283 N.W.2d 809 | Mich. Ct. App. | 1979
STEWART
v.
STEWART
Michigan Court of Appeals.
Landman, Hathaway, Latimer, Clink & Robb (by Alvin D. Treado), for plaintiff.
Mark C. Meyer, Legal Aid of Western Michigan, for defendant.
Before: MacKENZIE, P.J., and D.E. HOLBROOK, JR. and CYNAR, JJ.
D.E. HOLBROOK, JR., J.
Plaintiff appeals by right the trial court's October 23, 1978, dismissal of plaintiff's petition for termination of paternity and/or child support.
*604 The parties were married in Michigan on February 19, 1972. Plaintiff filed for divorce on March 24, 1975, and in the complaint for divorce plaintiff stated that Kimberly Ann Stewart, born July 23, 1973, was the one child born of the marriage. In his motion for temporary support, custody and interim property settlement, filed on March 24, 1975, plaintiff alleged that Kimberly Ann Stewart was a child of the parties. Plaintiff consented to the entry of a March 24, 1975, order for temporary support, custody and interim property settlement, and a modification thereof, dated July 17, 1975, which stated that Kimberly Ann Stewart was the minor child of the parties. Plaintiff also petitioned for and consented to a September 29, 1975, judgment of divorce which named Kimberly Ann Stewart as a child of the parties.
On June 30, 1978, plaintiff petitioned the court for an order determining paternity and/or terminating support, and in support thereof stated that plaintiff believed that the child was not born of the marriage for the reason of his nonaccess to defendant during the time of conception, admissions as to his nonpaternity by defendant to plaintiff, and admissions by defendant to third parties as to plaintiff's nonpaternity. Plaintiff requested a hearing be set to determine plaintiff's nonpaternity of the child. The trial court dismissed plaintiff's petition because of plaintiff's reference to the child as the child of the parties in the motion for temporary support, the order for temporary support, and the ultimate judgment of divorce, and because plaintiff sought to make Serafin v Serafin, 401 Mich. 629; 258 NW2d 461 (1977), retroactive.
Lord Mansfield's Rule was judicially incorporated into Michigan law in Egbert v Greenwalt, 44 Mich. 245; 6 N.W. 654 (1880). The rule was first *605 uttered by Lord Mansfield in Goodright v Moss, 2 Cowp 591-594; 98 Eng Rep 1257-1258 (1777), which was a rule of evidence that parties to a marriage could not testify concerning nonaccess when the issue is paternity of a child born during their marriage. This rule was abolished in Michigan in Serafin v Serafin, although the Supreme Court held that a child is guarded by the still viable and strong, though rebuttable, presumption of legitimacy.
There are a number of reasons for this Court to affirm the trial court's dismissal of plaintiff's petition. First, we decline to make Serafin retroactive. Key factors which determine whether a new rule of law should be applied retroactively or prospectively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. The reliance on Lord Mansfield's Rule in Michigan for nearly 100 years and the possible devastating effect of retroactivity on the administration of justice discourage this Court from applying the abolishment of the rule retroactively.
Second, res judicata bars plaintiff from disestablishing his paternity. Baum v Baum, 20 Mich. App. 68; 173 NW2d 744 (1969). Moreover by plaintiff's own actions and conduct, in acknowledigng the child as his own throughout the entire divorce litigation, we hold his present claim to be barred by the doctrine of estoppel.
Accordingly, the trial court is affirmed.
Affirmed. Costs to appellee.
