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 N.W.2d 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:
"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.
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
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.
"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
As noted in the Court of Appeals opinion in this case, 67 Mich.App. 517, 525-526; 241 N.W.2d 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 N.W.2d 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.
My colleagues focus their attention primarily on the valid and important interests of husbands who deny parenthood in divorce cases such as this, and they conclude that Lord Mansfield's Rule
It is true that the legal status of children born out of wedlock has improved significantly since the Eighteenth Century when Lord Mansfield first announced what became known as his rule. It is also true that should the husband not be required to pay child support, public assistance benefits may be available for the child's minimum financial needs, usually in his or her own home.
Despite these enlightened advances, there still are, unfortunately, social distinctions made between the legitimate and illegitimate child which continue to stigmatize the illegitimate child and scar his or her psychological development. We need no learned treatise to know that many children branded as illegitimate suffer painful and sometimes crippling emotional damage at the hands of cruel or thoughtless peers and adults. The word "bastard" has not yet lost its sting to the children against whom it is too often applied. Moreover, feelings of parental rejection and abandonment
For these reasons, among others, the law long has protected all children born during marriage by the presumption of legitimacy. The presumption speaks for the child whose future is at stake, even though he or she is not a party to the legal proceedings. It is distinct from Lord Mansfield's Rule and is not affected by today's decision. My colleagues recognize this and briefly comment on the strength of the presumption, stating that it can only be rebutted by "clear and convincing" evidence. I wish to emphasize how strong the presumption is and clarify the meaning of the words "clear and convincing".
The presumption of legitimacy is one of the strongest presumptions known to the law. When Michigan first adopted Lord Mansfield's Rule, in the case of Egbert v Greenwalt, 44 Mich. 245; 6 NW 654 (1880), the Court also discussed the presumption and the quantum of proof required to overcome it. The quantum was variously described by the Court as "facts and circumstances of such cogency as to render belief necessary", "cogent facts and circumstances" and "evidence * * * beyond all reasonable doubt".
Other jurisdictions have described the presumption in similarly strong terms. Chief Judge Cardozo spoke for the high court of New York. After stating that the quantum of proof required to overcome the presumption had been variously described as "clear and convincing" evidence, "strong and irresistible" evidence and "proof beyond all reasonable doubt", he concluded that:
"What is meant by these pronouncements, however differently phrased, is this and nothing more, that the presumption will not fail unless common sense and reason are outraged by a holding that it abides."
Courts which have rejected Lord Mansfield's Rule have, at the same time, reiterated the strength of the presumption and the great quantum of evidence required to overcome it.
The phrase "clear and convincing evidence" used by my colleagues draws its meaning from this background. It obviously does not mean that a mere preponderance of the evidence or a modicum of additional evidentiary weight will be sufficient
In short, even after today's decision abolishing Lord Mansfield's Rule, a very strong presumption of legitimacy will continue to protect the otherwise defenseless child. The husband who seeks to establish that he is not the father of a child born during the marriage still faces a formidable task.
Two other minor aspects of this case deserve some attention. First, the trial judge refused to order a blood test for the purpose of determining whether Mr. Serafin could be the father of the child. Such an order should be granted on remand if Mrs. Serafin continues to allege that Mr. Serafin is the father and if such an order is requested. Second, Mr. Serafin's military duty records and evidence indicating the weather conditions during the alleged time of access were not admitted at the first trial. These items, if otherwise admissible, should be admitted on remand.
WILLIAMS, J., concurred with COLEMAN, J.
Cases rejecting the rule are: Commonwealth ex rel Savruk v Derby, 235 Pa.Super. 560; 344 A.2d 624 (1975); In re L, 499 S.W.2d 490 (Mo, 1973); Ventresco v Bushey, 159 Me 241; 191 A.2d 104 (1963); Vasquez v Esquibel, 141 Colo. 5; 346 P.2d 293 (1959); Loudon v Loudon, 114 NJ Eq 242; 168 A 840 (1933); Moore v Smith, 178 Miss. 383; 172 So 317 (1937).