Crego v. Coleman , 201 Mich. App. 443 ( 1993 )

201 Mich. App. 443 (1993) 506 N.W.2d 568

CREGO
v.
COLEMAN

Docket No. 139068.

Michigan Court of Appeals.

Submitted February 10, 1993, at Detroit. Decided September 7, 1993, at 10:15 A.M.

Robes, Woodford & Kobliska (by J. Stephen Robes), for the plaintiff.

Steven M. Jentzen, for the defendant.

Before: HOLBROOK, JR., P.J., and GRIFFIN and REILLY, JJ.

REILLY, J.

Plaintiff appeals as of right from a March 22, 1991, order dismissing, on the basis of res judicata, her motion for modification of a child support order.

Pursuant to a stipulation between the parties, the trial court by order dated July 10, 1980, dismissed plaintiff's paternity complaint after determining that adequate provision for support had been made. The trial court adopted the parties' agreement and ordered defendant to pay $20 a week until the friend of the court made its formal recommendation, and thereafter the recommended sum or $50 a week, whichever was less, until the child reached eighteen years of age.

On September 26, 1980, the trial court again determined that adequate provision for support had been made and, pursuant to the agreement of the parties, dismissed the cause "as to the question of paternity only,"^[1] and ordered defendant to pay $20 a week from July 10, 1980, to September 26, 1980, $35 a week thereafter until the friend of the court recommendation was received, and thereafter the amount of the recommendation or $50 a week, whichever was less, until the child reached eighteen years of age. The stipulation upon which the order was based stated "that it is the intent of the parties that the attached order is not modifiable," and "this matter shall stand settled, discontinued and dismissed against Kermit L. Coleman, defendant herein."

On January 30, 1981, after the friend of the court recommendation was submitted, the trial court entered a "permanent" order requiring defendant to pay $50 a week in support "commencing January 30, 1981, and continuing until said child attains the age of eighteen years or until further order of the court." Neither party nor their attorneys signed the order to approve its form or substance.

Although defendant could have consented to further modification of the settlement agreement to include the language "or until further order of the court," the record does not show that he did so.

Settlements are contracts and are governed by the legal principles applicable to contracts. Hisaw v Hayes, 133 Mich. App. 639, 642; 350 NW2d 302 (1984). In Hisaw, this Court rejected the equal protection argument raised on behalf of an illegitimate child and recognized the binding effect of a settlement in a paternity matter. Declining to follow Boyles v Brown, 69 Mich. App. 480; 245 NW2d 100 (1976), and relying on MCL 722.713; MSA 25.493, this Court held:

The right of an illegitimate child to equal protection of law does not justify depriving the alleged father of the right to a trial of a disputed question of paternity. We decline to follow Boyles, supra, to the extent that in a paternity settlement like that at issue here, it would permit a court to increase an alleged father's support obligation, albeit leaving him bound by his agreement to surrender his right to a judicial determination of paternity. Such a settlement cannot be modified, the only judicial remedy being rescission. [Hisaw, supra at 644-645.]

We believe Hisaw to be the better-reasoned opinion, and we choose to follow it. Likewise, we believe that Morrison v Richerson, 198 Mich. App. 202; 497 NW2d 506 (1993), is distinguishable. In this case, defendant never acknowledged paternity. The trial court determined, in its order dismissing the case pursuant to the stipulation of the parties, that adequate provisions for support had been made. The second order, again pursuant to stipulation, authorized payment in accordance with the friend of the court recommendation. The stipulation stated that "the attached order is not modifiable" and "this matter shall stand settled, discontinued and dismissed" against defendant. The third order, entered after dismissal, was without consent of the parties and, we believe, was without effect beyond stating the amount recommended by the friend of the court, which change had been agreed to by the parties in their stipulation.

MCL 722.713; MSA 25.493 specifically provides that the performance of the agreement after approval by the court bars "other remedies of the mother or child for the support and education of the child." That statutory bar prevents modification of the support order unless the parties provide for modification in the language of their settlement agreement.

Permission to modify has been found where the parties agreed that support should be paid "until the child reaches eighteen years of age or until further order of the court." Van Laar v Rozema, 94 Mich. App. 619; 288 NW2d 667 (1980). Although the language "until further order of the Court" was inserted in the order signed on January 30, 1981, nothing in the record suggests that phrase was agreed to by defendant, and plaintiff does not make that claim. The trial court had no authority to modify the parties' agreement by entering a support order that was inconsistent with the parties' settlement of the paternity action that had previously been approved by the court. MCL 722.713; MSA 25.493; Hisaw, supra. We conclude, therefore, that the phrase "or until further order of the court" in this case could not change the agreement made by the parties, and does not authorize later modification by the court.

The order of the trial court dismissing plaintiff's motion for modification is affirmed, although for reasons other than those stated by the trial court. Griffey v Prestige Stamping, Inc, 189 Mich. App. 665, 669; 473 NW2d 790 (1991).

Affirmed.

HOLBROOK, JR., P.J. concurred.

GRIFFIN, J. (dissenting).

I respectfully dissent. I would reverse on narrow grounds. At issue in this appeal is a 1981 circuit court order that specifically provides for modification by using the language "until further order of the court." Although defendant now contends that he never agreed to the language allowing for modification, there was no objection to the order when it was entered in 1981 and defendant never appealed.

An agreement to provide support for a child born out of wedlock requires approval by the court, MCL 722.713(a); MSA 25.493(a), and it is well settled that a court speaks only through its written orders. Tiedman v Tiedman, 400 Mich. 571, 576-577; 255 NW2d 632 (1977). Moreover, a judgment entered by consent is not a contract; rather, it has the same force and effect as a litigated judgment. Trendell v Solomon, 178 Mich. App. 365, 369; 443 NW2d 509 (1989). Because the order in this case allows for modification, the court was not barred from entertaining plaintiff's request for an increase in support. Compare Morrison v Richerson, 198 Mich. App. 202, 209-211; 497 NW2d 506 (1993).

NOTES

[1] The phrase "as to the question of paternity only" was handwritten after the printed language "is hereby dismissed as to Kermit L. Coleman, defendant herein." There is nothing in the order that indicates who added the language, when or whether it was approved by the court.