Serafin v. Serafin

Kavanagh, C. J.

Plaintiff sued for divorce and defendant filed answer and counter-claim. Only two witnesses were called to testify, husband and wife. Plaintiff’s attorney sought examination of plaintiff and cross-examination of defendant to show nonaccess of the husband to the wife to affect the legitimacy of the child born in wedlock.

Defendant’s assertion that such evidence could not be considered was accepted and plaintiff was ordered to support the child born after the parties separated. On plaintiff’s appeal to the Court of Appeals, that Court held that the refusal to consider plaintiff’s testimony disputing paternity violated his due process rights. 67 Mich App 517; 241 NW2d 272 (1976).

We are satisfied that the Court of Appeals reached the correct decision so we affirm, although we do not reach the constitutional question.

The evidentiary rule applied by the trial court to bar consideration of plaintiff’s testimony concerning nonaccess is commonly known as "Lord Mansfield’s Rule”. The rule was first uttered by Lord Mansfield in Goodright v Moss, 2 Cowp 591-594; 98 Eng Rep 1257-1258 (1777), an ejectment case:

"[T]he law of England is clear, that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage.

"As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious.”

This dictum was judicially incorporated into the law of this state in Egbert v Greenwalt, 44 Mich 245, 248; 6 NW 654; 38 Am Rep 260 (1880), where the court stated that "no judge or author has ever dissented” from Lord Mansfield’s "strong approval” of it.

Since the decision in Egbert, however, a growing number of authors and judges have expressed dissatisfaction with the rule.¹ Among the most vociferous in his objection to the rule is Professor Wigmore, who attacks the rule as having no true foundation in English case precedent at the time it was stated. 7 Wigmore on Evidence (3d ed), §§ 2063, 2064. Wigmore also condemns subsequent efforts to justify and explain the rule as "mere Pharisaical after-thoughts”, and he concludes that there are no perceivable policy reasons to maintain it. Wigmore, supra, § 2064.

We agree that the rule has outlived the policy reasons initially advanced to support it and, finding none others persuasive, we hold that a husband and wife may testify concerning nonaccess to each other.²

The policy considerations underlying the rule have never been totally clear in this state, but the court in In re Wright’s Estate, 237 Mich 375, 381; 211 NW 746 (1927), gave the following summary:

"The Mansfield rule, undoubtedly, lessens the number of public charges which would have to be cared for and supported by the public. It works for the peace and quiet of the family. It works for the peace of the community and society generally.

"In reviewing the many reasons given for the rule by its author, text-book writers and courts, we think the prime reason for the rule is as stated — that it is against public policy to permit parents to give testimony bastardizing their issue.”

We are satisfied that further adherence to Lord Mansfield’s Rule cannot validly be premised on the assertion that it operates to prevent increased enrollment on public welfare lists. But even assuming that it has such an effect, and apart from the due process objections that might be raised against such a policy, we say with the Supreme Court of Maine: "We are not persuaded that the public treasury should be protected by foisting upon a husband the support of a child obviously not his own.” Ventresco v Bushey, 159 Me 241, 249; 191 A2d 104, 108 (1963).

We are likewise no longer convinced that refusal to admit and consider the parent’s testimony of nonaccess, "works for the peace and quiet of the family”. Wright, supra.

As the court in Moore v Smith, 178 Miss 383, 392-393; 172 So 317, 320 (1937), pointed out, familial tranquility might be more readily destroyed by forcing a husband to support a child that in fact is not his, while protecting his wife and her paramour who engaged in extramarital activity in gross violation of the marital relation.

Additionally, the question of whether the husband is the father of a child often is not presented in court until support is sought during or after a divorce proceeding. At either point, attempts to guard the quietude of the home would seem to be somewhat late.

Neither is the peace of the general society fostered by continued adherence to Lord Mansfield’s rule. Rather, we are convinced, it is best fostered by lifting the veil of incompetency imposed upon a husband and wife by the rule. In our view the public peace and respect for the law are enhanced, not by arbitrarily assigning the duty of support to a man who is not the father of the child, but by allowing him to contest paternity by his best evidence. Moore, supra, 393-394.

The Texas Court of Civil Appeals expressed our viewpoint in Davis v Davis, 507 SW2d 841, 847 (Tex Civ App, 1974), rev’d on other grounds, 521 SW2d 603 (1975), where it stated:

"If the function of a court is to find the truth of a matter so that justice might be done, then a rule which absolutely excludes the best possible evidence of a matter in issue rather than allow it to be weighed by the trier of fact must necessarily lead to injustice. Further, when a court voluntarily blindfolds itself to what every citizen can see, the public must justifiably question the administration of law to just that extent.”

As noted in the Court of Appeals opinion in this case, 67 Mich App 517, 525-526; 241 NW2d 272 (1976), the United States Supreme Court has recently done much under the Equal Protection Clause of the Fourteenth Amendment to invalidate the arbitrary distinction drawn between illegitimate and legitimate children as regards substantive rights. See, also, Anno: Discrimination on Basis of Illegitimacy as Denial of Constitutional Rights, 38 ALR3d 613.

Our state law also has diminished the adverse consequences once attendant upon the status of illegitimacy. Michigan statutes now provide that an illegitimate may inherit from his or her mother, MCLA 702.81; MSA 27.3178(151). An illegitimate may be legitimated by the parents even absent their intermarriage, and if legitimated, the child then has "the identical status, rights and duties of a child born in lawful wedlock”. MCLA 702.83; MSA 27.3178(153).

The child is also guarded by the still viable and strong, though rebuttable, presumption of legitimacy. Maxwell v Maxwell, 15 Mich App 607, 617; 167 NW2d 114 (1969). We hold that, in order to rebut the presumption, clear and convincing evidence must be given.

We are satisfied that this policy best protects the interests of all concerned.

Affirmed, costs to plaintiff.

Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Kavanagh, C. J.

1 The following contain criticisms of Lord Mansfield’s rule: McCormick on Evidence (2d ed), § 67; Bell, Competency of a Husband and Wife to Testify as to Non-access, 21 Temp L Q 217 (1947); Note, The "Lord Mansfield Rule’’ as to “Bastardizing the Issue”, 3 Md L Rev 79 (1938). See Judge Levin’s opinion in Maxwell v Maxwell, 15 Mich App 607, 610, fn 4; 167 NW2d 114 (1969), for a more extensive citation.

Cases rejecting the rule are: Commonwealth ex rel Savruk v Derby, 235 Pa Super Ct 560; 344 A2d 624 (1975); In re L, 499 SW2d 490 (Mo, 1973); Ventresco v Bushey, 159 Me 241; 191 A2d 104 (1963); Vasquez v Esquibel, 141 Colo 5; 346 P2d 293 (1959); Loudon v Loudon, 114 NJ Eq 242; 168 A 840 (1933); Moore v Smith, 178 Miss 383; 172 So 317 (1937).

2 Among the cases which will be overruled, at least in part, by our holding are: People v Bedell, 342 Mich 398; 70 NW2d 808 (1955); Bassil v Ford Motor Co, 278 Mich 173; 270 NW 258 (1936); In re Wright’s Estate, 237 Mich 375; 211 NW 746 (1927); Yanoff v Yanoff, 237 Mich 383; 211 NW 735 (1927); King v Peninsular Portland Cement Co, 216 Mich 335; 185 NW 858 (1921); Rabeke v Baer, 115 Mich 328; 73 NW 242 (1897); Egbert v Greenwalt, 44 Mich 245; 6 NW 654 (1880).