Pruitt v. Pruitt

90 Mich. App. 230 (1979) 282 N.W.2d 785

PRUITT
v.
PRUITT

Docket No. 77-4948.

Michigan Court of Appeals.

Decided May 21, 1979.

Legal Aid of Central Michigan (by Paula M. Zimmer and Chris Campbell), for plaintiff.

Daniel W. McKelvery, for defendant Shannon.

Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Marvin E. Robertson, Chief, Family Services Division for Pruitt child.

Before: R.B. BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.

J.H. GILLIS, J.

Bettie Pruitt filed a complaint for divorce against Samuel Pruitt. An amended complaint was subsequently filed joining defendant, Ernest Shannon, as a party and alleging that he is the father of two children born to Bettie Pruitt during the course of her marriage to Samuel Pruitt. Defendant Shannon moved for summary judgment pursuant to GCR 1963, 117.2(1). The motion was denied and defendant Shannon was granted leave to appeal by this Court.

Defendant argues that the trial court was without authority to bring him into a divorce action. We agree.

In divorce actions, the authority of the court to act is purely statutory. Flynn v Flynn, 367 Mich. 625; 116 NW2d 907 (1962), Gray v Independent Liberty Life Ins Co, 57 Mich. App. 590; 226 NW2d 574 (1975). We know of no statute which provides for the determination of the paternity of a third party as part of a divorce proceeding.^[1]

The general rule in Michigan is that the court is without the power in divorce proceedings to litigate the rights of persons other than the husband or wife. Yedinak v Yedinak, 383 Mich. 409; 175 NW2d 706 (1970). From this rule has been carved the exceptions set forth in Berg v Berg, 336 Mich. 284, 288; 57 NW2d 889 (1953):

"It is claimed that the petitioner, the sister of the defendant, is not a proper party. It must be conceded that as a general rule * * * the husband and wife are the only parties to be recognized in a divorce case. There are exceptions. The prosecuting attorney may be required to appear and oppose a decree in any divorce case in which it appears to the court that public good so requires. CL 1948, § 552.45 (Stat Ann § 25.121). The State commissioner of revenue is ex officio the public guardian of every patient committed to a State institution, upon whom service of process is required in any proceeding against any patient detained in a State institution. CL 1948, § 330.21b (Stat Ann 1951 Cumm Supp § 14.811[1]). Third persons may be made defendants in an action for divorce where it is charged that such persons have conspired with the husband with intent to defraud the wife out of her interest in property."

See also, Sabourin v Sabourin, 67 Mich. App. 100; 240 NW2d 284 (1976).

The instant case involves none of these exceptions. Furthermore, we are of the opinion that the nature of a paternity action involving a third party is such that it should not be made part of a divorce action.

A divorce proceeding is equitable in nature. St Clair Commercial & Savings Bank v Macauley, 66 Mich. App. 210; 238 NW2d 806 (1975). Juries in chancery cases act in an advisory capacity only. White v Burkhardt, 338 Mich. 235, 238; 60 NW2d 925 (1953). On appeal, the matter is reviewed de novo. Nickel v Nickel, 29 Mich. App. 25; 185 NW2d 200 (1970), Hutchins v Hutchins, 36 Mich. App. 675; 194 NW2d 6 (1971).

On the other hand, paternity proceedings are quasi-criminal in nature. Artibee v Cheboygan Circuit Judge, 397 Mich. 54; 243 NW2d 248 (1976). The defendant may invoke the protection afforded in matters of procedure to one on trial for a criminal offense, including the right to a jury trial, the right to appointed counsel if the defendant is unable to afford one, and the protection against double jeopardy. Artibee, supra, People v McFadden, 347 Mich. 357; 79 NW2d 869 (1956), McDaniel v Jackson, 78 Mich. App. 218; 259 NW2d 563 (1977). On appeal only errors of law may be considered, People v Martin, 256 Mich. 33; 239 N.W. 341 (1931).

In light of the foregoing, we conclude there is no statutory authority to join a third party to a divorce proceeding for the purpose of adjudicating paternity. Further, it would not serve the convenient administration of justice to do so.

Reversed and remanded for entry of summary judgment in favor of defendant Shannon. No costs, a public question being involved.

R.B. BURNS, P.J., concurred.

V.J. BRENNAN, J. (dissenting).

I must dissent. In the recent case of Serafin v Serafin, 401 Mich. 629; 258 NW2d 461 (1977), the Michigan Supreme Court abolished the long-standing evidentiary rule barring a husband and wife from testifying that a child born during coverture was not the offspring of both. The present state of the law guards a child born during wedlock with a strong though rebuttable presumption of legitimacy.^[1]Serafin, supra, 636, Maxwell v Maxwell, 15 Mich. App. 607; 167 NW2d 114 (1969). In cases where the husband does successfully rebut the presumption, he would not be required to support the child. Serafin, supra, 634-635. Support would then be sought from another source.

Michigan's Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., places the obligation of support on the parents of a child born out of wedlock. The latter is defined as "a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child", MCL 722.711(a); MSA 25.491(a). (Emphasis added.) A literal reading of the above places the child in the case at bar (since the mother was married at the time of birth) outside the ambit of that act. Such a result is unacceptable. I would hold the Paternity Act operative where the mother of the child is not lawfully married to the father of the child.

The majority has most accurately pointed out the salient differences between divorce and paternity actions with one being equitable and the other being legal in nature. In order to fully protect the interests of minor children, I would hold that both actions could be brought under a single suit with the divorce action (equity) tried before the court and the paternity action (legal) tried before a jury, if demanded. (The paternity defendant would be added as a third-party defendant in the divorce action.) Such a procedure would both foster judicial economy and minimize the possibility of long delays in determining support for minor children.

NOTES

[1] In Gallison v Gallison, 5 Mich. App. 460; 146 NW2d 812 (1966), paternity was determined in the course of an annulment proceeding. However, that was only a two-party proceeding and the Court relied upon MCL 552.16; MSA 25.96, which provides in part as follows:

"Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain."

While this statute may give the court authority to make a determination of paternity where the parties are involved in the annulment or divorce itself, we fail to see how it gives the court the authority to bring a third party into the divorce proceedings.

[1] The possibility of rebutting the presumption has been greatly increased since Serafin allows husband and wife themselves to testify as to illegitimacy.