Moon v. Ballinger

Per Curiam.

Plaintiff, Kathy Aneta Moon, filed this action under the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., alleging that defendant, Jerry Ballinger, is the father of her son. Defendant denied paternity. Pursuant to plaintiff’s request and in accordance with § 6 of the Paternity Act, the court ordered plaintiff, defendant and the child to submit to blood tests. MCL 722.716; MSA 25.496. Upon defendant’s refusal to submit to the ordered blood test, plaintiff filed a motion for entry of default judgment. The court ordered that default judgment would be entered against defendant unless he submitted to a blood test within sixty days of the order or, if he appealed the order, within sixty days of the final appellate order upholding the order. Defendant appeals by leave granted.

Defendant argues that entry of a default judgment is not a permissible sanction against a person who refuses to submit to a blood test ordered by a trial court under MCL 722.716; MSA 25.496. We disagree.

MCL 722.716; MSA 25.496 provides in pertinent part:

(1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing tests which may include, but are not limited to, tests of red cell antigens, red cell isoenzymes, human leukocyte antigens, and serum proteins to determine whether the alleged father is likely to be, or is not,the father of the child. A blood or tissue typing test of a child shall not be taken before the child reaches the age of 6 months. If the court orders any blood or tissue typing test to be taken and any party refuses to submit to the test, in addition to any other remedies available, the fact of the refusal shall be disclosed at the trial unless good cause is shown for not disclosing the fact of refusal.

(4) The result of a blood or tissue typing test, and if a determination of exclusion of paternity cannot be made, a calculation of the probability of paternity made by a person the court determines is qualified as an examiner of blood or tissue types based on the result of a blood or tissue typing test shall be admissible in evidence in the trial of the case. [Emphasis added.][¹]

The statute mandates a minimum level of response to a paternity defendant’s refusal to participate in a court-ordered blood or tissue typing test. In the event of a trial following such refusal, the fact of refusal must be disclosed to the trier of fact unless good cause for nondisclosure is shown. The Legislature also, however, clearly manifested its intent not to delimit the range of judicial response to such violations of discovery orders. Trial courts are authorized to invoke "any other remedies available.”

Procedure in paternity actions is governed by the rules applicable to other civil actions except as modified by MCR 3.212 and the Paternity Act. MCR 3.212(A). The entry of judgment by default against a party who fails to obey a discovery order is expressly authorized by MCR 2.313(B)(2)(c). Since there is no conflict between the Paternity Act, or MCR 3.212, and MCR 2.313(B)(2)(c), the remedy authorized by the latter is available in paternity actions. The Paternity Act itself clearly contemplates that judgment by default can be an appropriate remedy in paternity actions. MCL 722.717(a); MSA 25.497(a).

The decision to impose discovery sanctions is addressed to the trial court’s discretion. Johnson v Patmon, Young & Kirk, PC, 119 Mich App 362, 368; 326 NW2d 511 (1982). Defendant in this case has made a bare denial of paternity and has offered no reason why he should not be required to submit to the testing of his blood. The fact that plaintiff filed a previous paternity action against another man and that that action was dismissed after the defendant in that case submitted to a blood test provides no justification for noncompliance with the court order in this case. The trial judge’s response to plaintiff’s motion for entry of default judgment was well within his discretionary authority.

Affirmed.

1 This section was significantly amended by 1982 PA 129.