PHINISEE v ROGERS
Docket No. 190353
Court of Appeals of Michigan
Decided May 8, 1998
229 Mich. App. 547
Submitted May 13, 1997, at Detroit. Leave to appeal sought.
The Court of Appeals held:
1. The court properly found that res judicata does not bar the plaintiff‘s action against the defendant. Res judicata is inapplicable here because the plaintiff was not a party or a privy to her mother‘s 1976 action, there was no final, enforceable judgment entered in the 1976 action, and the plaintiff could not have been a party to the 1976 action because she was not eighteen years of age after August 1984 and before June 1986, as required under the Paternity Act,
2. The court properly granted the defendant‘s motion for summary disposition with regard to the cause of action under the Paternity Act because the plaintiff did not come within the provisions regarding the bringing of an action under the act contained in
3. Because the Paternity Act does not afford an illegitimate child the same rights as a legitimate child to bring an action after age eighteen, a common-law right exists for an illegitimate child over age eighteen to bring a suit for support as provided for and limited by the general disability tolling provision of
4. The court erred in concluding as a matter of law that it had to limit the plaintiff‘s damages to child support payments from the date of the filing of the lawsuit until age 19 1/2 years old. If a cause of action for paternity under the common law is preserved by the tolling provisions of
5. The court did not err in denying the plaintiff attorney fees under
6. The defendant, in denying that he is the plaintiff‘s father in his answer to a request that he admit that he is her father, hаd no reasonable grounds to believe that he might prevail with regard to the factual issue whether he was the plaintiff‘s father in view of a laboratory report setting forth the overwhelming probability (99.98 percent) that he is her father. The court abused its discretion in failing to award sanctions pursuant to
Affirmed in part, reversed in part, and remanded.
- ACTIONS - RES JUDICATA - WORDS AND PHRASES - PRIVITY.
A party seeking to apply the doctrine of res judicata must establish that the prior action was decided on the merits, the issues in the second action werе or could have been resolved in the prior action, and both actions involved the same parties or their privies; privity is defined as mutual or successive relationships to the same right or property, or such an identification of interest of one person with another that it represents the same legal right; privity signifies that the relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon the other, although the other was not a party to the lawsuit; privity between a party and a nonparty requires both a substantial identity оf interests and a working or functional relationship in which the interests of the nonparty are presented and protected by the party in the litigation.
- CHILDREN BORN OUT OF WEDLOCK - ACTIONS - RES JUDICATA.
The interests of the parties to a paternity action are not necessarily identical to or sufficiently similar to those of the illegitimate child so as to mandate application of the doctrine of res judicata in the child‘s subsequent action for filiation and support against the same defendant following the mother‘s unsuccessful paternity action; privity generally does not arise from the relationship between parent and child.
- CHILDREN BORN OUT OF WEDLOCK - ACTIONS - LIMITATION OF ACTIONS.
Paternity actions are generally covered by statute; however, because the Paternity Act does not afford an illegitimate child the same rights as a legitimate child to bring an action after age eighteen, a common-law right exists for an illegitimate child over age eighteen to bring a suit for support as provided for and limited by the gen
eral disability tolling provisions ( MCL 600.5851[1] ,722.711 et seq. ; 27A.5851[1], 25.491 et seq.). - CHILDREN BORN OUT OF WEDLOCK - ACTIONS - COMMON LAW.
There are two distinct statutory proceedings in which to establish the paternity of an illegitimate child: a paternity action and a finding of paternity incident to the child‘s actions for support and maintenance; in аddition, an illegitimate child may pursue a common-law right to support.
- CHILDREN BORN OUT OF WEDLOCK - ACTIONS - DAMAGES.
A finding of paternity relates back to the child‘s birth; where a cause of action for paternity under the common law is preserved by the tolling provisions of
MCL 600.5851(1) ; MSA 27A.5851(1), appropriate damages, including support from the time the child was born, may be sought.
Loyst Fletcher, Jr., and Barry A. Wolf, for the plaintiff.
Marvin R. Smith, for the defendant.
Before: MARKEY, P.J., and JANSEN and WHITE, JJ.
MARKEY, P.J. Defendant Eugene J. Rogers appeals as of right and plaintiff Darcel Phinisee cross appeals as of right from the trial court‘s order partially granting and partially denying defendant‘s motion for summary disposition in this action to determine filiation and support. Plaintiff furthеr cross appeals from the court‘s order requiring defendant to make support payments to plaintiff from the time plaintiff filed her complaint until she reaches 19 1/2 years of age and denying plaintiff‘s request for attorney fees. We affirm in part, reverse in part, and remand.
Plaintiff was born in 1975. Her mother claimed that defendant was plaintiff‘s father and commenced a paternity action against him in 1976. In that case, the trial court ruled that defendant was not plaintiff‘s father, but no final order was ever entered in the
In response, defendant filed a motion for summary disposition pursuant to
I
First, we address defendant‘s claim on appeal that res judicata prevents plaintiff from bringing the present cause of action because plaintiff‘s mother commenced a paternity action against defendant in 1976, in which he was found not to be plaintiff‘s biological father. We disagree. For res judicata to apply, defendant must establish the following: (1) the former suit was decided on the merits, (2) the issues in the second action were or could have been resolved in the former action, and (3) both actions involved the same parties or their privies. Energy Reserves, Inc v Consumers Power Co, 221 Mich App 210, 215-216; 561 NW2d 854 (1997). Because res judicata is a question of law, we review de novo its application as well as
In light of this Court‘s decision in Spada v Pauley, 149 Mich App 196, 199, n 1, 204-205; 385 NW2d 746 (1986), we find that the doctrine of res judicata is inapplicable here for several reasons. First, plaintiff was not a party or a privy to her mother‘s 1976 action. Other jurisdictions have come to the same conclusion, many of them relying on the following passage from Spada, supra at 204-205:
The interests of the parties to a paternity action are not necessarily identical to the illеgitimate child‘s interests nor are they likely to be sufficiently similar to afford the child a forum to protect his rights under the Paternity Act. A mother may fail to initiate a paternity proceeding for various reasons. She may wish to avoid any contact with the father, she may wish to avoid disapproval of the community or her family, she may be able to support the child and not foresee a change in her circumstances, she may be subject to emotional strain and confusion that often attends the birth of an illegitimate child, or she may have a continuing relation with or affection for thе father. . . . Also, the state‘s interest does not coincide with the illegitimate child‘s interest. The Department of Social Services is concerned with its own economic interest. A child‘s interests are much broader.6
See SOV v Colorado, 914 P2d 355, 362, n 10 (Colo, 1996) (citing, for example, twelve cases from various jurisdictions where it is “well recognized” that a child‘s interests in a paternity action differ from those
In Sloan v Madison Heights, 425 Mich 288, 295-296; 389 NW2d 418 (1986), our Supreme Court defined “privity” as follows: “In its broadest sense, privity has been defined as ‘mutual or successive relationships to the same right of property, or such an identification of intеrest of one person with another as to represent the same legal right.’ ” (Citation omitted). Black‘s Law Dictionary (6th ed), p 1199, defines privity as
mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.... [It] signifies that [the] relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon [the] other, although [the] other was not a party to lawsuit.
“Privity between a party and a non-party requires both a ‘substantial identity of interеsts’ and a ‘working or functional relationship . . . in which the inter
We agree with Spada, supra, and the cases cited above, that plaintiff and plaintiff‘s mother, who filed the earlier unsuccessful paternity action against defendant, are not and were not in privity with each other. Moreover, there is no evidence on the record that a final, enforceable judgment was entered in the earlier paternity action, which would also preclude the application of res judicata. SOV, supra at 357, 359. Additionally, plaintiff cоuld not have been a party to the original paternity action because she was not eighteen years of age after August 1984 and before June 1986, as required under
Additionally, defendant and plaintiff both raise issues concerning the trial court‘s partial grant and partial denial of defendant‘s motion for summary disposition. Plaintiff brought her paternity and support claims undеr both the common law and the Paternity Act. The trial court granted defendant‘s motion for summary disposition as to plaintiff‘s cause of action under the Paternity Act but denied it with regard to plaintiff‘s cause of action brought under common law. We review de novo a trial court‘s ruling regarding a motion for summary disposition. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993), aff‘d 446 Mich 482; 521 NW2d 266 (1994); see also Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994).
The Paternity Act,
(1) An action under this act shall be brought by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the department of social services as provided in this act. . . .
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(3) An action under this act may be instituted during the pregnancy of the child‘s mother, at any time before the child reaches 18 years of age, or for a child who became 18 years of age after August 15, 1984 and before June 2, 1986, before March 1, 1993. ...1
Paternity actions are generally covered by statute; however, because the Paternity Act does not afford an illegitimate child the same rights as a legitimate child to bring an action after age eighteen, we have found a common-law right exists for an illegitimate child over age eighteen to bring a suit for support as provided for and limited by the general disability tolling provision of
August 15, 1984 and before June 2, 1986, or the family independence agency as provided in this act. . . .
(2) An action is not required to be brought under this act if the child‘s father acknowledges paternity under the acknowledgment of parentage act . . . .
(3) An action under this act mаy be commenced during the pregnancy of the child‘s mother or at any time before the child reaches 18 years of age. For a child who became 18 years of age after August 15, 1984 and before June 2, 1986, an action under this act may be commenced before January 1, 1995....
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(10) If a determination of paternity is made under this act, the court may enter an order of filiation as provided in section 7....
This language from Gomez has been interpreted by courts to mean that an illegitimate child has the same common law right to support from his father as a legitimate child, e.g., JMS v Benson, 91 Wis 2d 526; 283 the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the periоd of limitations has run. This section does not lessen the time provided for in section 5852.
We agree with the court in Johnson, supra, that while there are two distinct proceedings in which to establish the paternity of an illegitimate child, i.e., a paternity action and a finding of paternity incident to an illegitimate child‘s action for support and maintenance, nothing precludes the illegitimate child from pursuing his common-law right to support. Accord Franklin, supra. Thus, the trial court did not err in denying defendant‘s motion for summary disposition as to plaintiff‘s cause of action brought under the common law.
III
On cross appeal, plaintiff also asserts that the trial court erred in limiting her damages to child support payments from the date of the filing of the lawsuit until age 19 1/2 years old. We agree. On appeal, we review a question of law de novo, Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994), but the decision to award child support will not be reversed absent an abuse of discretion. Ghidotti v Barber (On Remand), 222 Mich App 373, 377; 564 NW2d 141 (1997).
In Thompson v Merritt, 192 Mich App 412, 420-422; 481 NW2d 735 (1991), one of the issues on appeal was whether the trial court erred in ordering the payment of child support retroactive to the child‘s birth. In holding that the trial court did not err in doing so, this Court found that the order of retroactive support was not a modification of an existing order; therefore, it was appropriate. Id. Moreover, this Court has also held that “сhildren born out of wedlock [are] no less deserving of support than those children born in wedlock.” Boyles v Brown, 69 Mich App 480, 483; 245 NW2d 100 (1976). A finding of paternity certainly contemplates that the finding relates back to the child‘s birth. If a cause of action for paternity under the com
Because the parents’ duty to support their children generally extends to the child‘s eighteenth birthday... it would be illogical to extend the statute of limitations beyond the child‘s majority if the legislature contemplated that only current support be awarded in a paternity action. After a child has reached the age of majority, the putative parent would generally no longer have any duty to support that child. Thus, by extending the statute of limitations beyond the age of majority, when the parent no longer has any duty of support, it appears the legislature envisioned that back child support would be awarded in a parentage action.
We find the Seegert court‘s reasoning persuasive and applicable. Here, if the Legislature had not envisioned the award of back child support in a paternity action, it would have made no sense to extend the statute of limitations.
As the Seegert court further noted, id., and as this state also recognized in Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961), and Spada, supra at 206-207, any rule prohibiting back child support in a paternity proceeding, thereby denying illegitimate children support after a paternity adjudication while allowing back child support in other proceedings, would appear to violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 1, § 2 of the Michigan Constitution. Moreover, as previously noted, the Spada Court concluded that the general disability toll
IV
Finally, plaintiff on cross appeal contends that the trial court erred in denying her an award of attorney fees under
Plaintiff asserts that defendant‘s defense was frivolous in two ways: (1) at trial defendant presented no evidence to rebut plaintiff‘s introduction of blood test results indicating a 99.98 percent likelihood that defendant was plaintiff‘s father; and (2) before trial, faced with the blood test results, defendant refused to affirmatively answer a request for admission that he was plaintiff‘s biological father. Plaintiff overlooks the fact that throughout the trial and on appeal, defendant argued that plaintiff could not bring this action against him under either the Paternity Act or a common-law theory, or, in the alternative, that the action was barred by res judicata, presenting applicable case law to support his position. Therefore, defendant‘s defenses cannot be said to be devoid of arguable legal merit because defendant offered reasonable bases for his belief that he could prevail in the matter. Therefore, the trial court did not err in denying plaintiff attorney fеes under
Plaintiff also asserted that she was entitled to sanctions pursuant to
Expenses on Failure to Admit. If a party denies the genuineness of a document, or the truth of a matter as requested under
MCR 2.312 , and if the party requesting the admission later proves the genuineness of the document or the truth of the matter, the requesting party may move for an order requiring the other party to pay the expenses incurred in making that proof, including attorney fees. The Court shall enter the order unless it finds that*
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(3) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or
(4) there was othеr good reason for the failure to admit. [Emphasis added.]
Here, the lower court record reflects that a January 3, 1995, report from the National Legal Laboratories, Inc., sent to defendant‘s counsel calculated defendant‘s “probability of paternity” at 99.98 percent. On March 9, 1995, plaintiff submitted the following request for admission to defendant: “(1) Do you admit or deny that you are the biological father of plaintiff, Darcel Phinisee?” to which defendant answered “deny as untrue.” In a judgment dated October 12, 1995, entered after a jury trial held on this matter, the court set forth the jury‘s finding that “Defendаnt, Eugene J. Rogers, is the biological father of plaintiff, Darcel Phinisee.”
In view of the laboratory report setting forth the overwhelming probability that defendant is plaintiff‘s father, certainly defendant had no reasonable ground to believe that he might prevail on that matter. For similar reasons, defendant simply could assert no good reason for failing to admit that fact. Defendant could have defended on the legal issue and conceded the factual issue, thereby averting what proved to be a clearly unwarranted trial. Consequently, we find that the trial court abused its discretion in failing to award sanctions pursuant to
JANSEN, J., concurred.
WHITE, J. (concurring). I concur in the conclusion that case law establishes that plaintiff is not bound by the prior litigation involving her mother and defendant.
I also agree that under Spada v Pauley, 149 Mich App 196; 385 NW2d 746 (1986), plaintiff has a common-law equitable action to enforce her right to support coextensive with the rights of a legitimate child as set forth in
With regard to the question of retroactivity, I agree that the trial court erred in concluding thаt, as a matter of law, support is restricted to the period commencing with the filing of the complaint. I would reach this conclusion on the basis that
Notes
(1) An action under this act shall be brought in the circuit court by the mother, the father, a child who became 18 years of age after
Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues,
[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold thаt once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.