Serafin v. Serafin

v Serafín 1976] v SERAFIN SERAFIN Opinion Support

1. Mаnsfield’s Rule— Divorce —Child —Bastards—Lord Law —Due Process. Constitutional by plaintiff paternity who In a suit for divorce husband denied rule, child, application of a of Lord Mansfield’s which provides permitted that neither husband nor wife will be marriage by testifying the wife after bastardize issue of husband, unconstitutionally property of the takes nonaccess process from the without due of law wherе prevents plaintiff introducing of the rule from his own evidence presumption legitimacy pre- and makes the an irrebuttable sumption. Presumptions—Arbitrariness—Constitutional 2. Statutes — Law —Due Process. creating presumption arbitrary oper-

A statute that is or that deny opportunity repel ates to a fair violates due process clause of the Fourteenth Amendment. 3. Descent and Distribution —Bastards—Inheritance—Statutes. preventing illegitimate

The common law rule inheritance an abrogated by child from his or her mother has been statute (MCLA702.81; 27.3178[151]). MSA Legitimation 4. Bastards — of Child —Descent and Distribution— Statutory Inheritance —Statutes. illegitimate may legitimized by An child be his or her father and (MCLA may statutory 722.717; equally share inheritance MSA 25.497). ^[1] [2] [3, [5] [6, 16 Am Jur 10 Am Jur 10 Am Jur 7] 5 Am Jur 10 Am Jur 2d, 2d, 2d, 2d, Appeal References Bastards Constitutional Law Bastards 2d, Bastards and Error § §§ for Points 30. 67-73. §§ 45-59. §§ §§ in Headnotes 691-701. App 67 Support—Paternity 5. Bastards — Act —Statutes. may granted his or illegitimate her An child (MCLA seq.; 722.711 et paternity MSA father act under the seq.). 25.491 et by Danhof, P. J.

Dissent Appeal Mansfield’s 6. and Error —Bastards—Evidence—Lord Precedent. Rule —Courts—Case Michigan Supreme precludes Controlling precedent by Appeals. the Court of rule alteration of Lord Mansfield’s Lеgitimation 7. Mansfield’s Rule — Evidence —Bastards—Lord Rationality Test. Child —Constitutional Law — places a before hus- Lord Mansfield’s hinderance that child, band, prove father of not he is who seeks to great, decency, policy morality so nor are the interests insignificant, arguably by that the served the rule so test rationality by mere met adherence Lord Mansfield’s is not rule. Appeal 8. Brief —Issue Abandonment. and Error —Failure an of that Failure to brief an issue constitutes abandonment issue appeal. on Kaufman, J. Sub- Wayne, Charles

Appeal (Docket 10, 1975, at Detroit. No. mitted November 23915.) 26, February ap- Decided 1976. Leave to peal applied for.

Complaint against Donald Serafín Gloria Judgment for divorce. of divorce Jean Serafín granted. portion from thаt appeals Plaintiff pay support. which ordered him to child judgment Reversed and remanded.

Milmet, Vecchio, Kennedy Carnago, & P. C. (by Fellrath), for plaintiff. ‍‌‌​​‌​‌‌​‌‌​​​​‌‌​​​​‌‌​‌‌​​​​‌‌​​‌​​​​‌​‌​​​‌‌​‍Richard F. Thomson, for

James defendant. McGregor J.,P. Danhof, Before: and N. J. JJ. Kaufman, Serafín Opinion of the Court Plaintiff, Kaufman, Serafín,

N. J. Donald J. ap- peals judgment Wayne rendered County Circuit Court in a divorce action which he filed defendant, against Serafín. Gloria Plaintiff filed 6, сomplaint August 1973 and alleged a marriage relationship. breakdown of the Plaintiff alleged that parties separated had and ceased August cohabitation on or about On Au- 30, 1973, gust requested entry of a default judgment against defendant failure to timely file an answer. 5, 1974, however, April

On filed an complaint amended which contained the following clause: place "In the Paragraph instead of alleges Plaintiff during

as follows: that parties the time the lived and together cohabited as husband and wife until filing complaint of this amended there were no children born a parties result of cohabitation hereto. How- ever, Plaintiff variably is informed and believes that a child was born to defendant wife in October of 1973. Your Plaintiff denies filiation and paternity of said uрon child based non-cohabitation and non-access.” Plaintiff requested the friend of the court to report. make final report This was filed on 22, August 1974. The report noted the existence of one seven-month-old child named De Angela, born 24, 1973, on October who living was with defend- ant. The report defendant, further noted that in a statement, sworn had plaintiff said that was the child, father of this but thаt plaintiff pater- denied nity. report that, also stated according to Gloria, defendant separation date of was Octo- ber, 1972; while according plaintiff Donald, to separation 31, date of September was 1971 [sic]. 12, September On 1974 defendant filed an an- op alleged correct date of that the in which she swer separation January, and claimed that was deposi- pretrial plaintiff tion, cerning At a her child. fathered testimony give any con- to refused defendant child, that she and stated the birth unwilling Plaintiff testi- test. take a blood was fied that he was to July 10, on defendant

married to with he had cohabited that the last time and his air force base to her was when he came plain- September, visit, this 1972. After visit her in residence”, testified, his "base of tiff and he returned time. wife since that he had seen his that other than month Plaintiff testified May September he in one week in when visiting”, August in one week "was home court”, he had been "sta- he "was here when tioned at Baudette Station Minne- Air Force during years 1972 and 1973 and "had sota” not left there for

any reason”. Plaintiff testified during job NCO this at the Club that he also had period occupied of his free time. most which during the testified that months Plaintiff January December, 1972, 1973 he at was "duty on base”. Plaintiff also testified his station three-day passes any no or other that he had "had during January, passes the month of 1973”. To knowledge, testified, had no there been marriage of his defendant. children born she Defendant testified that was married sepa- July 10, 1971, and that she had January husband in of 1973. One rated from her child, marriage Angela Serafín, Rene was born of this De 24, 1973. testified

on October Defendant gone January of she to and that in had plaintiff stayed Falls, at International had to her. from his base see cross-examina- driven tion, On testified that taken defendant this visit had January, place the middle of Serafín Opinion of the Court Defendant further testified that the only time she and plaintiff had had reconciliation after October, pеriod three-day 1972 was the around ‍‌‌​​‌​‌‌​‌‌​​​​‌‌​​​​‌‌​‌‌​​​​‌‌​​‌​​​​‌​‌​​​‌‌​‍15, 1973, of January consisting days three and two testified, time, nights. All this defendant she had motel, stayed except in the when she "walked to claimed dimestore and back”. She that she had at no during gone time this weekend to the Bau- base, Air plaintiff dette Force and that had come time, to see her "on when off-duty he was not at his work”. rebuttal, plaintiff again

On claimеd that he had not seen September, defendant after 1972. Plaintiff sought to have the court order defendant to have a test, blood but the court denied plaintiff’s motion. court, granting the divorce and requiring plaintiff to pay support, child stated: course, testimony parties, "The can’t be used illegitimatize only a child. The testimony of the plaintiff duty is to the effect that he was all time. The deny defendant doesn’t testimony that. Her up that she during period was there of time that he could have period fathered this child. It is within the gestation, being some nine January months from October. Just about nine months. Actually, just slightly find, over. So I would upon have based what is before posture time, Court and the plaintiff of the law at this that is the father custody and order that child be awarded to the defendant wife until the child age eighteen attains the and that hus- pay plus medical, band the sum of a week $21.00 dental hospital expenses until age the child attains the I majority and will order privi- reasonable visitation leges to the (Emphasis husband.” supplied.) From the emphasized portion, appears trial court admitted into plaintiff’s evidence testi- mony he had not seen defendant after either App 522 517 67 Mich Opinion Court of September October, did not consider but 1972 or determining paternity. testimony In so this doing, on Lord Mansfield’s court relied trial provides which that: rule permitted, as will a nor wife "neither husband witness, of the wife after mar- the issue to bastardize of the husband. riage by testifying to the nonaccess (38 260) Greenwalt, Rep 245 Am v 44 Mich Egbert [6 Case, 171 Mich 282 NW (1880)]; People v 654 [137 NW 55 375, Estate, 379; 237 (1912)].” Wright’s Mich In re (1927).1 746 211 NW plaintiff application rule which this It is assigns appeal. trial, heAs did at as on error plaintiff rule’s vio- contends process clauses United States lated due Michigan Const, XIV, Am US Constitutions. and responds by 1, 1963, § Defendant § art Const Michigan appel- citing in which a number of cases upheld rule, Lord Mansfield’s late courts have some shortcomings. despite recognition of its their appli- agrеe hold that the We with unconstitutionally Mansfield’s rule cation Lord process property took from without due We not unmindful of those cases cited law. defendant plaintiff are upheld challenged by which today. they find, however, that did not process challenge rule. due consider most recent challenge to the rule considered 1 (1927), Yanoff, 383; companion 735 Yanoff v 237 Mich 211 NW Estаte, Wright’s to In re stated that Lord Mansfield’s rule case prohibits testifying wife as "access the husband or to both or husband, antenuptial postnuptial”. 237 Mich nonaccess 389. or at (Emphasis supplied.) We view as a of the law. this misstatement Michigan jurisdic prior Neither or later cases nor cases from other prohibit testimony purpose, legitimize toas access. The rule’s tions children, prevent certainly testimony to access. would See Bedell, (1955), 398; People Mich v 70 NW2d 808 Maxwell v Maxwell, 607, 611, 7; (1969), fn lv den NW2d 114 381 Mich Serafín v companion in the made Supreme was our Estate, supra, and Yanoff Wright’s of In re cases (1927). In Yanoff, both 211 NW well settled to be cases, "too rule was deemed upheld public policy disturbed”, Id, at Court, v Max- Maxwell this Similarly, grounds. (1969), lv 607; 114 well, 167 NW2d App 15 Mich considered, (1969), and rejeсted, 381 Mich 815 den rule. to the challenges only policy Wiseman, 63 v People Recently, (1975), did this Court consider 137; 234 NW2d Wiseman, defendant In process objections. due 645; Illinois, US 92 S Ct v Stanley relied (1972), a case which struck 1208; Ed 31 L 2d presumption. statutory a irrebuttable down the because argument this panel rejected Wiseman is The Court rebuttable. legitimacy presumption noted: proof that prohibit not all rulе does "Lord Mansfield’s child, only but the is not the father wife as to nonaccess.

testimony of him and his former evidence, parties to testimony of third as such Other tests, or the results of blood whereabouts defendant’s could Id, disprove paternity.” at be him to used its Parenthetically, panel the Wiseman allowed rule Lord Mansfield’s to circumvent parties panel that testi- Although held stipulation. inad- as to non-access was mony by party either non- missible, parties stipulate to to it allowed access. Illinois, supra, v agree Stanley However, ex- rule law need not

controlling. a presumption to contrary all evidence to a clude v infirm. Chambers constitutionally e.g., See found 2d 284; 1038; 35 L Ed 410 US 93 S Ct Mississippi, (1973), hearsay of a where App 517 67 Mich process was found notwithstanding to violate due the fact could have used that defendant ‍‌‌​​‌​‌‌​‌‌​​​​‌‌​​​​‌‌​‌‌​​​​‌‌​​‌​​​​‌​‌​​​‌‌​‍other impeach testimony. evidence certain See also Hudnutt, 358, 365; Gile v NW 706 (1937), a rule preventing which noted that of law a party from favorable introducing evidence would deprive would, him a fair effective trial thus, long It process. violate due has been the law that:

"A creating presumption statute is arbitrary operates or that deny opportunity fair repel process violates due clause of Fourteenth Georgia, Manley Amendment.” 215; 279 US S49 Ct omitted.) (Citation L73 Ed 575 (Emphasis supplied.)2

While we do not dispute validity and ration- ality of the common presumption law legiti- macy, we find that supporting reasons application of Lord Mansfield’s rule are not suffi- cient to overcome the tremendous hardship result- ing application from its in the instant case. We must, thus, disagree with the Wiseman panel which concluded: "The hinderance that challenged the rule of evidence

places plaintiff great, before not is so nor the are 'decency, interests of policy morality’ arguably insignificant, served rationality the rule so the test mere of not is met adherencе to Lord Mansfield’s 63 rule.” Mich at 140. case,

In the instant the hinderance caused by 2 theory frequently This been presumption has used in irrebuttable e.g., Donnan, 312; See 358; cases. Heiner v 285 US 52 S Ct L76 Ed (1932), Rash, Carrington 89; 775; 772 v 380 US 85 S Ct 13 L Ed 2d 675 (1965), (1973). Kline, 441; 2230; Vlandis v 412 US 93 S Ct 37 L 2d 63 Ed 525 v Serafín Opinion of the Court significant most The rule is fatal. challenged own testi- evidence available it, absolutely vulnerable he is mony. Without his wife con- he claims of which evidence aсcess husband would knowledge that her in cocted was test not availa- it. A blood unable to rebut and, available, proved conclu- may if not have ble father. Pre- was sively introducing his own evidence venting a party from fundamental fair- runs to basic tenets contrary ness, dispo- crucial to a excluding evidence does The controversy. sition the issue presumption Lord made Mansfield’s We never legitimacy presumption. irrebuttable an Mroczkowski, v so, Wechsler 351 intended to be (1958), Magarell v 489; 88 NW2d 394 372, 376; 41 NW2d 898 Magarell, longer cogent no rule is rationale The rule was neces- enough to these results. justify illegiti- formulation because sary at time of its and were with- legitimized mates could not become legal Superior Pennsyl- As the Court of rights. out Com- rule, overturning vania noted recently Derby, monwealth rel Savruk v 624 ex 344 A2d (Pa 1975), Super, decisions of the United States Supreme have ameliorated much of e.g., Jime- stigma See legal disabilities. social 2496; L Weinberger, nez v 628; 417 94 S Ct 41 US (social (1974) 363 bene- security disability Ed 2d Organization v Jersey Rights New Welfare fits), Cahill, 619; 1700; 36 L 93 S Ed 2d US Ct (workmen’s (1973) benefits), Gomez compensation Perez, 535; 872; S L Ed 2d US Ct (1973) father), (right biological Co, Casualty Surety v Aetna & Weber 406 US (workmen’s (1972) 1400; 31 L Ed 768 92 S Ct 2d Illinois, 405 US benefits), Stanley v cоmpensation App 517 526 67 Mich (1972) ‍‌‌​​‌​‌‌​‌‌​​​​‌‌​​​​‌‌​‌‌​​​​‌‌​​‌​​​​‌​‌​​​‌‌​‍645; 92 1208; S L Ed 2d 551 (right Ct 31 Louisiana, 68; 391 father custody), Levy US 88 (1968) 1509; (wrongful S Ct 20 L Ed 2d 436 death benefits), Glona v American Guarantee & Liability Co, 1515; 73; S Insurance 391 US 88 Ct 20 L Ed 2d (1968). Vincent, 441 401 532; But see Labine v US (1971). 1017; 91 S Ct 28 L Ed 2d 288 In law Michigan, preventing the common illegitimate inheritance an from his or her statute, abrogated mother been has MCLA 27.3178(151). 702.81; MSA An illegitimate child be may legitimized by his or her father and may share statutory inheritance equally, MCLA 722.717; Estate, MSA 25.497. In Harper’s re (1935). illegitimate NW An child may seek from his or her father act, under paternity PA MCLA seq.; 722.711 et MSA 25.491 seq. et It is rights feared that of the child will not court, be adequately represented. The trial presumption of legitimacy and the intervention the state subsequent in this and proceedings all to represent serve such interests.

It would be foolish court any establish a values, hierarchy of to weigh the interests of liti- gants process in due and fundamental fairness against the interest of a child in or legiti- her macy. Fortunately, we do not have to do so. The strong presumption of legitimacy a sig- serves as protection nificant of the child question. See Maxwell, Maxwell v supra, at 616-617. gener- See Estate, In ally re Wood 278, 292-293; great NW2d A deal of evidence is re- quired to overcome this presumption. alleged father must allowed to introduce his evi- best dence. note in conclusion what we perceive to be v Serafín strength holding. the of the Given

the effect of our presumption legitimacy, will there be little parents will not be that effect on the basic testimony, solely by their a child bastardize able Co, King Cement Portland Peninsular further that our note We 185 NW 858 holding this case. We facts of are to the is limited overturning Rather, rule. we Mansfield’s Lord application rejecting that where its are purpose beyond injustice of the rule. the far works rejection Any sweeping alteration, or reaffirma- Legislature or from the must come tion of the rule request Supreme for a We reaffirm Court. expressed this Court in Maxwell v new review supra. Maxwell, our concern over the reaffirm plethora shortcomings over the the rule аnd litigation. in matrimonial difficulties inherent of no-fault application after the advent Both before and 25.86, divorce, 552.6; MSA MCLA rule has caused confusion and Lord Mansfield’s of duplicity. problems have most trouble- been These sepa- wife had in where husband and some cases prior many years in to the divorce. Often rated had, interim, cases, with wife in the lived such other Before that a into court faced children her. men who had fathered divorce, no-fault was well established plaintiff in a suit for divorce had to come were, thus,

with clean hands. Courts suing living adultery, wife, in for with a would be clear on the face divorce. This complaint, complaint. In her she would state that living apart had been she and her husband many years and that several children had been Waynе she had last seen her husband. born since response County’s hands to circumvent the clean problem recom- was to have the friend of court custody or be that no order of mend 67 Opinion of the Court entered, hope that wife would biological father. This ultimately marry "code” would inform the trial court the defendant husband biological was not the father the chil- Thus, knowledge dren. despite the court’s court, legitimately was not divorces would granted:

No-fault problem, divorce has vitiated this but a more cases, serious one remains. In thousands of though even biological living father is with the children, wife and he cannot be forced to support husband, legal children. The wife’s however, be. can This unfortunate situation is created by act, the interaction of paternity 1956 PA MCLA seq.; 722.711 et MSA 25.491 et seq., act, support 1966 PA MCLA 552.451 et seq.; 25.222(1) MSA et seq., and Lord Mansfield’s rule. The paternity provides act for illegitimate children only where they wedlock, are born out of i.e., at a time when the mother is not legally married, 722.711; MCLA MSA 25.491. The support act legal uses the presumption of legitimacy to deem legal biological husband the father and require him support to the children. The presump- plus tion Lord prevents Mansfield’s rule the hus- proving bands from that his wife’s children are not his, prevents agencies state from collecting biological from the father.

Consequently, stops husband paying support, the biological father can’t be forced to pay, and the mother ends up on welfare or aid dependent to children. Where the biological father seeks adopt children, often thе legal father cannot be found to give his consent. problems Similar occur in the areas of compensation, workers’ ‍‌‌​​‌​‌‌​‌‌​​​​‌‌​​​​‌‌​‌‌​​​​‌‌​​‌​​​​‌​‌​​​‌‌​‍un- employment compensation, social security and tax Serafín v Danhof, P. J. Dissent soon may the laws that hope deductions. realities. practical with changed comport consist- proceedings Reversed and remanded plaintiff. oрinion. with this Costs ent J., McGregor, concurred. (dissenting). I affirm the would P. J.

Danhof, Lord Mansfield’s rule trial court’s Wiseman, People v forth for the reasons set Also in App 234 NW2d Maxwell, 607, 618; 15 Mich Maxwell den, (1969), lv (1969), NW2d Justice) (now what Levin discussed Judge then He con- rule in detail. as Lord Mansfield’s known opinion as follows: cluded State, "However, the law of this if that is to become precedent modify which con- Supreme Court must judge trial and which trolled deliberations ours as well.” controls

Hence, any change as I must such conclude accomplish be made should majority wishes Supreme of this state. by denial appeals the trial court’s also at to order defendant request trial authority test. The cites no take a blood here, I nor do request of such a made issue, I this any. Having failed brief perceive Mitcham appeal. consider abandoned would Detroit, 182, 203; 94 NW2d 388 Therefore, opinion. I from the majority dissent

Case Details

Case Name: Serafin v. Serafin

Court Name: Michigan Court of Appeals

Date Published: Feb 26, 1976

Citation: 241 N.W.2d 272

Docket Number: Docket 23915

Court Abbreviation: Mich. Ct. App.