*1
v THOMPSON
THOMPSON
2, 1981,
June
at Detroit. Decided
No. 45011. Submitted
Docket
January
1982.
defendant,
Plaintiff,
Thompson,
divorced in 1971 from
Excell
support
pay
Thompson,
for
ordered to
child
Avetta
and was
children,
Following
including Tyrone Thompson.
three
Serafín,
abrogating
one of evidence and always applied prospectively only. such should be rules
Opinion of the Court Retroactivity. Changes — — 1. Trial Procedural Rule changes generally Procedural rule Application Prospective — — — 2. of Law Retroac- Courts Rules tivity. key a new rule law factors which determine whether (1) applied retroactively prospectively or are: [1, 2, [3] [4] Who wedlock. 53 4] Am Jur Witnesses 163. Am Jur 20 Am Jur may dispute legitimacy 2d, 2d, References ALR2d Evidence § 2d, Courts 85. 572. for Points § 9. § of child conceived or in Headnotes born during Opinion of the Court (2) rule; general of the new reliance on the old (3) rule; justice. effect the administration of — — — 3. Parent and Child Evidence Lord Mansfield’s Rule *2 Retroactivity. Rule, parties marriage The Lord Mansfield under which to a testify concerning cannot nonaccess when the issue is the paternity during marriage, of a child born their has been Michigan by Supreme Court; Supreme abolished in ruling allowing testimony prospective applica- Court such tion O’Brien, F. X. J. Concurrence — — — Retroactivity. 4. Trial Evidence Rules of Evidence Changes in rules of evidence based on should be prospective application only. P. Mark McLoughlin, plaintiff. Bronson, P.J.,
Before: and R. M. Maher and O’Brien,* F. X. JJ. P.J. The sole issue raised in this case
Bronson,
Serafin,
to which Serafin v
concerns the extent
In the case, instant the parties were divorced November 1971. Plaintiff was ordered to pay child support children, three including Tyrone Thompson. Following the decision plaintiff moved for relief from the order of requiring him to provide for Tyrone. Plaintiff con tended that Tyrone son, was not his as he had at the time of the original proceedings. divorce Based on a hearing conducted before the Friend of the judge, sitting Appeals by assignment.
* Circuit on the Court of Opinion Court plaintiff judge Court, trial concluded Consequently, Tyrone’s the court dis- father. not support obliga- any charged plaintiff further boy. however, refused, court tion give order modification that he Defendant contends retroactive effect. paid all for the the return of monies entitled to support Tyrone. reimbursement refused order trial court by plaintiff already paid because of the monies support. adversely the child’s Plaintiff affect ruling argues that trial court’s should be first has received ADC ben- reversed because defendant parties’ such, time divorce. As efits since the plaintiff’s gone support payments to the child (DSS). Department of Social Services Conse- respon- quently, DSS, defendant, would be plaintiff. By law, *3 sible for the reimbursement of to defendant future DSS could not refuse extend necessity reimbursing plain- the of benefits due to Dep’t Services, tiff. See v Evans Social (1970). App 633; NW2d 173 178 argument plaintiff’s reject first for full retro- We activity First, Court for two reasons. this legally treating differently justify who mothers receive ADC who do not for benefits those purposes Al announced in Serafin. rule though ordering retroactivity full in this a decision may consequences, case obviously there would have minimal severe results to a child whose required mother not on to was ADC and was who sup years her for of child reimburse ex-husband port. Second, that no adverse conse idea quences would befall the child in this case assumes deep depth. pocket that ever, How DSS is a of infinite show, is not an accurate recent events this expe- premise. Recently, across-the-board cuts were 119 v op Opinion the Court recipients. Any ruling rienced all ADC court requires expend which for DSS monies going of reimbursement is to result less funds to meet current needs. It is within the realm Michigan possibility, every then, of receiving that child in ultimately ADC benefits would be ad- adopted versely plaintiff’s position. if affected we argues Plaintiff next abolition of Lord merely imposed Rule in Mansfield’s Serafin new evidentiary controlling procedure rule which has bearing remedy. argues no He further if applicable rights, Serafin is to determine it equally applicable remedy. issue of
Whether or not a rule is or one substance procedure open dispute. However, is often as suming purposes of case this that Serafin merely replaces procedural another, rule one with disagree plaintiff’s analysis. we nonetheless with changed by Procedural rules court rule or other generally wise have effect re Estate, 552; 253 Donovan’s Mich NW Spangler, ALR Moore original 368; NW2d di Since judgment actually prior vorce rendered to the might decided, date Serafin was trial court give have refused to active effect. decision retro 528.3(5) provides However, judgment longer relief "it where is no equitable judgment prospec application”. tive An order of child continuing, prospective light effect. In inequitable would be to force an who ex-husband prove can that he is not the father of a child he *4 obligated support was to due to Lord Mansfield’s making support payments.1 Rule to continue 1 then, argued, It could be that we at least should order reimburse 24, 1977, ment of monies from Serafin October the date of the disagree inequitable decision. We because we do not to refuse deem App 112 Mich Opinion of the Court analyze in not this issue does brief
Plaintiff’s
generally
normal
considerations
of the
terms
resolving
controlling
an issue of
when
deemed
retroactivity.
purpose
the
These
are
considerations
rule,
the
and
rule, the
on
old
of
new
reliance
the
justice
impact
of
the
the administration
on
change
effect. Linkletter v
the
be
618;
1731;
Affirmed. J.,
R. M. Maher, concurred. plaintiff change of where he did not seek relief benefit law March, support of from the order until 1978. modification dispute April in made effective 1978. order Stewart, panel give this Court refused Serafin one of prior entered retroactive effect and determined to a order negated be We that defendant not after Serafin. note contending cross-appeal in case did file a no retroactive this Thus, be we need not address this effect should accorded Serafin. however, adopt unlikely, issue. It is troactivity that we the strict nonre would approach of in a in the issue was Stewart case which 528.3(5) body opinion, this raised. As noted in the provides aspects proposition authority light may permissibly Serafin. order modified *5 F.X. J. O’Brien, Concurrence (concurring). reject F. plaintiffs X. J. I O’Brien, recoup support contention that he is entitled to payments Department made to the of Social Ser- vices. agree my colleagues
I
with
that an ex-husband
prove by
convincing
who can
clear and
evidence
obligated
that he is not the father of a child he is
is entitled to
termination of
528.3(5).
obligation.
agree
I further
Serafin,
that Serafin v
401 Mich
629;