Crego v. Coleman
506 N.W.2d 568
Mich. Ct. App.
1993
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CREGO v COLEMAN

Docket No. 139068

Michigan Court of Appeals

September 7, 1993

201 Mich App 443

Phyllis R. Crego brought a paternity action in the Wayne Circuit Court against Kermit Coleman. By stipulation of the parties and after determining that adequate support had been provided for the child, the court, Marianne O. Battani, J., entered an order dismissing the complaint and directing the defendant to pay child support of $20 a week until the friend of the court made a formal recommendation and then to pay the lesser of the recommended amount or $50 a week until the child reaches eighteen years of age. Upon stipulation of the parties, the court entered a second order, increasing the amount of initial child support. The stipulation that prompted the second order included an agreement by the parties that the support order would not be subject to modification. After the friend of the court made its recommendation, the court entered a third order that directed the defendant to pay $50 a week until the child turns eighteen or until further order of the court. Neither party nor their attorneys signed the third order to approve its form or substance. The plaintiff thereafter moved for an increase in child support. The court denied the motion on the basis of res judicata. The plaintiff appealed.

The Court of Appeals held:

Section 3 of the Paternity Act, MCL 722.713; MSA 25.493, specifically provides that the performance of an agreement approved by a court for the provision of support to an illegitimate child by its father bars other remedies of the mother or child for the support and education of the child. The statutory bar prevents modification of a support order unless the parties’ settlement agreement provides otherwise or unless the order directs payment of support until further order of the court.

In this case, the second order of the trial court was entered pursuant to a stipulation by the parties that the support obligation would not be subject to modification. Although the third order provides that the defendant must pay support until further order of the court, there is no indication in the record that the parties agreed to that provision. The trial court lacks authority to modify support and it correctly denied the plaintiff‘s motion for modification, albeit for the wrong reason.

Affirmed.

GRIFFIN, J., dissenting, stated that in the absence of an objection or an appeal by the defendant with respect to the third order of the trial court, support was ordered paid until further order of the court, thereby allowing modification of the support obligation.

PARENT AND CHILD — PATERNITY ACTIONS — CHILD SUPPORT AGREEMENTS — MODIFICATION OF CHILD SUPPORT.

In a paternity action, an agreement approved by a court for the provision of support to an illegitimate child by its father is not subject to subsequent modification unless the parties provide for such modification in their settlement agreement or the order of support directs payment until further order of the court (MCL 722.713; MSA 25.493).

Robes, Woodford & Kobliska (by J. Stephen Robes), for the plaintiff.

Steven M. Jentzen, for the defendant.

Before: HOLBROOK, JR., P.J., and GRIFFIN and REILLY, JJ.

REILLY, J. Plaintiff appeals as of right from a March 22, 1991, order dismissing, on the basis of res judicata, her motion for modification of a child support order.

Pursuant to a stipulation between the parties, the trial court by order dated July 10, 1980, dismissed plaintiff‘s paternity complaint after determining that adequate provision for support had been made. The trial court adopted the parties’ agreement and ordered defendant to pay $20 a week until the friend of the court made its formal recommendation, and thereafter the recommended sum or $50 a week, whichever was less, until the child reached eighteen years of age.

On September 26, 1980, the trial court again determined that adequate provision for support had been made and, pursuant to the agreement of the parties, dismissed the cause “as to the question of paternity only,”1 and ordered defendant to pay $20 a week from July 10, 1980, to September 26, 1980, $35 a week thereafter until the friend of the court recommendation was received, and thereafter the amount of the recommendation or $50 a week, whichever was less, until the child reached eighteen years of age. The stipulation upon which the order was based stated “that it is the intent of the parties that the attached order is not modifiable,” and “this matter shall stand settled, discontinued and dismissed against Kermit L. Coleman, defendant herein.”

On January 30, 1981, after the friend of the court recommendation was submitted, the trial court entered a “permanent” order requiring defendant to pay $50 a week in support “commencing January 30, 1981, and continuing until said child attains the age of eighteen years or until further order of the court.” Neither party nor their attorneys signed the order to approve its form or substance.

Although defendant could have consented to further modification of the settlement agreement to include the language “or until further order of the court,” the record does not show that he did so.

Settlements are contracts and are governed by

the legal principles applicable to contracts.

. In Hisaw, this Court rejected the equal protection argument raised on behalf of an illegitimate child and recognized the binding effect of a settlement in a paternity matter. Declining to follow
, and relying on MCL 722.713; MSA 25.493, this Court held:

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 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. [

.]

We believe Hisaw to be the better-reasoned opinion, and we choose to follow it. Likewise, we believe that

, is distinguishable. In this case, defendant never acknowledged paternity. The trial court determined, in its order dismissing the case pursuant to the stipulation of the parties, that adequate provisions for support had been made. The second order, again pursuant to stipulation, authorized payment in accordance with the friend of the court recommendation. The stipulation stated that “the attached order is not modifiable” and “this matter shall stand settled, discontinued and dismissed” against defendant. The third order, entered after dismissal, was without consent of the parties and, we believe, was without effect beyond stating the amount recommended by the friend of the court, which change had been agreed to by the parties in their stipulation.

MCL 722.713; MSA 25.493 specifically provides that the performance of the agreement after approval by the court bars “other remedies of the mother or child for the support and education of the child.” That statutory bar prevents modification of the support order unless the parties provide for modification in the language of their settlement agreement.

Permission to modify has been found where the parties agreed that support should be paid “until the child reaches eighteen years of age or until further order of the court.”

. Although the language “until further order of the Court” was inserted in the order signed on January 30, 1981, nothing in the record suggests that phrase was agreed to by defendant, and plaintiff does not make that claim. The trial court had no authority to modify the parties’ agreement by entering a support order that was inconsistent with the parties’ settlement of the paternity action that had previously been approved by the court. MCL 722.713; MSA 25.493;
. We conclude, therefore, that the phrase “or until further order of the court” in this case could not change the agreement made by the parties, and does not authorize later modification by the court.

The order of the trial court dismissing plaintiff‘s motion for modification is affirmed, although for reasons other than those stated by the trial court.

.

Affirmed.

HOLBROOK, JR., P.J. concurred.

GRIFFIN, J. (dissenting). I respectfully dissent. I would reverse on narrow grounds. At issue in this appeal is a 1981 circuit court order that specifically provides for modification by using the language “until further order of the court.” Although defendant now contends that he never agreed to the language allowing for modification, there was no objection to the order when it was entered in 1981 and defendant never appealed.

An agreement to provide support for a child born out of wedlock requires approval by the court, MCL 722.713(a); MSA 25.493(a), and it is well settled that a court speaks only through its written orders.

. Moreover, a judgment entered by consent is not a contract; rather, it has the same force and effect as a litigated judgment.
. Because the order in this case allows for modification, the court was not barred from entertaining plaintiff‘s request for an increase in support. Compare
.

Notes

1
1 The phrase “as to the question of paternity only” was handwritten after the printed language “is hereby dismissed as to Kermit L. Coleman, defendant herein.” There is nothing in the order that indicates who added the language, when or whether it was approved by the court.