DocketNumber: Docket 139068
Citation Numbers: 506 N.W.2d 568, 201 Mich. App. 443
Judges: Holbrook, Jr., P.J., and Griffin and Reilly
Filed Date: 9/7/1993
Status: Precedential
Modified Date: 8/25/2023
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 plaintiffs 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
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,”
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 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
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.
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.