Crego v. Coleman

591 N.W.2d 277, 232 Mich. App. 284

• Court: Michigan Court of Appeals
• Decided: January 15, 1999
• Docket: Docket 192798
• Status: Published

Opinions

Neff, J.

Pursuant to MCR 7.215(H), this special panel was convened to resolve the conflict between Crego v Coleman, 201 Mich App 443; 506 NW2d 568 (1993) (Crego I), and a later, vacated case involving the same parties, Crego v Coleman, 226 Mich App 815; 573 NW2d 291 (1997) (Crego II). At issue is the constitutionality of § 3 of the Paternity Act, MCL 722.713; MSA 25.493,¹ which allows the parties in a paternity action to reach a settlement barring future recovery or modification of child support. If not for the precedential effect of Crego I, the Crego II panel would have held the statute unconstitutional as violative of the equal protection guarantees of the United States and Michigan Constitutions. We agree with the analysis set forth in Crego II, and thus hold that MCL 722.713; MSA 25.493 is unconstitutional. Accordingly, we affirm the circuit court’s order denying rehearing of an order granting plaintiff’s motion for an increase in defendant’s child support obligation.

i

In October 1978, plaintiff filed a paternity action alleging that defendant is the father of her daughter, who was bom in August 1978. In 1980, the complaint was dismissed pursuant to a settlement agreement reached between the parties in which defendant agreed to pay weekly child support but did not acknowledge paternity. The trial court approved the terms of the settlement, as required by MCL 722.713; MSA 25.493, and ordered defendant to pay $20 a week in child support pending receipt of the friend of the court’s formal recommendation. A second order was entered on September 26, 1980, requiring defendant to pay $35 a week. This second order specified the parties’ intent that the support order be “not modifiable” and that the matter “shall stand settled, discontinued and dismissed” with respect to defendant. On January 30, 1981, after receiving the friend of the court recommendation, the court entered a third and final “permanent” order, which required defendant to pay $50 a week until the child’s eighteenth birthday “or until farther order of the court.” Unlike the two previous orders, however, this order was not signed by the parties, nor did their attorneys approve its form or substance.

In the early 1990s, plaintiff filed a motion to modify the child support order. The trial court dismissed plaintiff’s motion on the basis of res judicata. A divided panel of this Court affirmed, holding that the parties’ settlement agreement was binding and precluded a modification of defendant’s support obligation.² Crego I, supra at 447. The Court also rejected plaintiff’s claim that MCL 722.713; MSA 25.493 denies children bom outside marriage their constitutional right of equal protection of the law. Id. at 446.

Two years later, in Dones v Thomas, 210 Mich App 674; 534 NW2d 221 (1995), a different panel of this Court declared MCL 722.713; MSA 25.493 unconstitutional as violative of the constitutional guarantees of equal protection because it authorizes nonmodifiable child support awards in paternity actions, while child support awards in divorce actions always remain modifiable.³ Following the decision in Dones, plaintiff renewed her motion for modification of the support order. The trial court concluded that it was required to follow Dones, even though it conflicted with Crego I, as long as the parties were afforded an opportunity to resolve any issue regarding paternity with blood tests if they so desired.

Defendant appealed, arguing that Crego I was controlling and that MCL 722.713; MSA 25.493 does not violate the equal protection clause. The panel in Crego II agreed that Crego I was controlling, but stated that if it were not required to follow Crego I, it would find the statute unconstitutional.

n

Children have an inherent right to parental support. Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). For children bom in wedlock, but whose parents divorce or separate, our Legislature has provided statutory procedures to modify support orders. For example, MCL 552.17(1); MSA 25.97(1) provides:

The court may, from time to time after its issuance, on the petition of either of the parents, revise, and alter a judgment concerning the care, custody, maintenance, and support of some or all of the children, as the circumstances of the parents, and the benefit of the children require.

Moreover, it is well settled that in a divorce action, the court may modify a support order even if the parties had entered into an agreement regarding support. Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989); see also Wiersma v Wiersma, 241 Mich 565, 566; 217 NW 767 (1928) (“ ‘parents may not bargain away the children’s welfare, . . . [and] the court may always do what seems reasonable and necessary to protect the children’s rights’ ’’[citations omitted]). Similarly, children bom outside marriage who are the subject of a filiation order are permitted to seek modification of child support orders, despite contrary agreements between the parties. Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976); MCL 722.720; MSA 25.500.

In sharp contrast, the statute at issue here, MCL 722.713; MSA 25.493, provides as follows:

(a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.

(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.

Thus, children bom outside marriage who are not the subject of a filiation order are statutorily denied the right to seek modification of support orders, a right expressly granted to other children. Plaintiff argues that the denial of this right violates the constitutional guarantees of equal protection of the law. We agree.

in

The Equal Protection Clauses of the United States Constitution and the Michigan Constitution are coextensive, Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977), and provide that no person shall be denied equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. This constitutional guarantee requires that persons similarly situated be treated alike. El Souri v Dep’t of Social Services, 429 Mich 203, 207; 414 NW2d 679 (1987).

A

The first step in an equal protection analysis is to determine the appropriate level of judicial scrutiny. The reviewing court will use one of three tests, depending on the type of classification and the nature of the interest at issue. Where a statute creates an inherently suspect classification, such as race, alien-age, ethnicity, and national origin or affects a fundamental interest, the “strict scrutiny” test applies. Plyler v Doe, 457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982). Under this test, the statute will be upheld only if the state “demonstrate [s] that its classification scheme has been precisely tailored to serve a compelling governmental interest.” Id. at 217. The “rational basis” test is applied when the classification is not inherently suspect or a fundamental interest is not involved. Id. at 216. Under this test, the legislation is presumed to be constitutional and the party challenging the statute has the burden of proving that the legislation is arbitrary and thus irrational. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975).

Under the third, or “substantial relationship” test, a statutory classification will be struck down as unconstitutional unless it is “substantially related to the achievement of the important governmental objective.” Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 191; 387 NW2d 821 (1986) (emphasis in original). Without question, classifications based on illegitimacy are subject to this intermediate, or “heightened” scrutiny. Clark v Jeter, 486 US 456, 461; 108 S Ct 1910; 100 L Ed 2d 465 (1988); Spada v Pauley, 149 Mich App 196, 203; 385 NW2d 746 (1986). Therefore, we must determine whether the statute’s classification, which denies children bom outside marriage the right to seek modification of support on changed circumstances, is substantially related to an important state interest.⁴

B

The overriding purpose of the Paternity Act is to see that minor children bom outside marriage are supported and cared for. Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961). This Court has stated, “The announced public policy of this state is to treat children bom out of wedlock as no less deserving of support than those bom in wedlock.” Smith v Robbins, 91 Mich App 284, 289; 283 NW2d 725 (1979). We agree with the panel in Crego II that no “substantially related” state interest exists that would sustain the classification contained in MCL 722.713; MSA 25.493.⁵

l

In upholding the constitutionality of MCL 722.713; MSA 25.493, Crego I relied on the father’s interest in a final settlement of paternity matters. In the context of divorce proceedings, our Legislature has determined that the need to allow a modification of child support on a change of circumstances outweighs the need for settlement and finality. MCL 552.17(1); MSA 25.97(1). We see no difference between the state’s interest in settlement and finality in divorce proceedings and those same interests in actions under the Paternity Act that would justify treating children bom outside marriage any differently than children generally. Indeed, as noted in Crego II, supra at 821, “legitimate and illegitimate children do not differ in their potential for encountering circumstances that may increase their need for financial support.”

In Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973), the United States Supreme Court held that a state statute that granted legitimate children a judicially enforceable right of support from their natural fathers but denied the right to children bom outside marriage was unconstitutional as a violation of the guarantee of equal protection. In so ruling, the Court stated:

[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. For a State to do so is “illogical and unjust.” [Id. at 538.]

With this we heartily agree. MCL 722.713; MSA 25.493 provides that, unlike legitimate children, children bom outside marriage who are not subject to a filiation order may be foreclosed from future modification of child support, regardless of need. This disparate treatment of children bom outside marriage cannot withstand heightened scrutiny.⁶

2

We disagree with the dissent’s assertion that the circumstances present when a child is bom within marriage are objectively different in substance from the situation where a child is bom outside marriage because in the latter case there is no presumptive father. Children, whether bom within or without marriage, are the same with regard to their rights to support.

Further, as noted by Crego II, the factual determination of paternity is no longer a difficult credibility contest. Scientific advances regarding dna testing now provide for a quicker, easier, and more accurate method for establishing paternity. In fact, a statutory presumption of paternity exists if a blood or DNA test establishes a probability of paternity of ninety-nine percent or higher. MCL 722.7.16(5); MSA 25.496(5). With these advances, there is no longer a difference between the state’s interest in finality and settlement in paternity actions and divorce actions on the basis of difficulty of proof.

IV

Children bom outside marriage are no less deserving of support because of the circumstances of their birth than other children. If there is no limitation on the right of a legitimate child to seek modification of support, then there can be no such limitation on the same right for a child bom outside marriage. The disparate treatment between children bom outside marriage and legitimate children contained in MCL 722.713; MSA 25.493 violates the federal and state constitutional rights of a child bom outside marriage to equal protection under the law. Accordingly, we hold MCL 722.713; MSA 25.493 is unconstitutional, and we affirm the trial court’s order denying defendant’s motion for rehearing of the order granting plaintiff’s motion for modification of the earlier support agreement.

Affirmed.

Sawyer, McDonald, and Murphy, JJ., concurred.

1 MCL 722.713; MSA 25.493 was repealed by 1996 PA 308, effective June 1, 1997.

2 Judge Griffin dissented, opining that the language of the trial court’s final order allowed for modification. Crego I, supra at 448.

3 The Court in Dones did not mention the previous decision in Crego I.

4 Our dissenting colleague’s assertion that heightened scrutiny may not be the appropriate test is based on an earnest but strained attempt to distinguish the clear holdings of Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973), and Frame v Nehls, 452 Mich 171; 550 NW2d 739 (1996). In Frame, our Supreme Court held that a statute that made a grandparent’s right to seek visitation rights dependent on whether the child’s parents were involved in divorce proceedings was not subject to strict or heightened equal protection scrutiny because the statute did not discriminate on the basis of legitimacy of the child. Id. at 185. Only then did the Court proceed to use the “rational basis” test and find the grandparent visitation statute constitutional. Id. at 189. Unlike the situation presented in Frame, the discrimination of MCL 722.713; MSA 25.493 is clearly aimed solely at children bom outside marriage whose fathers have settled a paternity suit without acknowledging paternity.

The dissent’s position regarding the applicability of Gomez is similarly flawed. Whether MCL 722.713; MSA 25.493 contains provisions similar to the statutory scheme stmck down in Gomez is not the issue. Rather, the case stands for the modem position that statutes that result in disparate treatment of legitimate children and children bom outside marriage are unconstitutional. Indeed, as the Court itself stated, “[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.” Gomez, supra at 538.

5 We note our disagreement with the dissent’s focus on the effect of MCL 722.713; MSA 25.493 on mothers of children bom outside marriage. Although support payments are made to the mother, the right to receive support belongs solely to the child. Evink, supra at 175-176. Accordingly, the payment of support — or the denial of it — is a matter involving the equal protection rights of the child.

6 Other decisions of this Court have recognized that support may be modified in a paternity action when the order entered pursuant to the parties’ settlement agreement itself provides for future adjustments, such as including the proviso, “until further order of the court.” See Morrison v Richerson, 198 Mich App 202, 211; 497 NW2d 506 (1993); Van Laar v Rozema, 94 Mich App 619, 624; 288 NW2d 667 (1980). Unlike our dissenting colleague, we do not believe that a child’s equal protection rights should hang on so narrow a thread.