment, the doctrine of res judicata does not preclude the present litigation.
Finally, we address whether the trial court acted beyond its authority and abused its discretion in awarding expenses and attorney fees against defendant. We conclude that it did not, and we affirm.
MCL 722.717(2); MSA 25.497(2) requires that an order of filiation provide "such expenses in connection with the pregnancy of the mother or of the proceedings as the court considers proper.” This broad language includes the expenses plaintiff incurred for travel, meals, lodging, and the blood test in instituting the present proceedings in the United States.
In regard to attorney fees, the trial court held that plaintiff was entitled to attorney fees because defendant had unreasonably denied paternity in his answer and continued to unreasonably deny paternity up to and throughout the trial. On the basis of these findings, the trial court awarded attorney fees under MCR 2.114(E), which permits a court to impose sanctions on a person who signs a pleading in violation of the rule. While we hold that the trial court erred in granting attorney fees under MCR 2.114(E), plaintiff was entitled to attorney fees under the Paternity Act.
Attorney fees ordinarily are not recoverable in common law, but may be recoverable where a statute specifically so provides.
Matras v Amoco
Affirmed.