Lead
Dеfendant 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 further 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 19V2 years of age and denying plaintiff’s request for attorney fees. We affirm in part, reverse in part, and remand.
Plaintiff was bom 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 action. In December 1993, plaintiff turned eighteen years old. In February 1994, plaintiff commenced an action in her own name to establish defendant’s paternity and to seek support from him. Her complaint contained claims for breach of a common-law duty to support a minor child and breach of the Paternity Act, MCL 722.714; MSA 25.494.
In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(5) and (7), alleging that plaintiff’s complaint was barred by virtue of res judicata and the express terms of the Paternity Act. The trial court issued its opinion and order granting summary disposition to defendant on plaintiff’s Paternity Act claim but denying summary disposition as to plaintiff’s common-law claim upon finding a lack of privity between plaintiff and her mother with respect to the 1976 paternity action.
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
In light of this Court’s decision in Spada v Pauley,
The interests of the parties to a paternity action are not necessarily identical to the illegitimate 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 subjeсt 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 the 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,
In Sloan v Madison Heights,
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 interests’ and a ‘working or functional relationship ... in which the interests of the non-party are presented and protected by the party in the litigation.’ ” SOV, supra at 360, quoting Public Service Co v Osmose Wood Preserving, Inc,
n
Additionally, defendant and рlaintiff 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 under 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 plaintiffs 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,
The Paternity Act, MCL 722.714; MSA 25.494, provided, in relevant part, at the time plaintiff commenced this action:
(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. . . .
(3) An action under this act may be instituted during the pregnancy of the child’s mother, at any time before the child rеaches 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 ]
Plaintiff turned eighteen on December 9, 1993. She filed her complaint in this action on February 8, 1994. Clearly, she did not fall within the provisions established under the act. Therefore, the trial court did not err in granting defendant’s motion for summary disposition as to plaintiff’s cause of action under the Paternity Act.
This language from Gomez has been interpreted by courts to mean that an illegitimate child has the same сommon law right to support from his father as a legitimate child, e.g., JMS v Benson (App, 1979),91 Wis 2d 526 ; 283 NW2d 465, 471; [6 ] and that an illegitimate child has a right to bring an action to determine paternity regardless of the existence of an authorizing state statute, e.g., State v Douty (1979), 92 Wash 2d 930, 934;603 P2d 373 ; Wynn v Wynn (Tex Civ App 1979),587 SW2d 790 , 793. [Johnson, supra at 189, n 3. (Emphasis and footnote added).]
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 maintenаnce, 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.
in
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 19V2 years old. We agree. On appeal, we reviеw a question of law de novo, Rapistan Corp v Michaels,
In Thompson v Merritt,
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 suppоrt 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 pеrsuasive 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,
IV
Finally, plaintiff on cross appeal contends that the trial court erred in denying her an award of attorney fees under MCL 600.2591; MSA 27A.2591 and MCR 2.313(C). We review under a clearly erroneous standard a trial court’s finding with regard to whether attorney fees should be awarded because a frivolous defense was presented. State Farm Fire & Casualty Co v Johnson,
Plaintiff asserts that defendant’s defense was frivolous in two ways: (1) at trial defendаnt 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 fees under MCL 600.2591; MSA 27A.2591.
Plaintiff also asserted that she was entitled to sanctions pursuant to MCR 2.313(C), which states in relevant part:
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 thе expenses incurred in making that proof, including attorney fees. The Court shaU enter the order unless it finds that
(3) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or
(4) there was other 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 “рrobability 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 “Defendant, 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 plaintiffs 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 MCR 2.313(C) for defendant’s refusal to admit a fact proved at trial.
Notes
At some point, the law must recognize the fact that a child’s interests in paternity litigation are much greater than the mother’s interest in continued support. “In addition to the right of thе child to receive support many other present as well as future rights of the child are involved, depending on the facts and circumstances of a specific case.” Wolfe v Geno [(On Remand),
Pursuant to
(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 August 15, 1984 and before June 2, 1986, or the family independence agency as providеd 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 may 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 befоre January 1, 1995. . . .
(10) If a determination of paternity is made under this act, the court may enter an order of filiation as provided in section 7. . . .
Other jurisdictions with statutes similar to our Paternity Act have held that an illegitimate child has no independent cause of action for paternity or support under the act. See, e.g., Johnson, supra at 189 (“[statutory paternity proceedings under R C Chapter 3111 are designed to provide a remedy for the mother, not the child”); GEB v SRW, supra.
MCL 600.5851(1); MSA 27A.5851(1) reads as follows:
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, 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 period of limitations has run. This section does not lessen the time provided fоr in section 5852.
See also anno: Right of illegitimate child, to maintain action to determine paternity, 19 ALR4th 1082, § 6, and cases cited therein.
The Supreme Court held:
[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that 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.
JMS, supra, was reversed by the Wisconsin Supreme Court in JMS v Benson, 98 Wis 2d 406, 413-415;
This is not to imply that whenever a putative father is faced with a paternity test yielding a probability of this magnitude, a denial of paternity is a basis for awarding sanctions.
Concurrence Opinion
(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,
With regard to the question of retroactivity, I аgree that the trial court erred in concluding that, 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 MCL 722.3; MSA 25.244(3) is silent with regard to the question of retroactive support and the Spada Court concluded that the general disability tolling provisions apply. Further, in Dep’t of Social Services v Brewer,