Pruitt v. Pruitt

282 N.W.2d 785, 90 Mich. App. 230, 1979 Mich. App. LEXIS 2152

• Court: Michigan Court of Appeals
• Decided: May 21, 1979
• Docket: Docket 77-4948
• Status: Published

Opinions

J. H. Gillis, J.

Bettie Pruitt filed a complaint for divorce against Samuel Pruitt. An amended complaint was subsequently filed joining defendant, Ernest Shannon, as a party and alleging that he is the father of two children born to Bettie Pruitt during the course of her marriage to Samuel Pruitt. Defendant Shannon moved for summary judgment pursuant to GCR 1963, 117.2(1). The motion was denied and defendant Shannon was granted leave to appeal by this Court.

Defendant argues that the trial court was without authority to bring him into a divorce action. We agree.

In divorce actions, the authority of the court to act is purely statutory. Flynn v Flynn, 367 Mich 625; 116 NW2d 907 (1962), Gray v Independent Liberty Life Ins Co, 57 Mich App 590; 226 NW2d 574 (1975). We know of no statute which provides for the determination of the paternity of a third party as part of a divorce proceeding.¹

The general rule in Michigan is that the court is without the power in divorce proceedings to litigate the rights of persons other than the husband or wife. Yedinak v Yedinak, 383 Mich 409; 175 NW2d 706 (1970). From this rule has been carved the exceptions set forth in Berg v Berg, 336 Mich 284, 288; 57 NW2d 889 (1953):

"It is claimed that the petitioner, the sister of the defendant, is not a proper party. It must be conceded that as a general rule * * * the husband and wife are the only parties to be recognized in a divorce case. There are exceptions. The prosecuting attorney may be required to appear and oppose a decree in any divorce case in which it appears to the court that public good so requires. CL 1948, §552.45 (Stat Ann §25.121). The State commissioner of revenue is ex officio the public guardian of every patient committed to a State institution, upon whom service of process is required in any proceeding against any patient detained in a State institution. CL 1948, § 330.21b (Stat Ann 1951 Cumm Supp § 14.811[1]). Third persons may be made defendants in an action for divorce where it is charged that such persons have conspired with the husband with intent to defraud the wife out of her interest in property.”

See also, Sabourin v Sabourin, 67 Mich App 100; 240 NW2d 284 (1976).

The instant case involves none of these exceptions. Furthermore, we are of the opinion that the nature of a paternity action involving a third party is such that it should not be made part of a divorce action.

A divorce proceeding is equitable in nature. St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210; 238 NW2d 806 (1975). Juries in chancery cases act in an advisory capacity only. White v Burkhardt, 338 Mich 235, 238; 60 NW2d 925 (1953). On appeal, the matter is reviewed de novo. Nickel v Nickel, 29 Mich App 25; 185 NW2d 200 (1970), Hutchins v Hutchins, 36 Mich App 675; 194 NW2d 6 (1971).

On the other hand, paternity proceedings are quasi-criminal in nature. Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976). The defendant may invoke the protection afforded in matters of procedure to one on trial for a criminal offense, including the right to a jury trial, the right to appointed counsel if the defendant is unable to afford one, and the protection against double jeopardy. Artibee, supra, People v McFadden, 347 Mich 357; 79 NW2d 869 (1956), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977). On appeal only errors of law may be considered, People v Martin, 256 Mich 33; 239 NW 341 (1931).

In light of the foregoing, we conclude there is no statutory authority to join a third party to a divorce proceeding for the purpose of adjudicating paternity. Further, it would not serve the convenient administration of justice to do so.

Reversed and remanded for entry of summary judgment in favor of defendant Shannon. No costs, a public question being involved.

R. B. Burns, P.J., concurred.

1 In Gallison v Gallison, 5 Mich App 460; 146 NW2d 812 (1966), paternity was determined in the course of an annulment proceeding. However, that was only a two-party proceeding and the Court relied upon MCL 552.16; MSA 25.96, which provides in part as follows:

"Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain.”

While this statute may give the court authority to make a determination of paternity where the parties are involved in the annulment or divorce itself, we fail to see how it gives the court the authority to bring a third party into the divorce proceedings.