Sager v. Borczak

Per Curiam.

This appeal involves attorney fees in a paternity case. The plaintiff, Laurie Lynn Sager, was represented by the St. Clair County Prosecuting Attorney in the paternity action against Louis Anthony Borczak, Jr. Upon a finding of paternity, the prosecutor petitioned for costs and attorney fees of $913.75 ($35 per hour for 19-1/4 hours). MCL 722.717(b); MSA 25.497(b). The circuit court determined that the prosecutor is not entitled to attorney fees under the terms of the Paternity Act. We reverse and remand.

The Paternity Act provides:

"the order [of filiation] shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement; for the funeral expenses if the child has died; for the support of the child prior to the making of the order of filiation; and such expenses in connection with the pregnancy of the mother or of the proceedings as the court deems proper.” MCL 722.717(b); MSA 25.497(b) (emphasis added).

We accept the dicta of another panel of this Court that nothing in the statute quoted indicates that a prosecuting attorney’s expenses are not covered by the "expenses of proceedings” section. Oviedo v Ozierey, 104 Mich App 428, 430; 304 NW2d 596 (1981). The statute does not require that the "expenses * * * of the proceedings” be the mother's expenses. The statute makes no distinction between retained counsel and representation by the prosecutor. In fact, a 1962 amendment to the Paternity Act deleted language which allowed attorney fees only to the prosecutor. 1962 PA 238. See Whybra v Gustafson, 365 Mich 396; 112 NW2d 503 (1961); Houfek v Shafer, 7 Mich App 161, 171; 151 NW2d 385 (1967).

We remand for consideration of whether attorney fees are warranted under GCR 1963, 526 and 111.6. The circuit court is reminded that a prosecutor’s office does not operate like a private for-profit practice; this should be taken into consideration when establishing a reasonable attorney fee.

Reversed and remanded.