Tune v. Blaney

348 N.W.2d 19, 132 Mich. App. 759

• Court: Michigan Court of Appeals
• Decided: March 20, 1984
• Docket: Docket No. 64481
• Status: Published

Opinions

M. J. Kelly, P.J.

Plaintiff appeals as of right a decision of the trial court holding that plaintiff had failed to establish defendant’s paternity by a preponderance of the evidence. Plaintiffs child was born April 4, 1979, and the paternity hearing was conducted on April 15, 1982.

Prior to the hearing, plaintiff moved for the admission of the results of Human Leukocyte Antigen (HLA) blood tests indicating a 91% probability that defendant was the father of plaintiffs child. The trial court denied plaintiff's request under MCL 722.716(d); MSA 25.496(d), which, at the time of the hearing, prohibited the admission of all blood test results to show inclusion of a defendant in the class of potential fathers. See also Klein v Franks, 111 Mich App 316; 314 NW2d 602 (1981); Cardenas v Chavez, 103 Mich App 646; 303 NW2d 3 (1980), lv den 414 Mich 928 (1982).

Effective five days after the hearing, however, on April 20, 1982, MCL 722.716; MSA 25.496 was amended as follows:

"(4) The result of a blood or tissue typing test, and if a determination of exclusion of paternity cannot be made, a calculation of the probability of paternity made by a person the court determines is qualified as an examiner of blood or tissue types based on the result of a blood or tissue typing test shall be admissible in evidence in the trial of the case.”

Plaintiff argues on appeal that under the rules regarding retroactive application of amended statutes, she must be granted a new hearing in order to introduce evidence of the HLA blood test results. We disagree.

While we recognize that statutes pertaining to procedural matters are generally given retroactive effect, the rule of retroactivity does not require remand solely because a relevant procedural statute is amended after the conclusion of trial. The cases cited by plaintiff in support of remand can be distinguished on this ground. In Tulkku v Mackworth Rees Div of Avis Industries, Inc (On Remand), 101 Mich App 709; 301 NW2d 46 (1980), lv den 411 Mich 897 (1981), this Court held that a new products liability statute should apply to an action remanded for new trial by the Supreme Court on another, unrelated issue. In McAvoy v HB Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), and in Sherberneau v Metropolitan Life Ins Co, 44 Mich App 339; 205 NW2d 213 (1973), retroactive application of a statute was an issue below. In Denham v Bedford, 407 Mich 517; 287 NW2d 168 (1980), and in Selk v Detroit Plastic Products, 120 Mich App 135; 328 NW2d 15 (1982), one party challenged the retroactive application of a statute which, it was argued, had an effect on some substantive right. The Courts in these cases found that the challenged statute affected only a remedial or procedural right and was therefore to be retroactively applied. None of the above cases stand for the proposition that post-trial amendments to procedural statutes automatically require remand for a new trial.

In this case, neither party challenged the validity of the statute at trial nor did the trial court erroneously construe or apply it. We thus hold that the trial court did not err in excluding evidence of the defendant’s blood type at trial and we decline to remand on the basis of the amended statute alone.

Because we find no need to remand for a new hearing, we decline to address the technically moot issue of whether defendant’s failure to answer plaintiffs interrogatories precludes him from testifying at trial. GCR 1963, 302.2(1). Defendant did not answer plaintiffs interrogatories but neither did he testify at trial.

Finally, we cannot say that the trial court’s findings leave us with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Precopio v Detroit, 415 Mich 457, 462; 330 NW2d 802 (1982). Defendant’s mother testified at the hearing that plaintiff had admitted on at least two occasions that she was uncertain of whether defendant or another man was the father of her son. Matters of witness credibility are best left for the trier of fact. GCR 1963, 517.1.

Affirmed.

R. I. Cooper, J., concurred.