Weaver v. Weaver

Michigan Court of Appeals

Weaver v. Weaver

166 N.W.2d 4, 15 Mich. App. 15, 1968 Mich. App. LEXIS 771

CourtMichigan Court of Appeals

DecidedDecember 20, 1968

DocketDocket No. 3,574

StatusPublished

Cited by1 cases

This text of 166 N.W.2d 4 (Weaver v. Weaver) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weaver v. Weaver, 166 N.W.2d 4, 15 Mich. App. 15, 1968 Mich. App. LEXIS 771 (Mich. Ct. App. 1968).

Pincite

Opinion

Per Curiam.

On June 8, 1964, plaintiff obtained a judgment of divorce providing for child support. In September, 1966, she filed a petition in circuit court to amend the judgment to include support for a child, not mentioned in the support order, born to her on February 24, 1965, less than 9 months after the judgment of divorce was entered. The court dismissed the petition, holding that it lacked the power under CL 1948, § 552.17 (Stat Ann 1957 Eev § 25.97)¹ to grant the requested relief. In so holding the court relied on Havens v. Havens-Anthony (1953), 335 Mich 445, as authority.

In plaintiff’s petition to amend the judgment of divorce she alleged that for 2 months prior to the entry of the judgment she and defendant attempted a reconciliation which included the resumption of marital relations. She further alleged that within 9 months thereafter the child for whom she seeks support was born and is defendant’s child. Defendant does not deny these allegations but instead contends that the court lacked the power “to revise and alter a decree covering the paternity of a child not mentioned in the judgment of divorce.” In effect, defendant persuaded'the trial court that it was without power to establish the paternity of the after-born child under the authority of the statute conferring on courts the power to alter or modify [17]*17decrees concerning the care, custody and maintenance of children. Defendant’s position is well-taken and is supported by Havens v. Havens-Anthony, supra. However, plaintiff did not seek a determination of paternity but sought a modification of a support order and her petition was proper under CL 1948, § 552.17, supra. The above statute grants authority to courts to modify judgments of divorce to provide for support of children not mentioned in the judgment. West v. West (1928), 241 Mich 679.²

A denial of paternity may be a defense to a petition for modification of a support order but it should not be viewed as affecting the power of a court, vested by statute, to make such a modification. Whether or not defendant can effectively disclaim paternity has no bearing on the power of a court, when properly invoked, to modify support orders and in no way affects plaintiff’s right to a hearing on the merits.

Reversed and remanded for further proceedings.

R. B. Burns, P. J., and J. H. Gtillis and Corkin, JJ., concurred.

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Per Curiam.

On June 8, 1964, plaintiff obtained a judgment of divorce providing for child support. In September, 1966, she filed a petition in circuit court to amend the judgment to include support for a child, not mentioned in the support order, born to her on February 24, 1965, less than 9 months after the judgment of divorce was entered. The court dismissed the petition, holding that it lacked the power under CL 1948, § 552.17 (Stat Ann 1957 Eev § 25.97)¹ to grant the requested relief. In so holding the court relied on Havens v. Havens-Anthony (1953), 335 Mich 445, as authority.

In plaintiff’s petition to amend the judgment of divorce she alleged that for 2 months prior to the entry of the judgment she and defendant attempted a reconciliation which included the resumption of marital relations. She further alleged that within 9 months thereafter the child for whom she seeks support was born and is defendant’s child. Defendant does not deny these allegations but instead contends that the court lacked the power “to revise and alter a decree covering the paternity of a child not mentioned in the judgment of divorce.” In effect, defendant persuaded'the trial court that it was without power to establish the paternity of the after-born child under the authority of the statute conferring on courts the power to alter or modify [17]*17decrees concerning the care, custody and maintenance of children. Defendant’s position is well-taken and is supported by Havens v. Havens-Anthony, supra. However, plaintiff did not seek a determination of paternity but sought a modification of a support order and her petition was proper under CL 1948, § 552.17, supra. The above statute grants authority to courts to modify judgments of divorce to provide for support of children not mentioned in the judgment. West v. West (1928), 241 Mich 679.²

A denial of paternity may be a defense to a petition for modification of a support order but it should not be viewed as affecting the power of a court, vested by statute, to make such a modification. Whether or not defendant can effectively disclaim paternity has no bearing on the power of a court, when properly invoked, to modify support orders and in no way affects plaintiff’s right to a hearing on the merits.

Reversed and remanded for further proceedings.

R. B. Burns, P. J., and J. H. Gtillis and Corkin, JJ., concurred.

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Bluebook (online)

166 N.W.2d 4, 15 Mich. App. 15, 1968 Mich. App. LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-weaver-michctapp-1968.

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