This is an appeal from an order of the Muskegon County Circuit Court denying the petition of Patricia Wiseman, representеd in these proceedings by the Muskegon County Prosecutor, to amend the judgment of divorce entered between her and her former husband, Dwight Wiseman. The case comes before us upon the following stipulation of facts:
"Patricia Wiseman, Petitioner-Appellant, and her husband, Dwight Wiseman, Respondent-Appellee, separated in March of 1970. A judgment of divorce was entered on February 5, 1973.
"During the time of separation, Defendant-Appellant and Plaintiff-Appellee terminated sexual relations with one another. However, the Defendant-Appellant was conceived of a сhild two months prior to the divorce judgment of February 5, 1973. Said child, Ladonna Tamega Wiseman, was born on August 31, 1973, approximately seven months after the judgment of divorce was entered.
"Although said child was conceived during the marriage of the Petitioner and Respondent, both parties agree and acknowledge that the Plaintiff-Appellee is not the biological father. Since the child had not yet been born at the time of the divorce, the divorce decree did not provide for support of the child.
"The Muskegon County Prosecutor’s Office filed in Circuit Court a petition on behalf of Patriciа Wiseman to amend the divorce decree to include child support payments to be made by the respondent, Dwight Wise-man. A hearing was held, and the Circuit Court permitted both parties to testify as to their non-access during their separаtion period. The court specifically adjudged that Dwight Wiseman is not the biological father of Ladonna Wiseman, and denied the petitioner’s motion *139 to amend the divorce decree to provide for child support. The only evidence presented to the court was the testimony of the petitioner and the respondent.”
The prosecutor appeals from the trial court’s denial of the petition to amend the judgment of divorce. His argument for reversal is that Lord Mansfield’s rule should have prohibited the testimony of both the husband and the wife as to the fact that the defendant was not the father of the child. Long established in Michigan, Lord Mansfield’s rule renders inadmissible testimony by either spouse on the question of whether the husband had access to the wife at the time of conception.
Egbert v Green wait,
"The truth is that these high-sounding 'decencies’ and 'moralities’ arе mere Pharisaical afterthoughts, invented to explain a rule otherwise incomprehensible, and lacking support in the established facts and policies of our law. There never was any true precedent for the rule; and there is just as little reason of policy to maintain it”. 7 Wigmore, Evidence (3d ed), § 2064, p 369.
Nor has displeasure with the rule been limited to sсholars; numerous states, either through judicial decision or legislative action, are no longer following this exclusionаry rule of evidence. See the cases and statutes listed in
Maxwell v Maxwell,
Defendant further contends that application of the rule denies him his right to a meaningful hearing and thus due process is violated. Certainly а rule of law which would shut out evidence in a party’s favor and thus deny him the opportunity for a fair and effective trial runs counter to accepted notions of due process.
Gile v Hudnutt,
Although thе court below erred in its admission of testimony by husband and wife as to their nonaccess during the separation period, the parties to this appeal have stipulated that husband and wife did not engage in sexual relations during that period. In sо stipulating the prosecutor has con
*141
ceded that plaintiffs case is without merit. However strong the prosecutor’s desire to relieve the State of Michigan from burdens upon the public funds, he should not go so far as to ask a court to accept as a fact that which he has admitted before this Court to be false. Common law rules of evidence may restrict the modes of inquiry for courts, but they should not become hyper-technical stumbling blocks placed in front of knоwn truths. Michigan courts have not viewed lightly divorce judgments obtained upon false premises. See
Allen v Allen,
Affirmed.