SPADA v. PAULEY

H.R. GAGE, J.

Plaintiff, Gregory Spada, a minor, is the child of defendant Janise Pauley. Defendant Gary Pauley is plaintiff's alleged father. Plaintiff, by his next friend, appeals as of right from a circuit court order granting defendant Gary Pauley's motion for accelerated judgment, GCR 1963, 116. The circuit court ruled that plaintiff could not maintain an action to determine his parentage separate from that allowed under the Paternity Act and subject to the six-year limitation period of the Paternity Act, MCL 722.714(b); MSA 25.494(b).

Plaintiff was born on February 7, 1970. Defendants were subsequently married in June, 1979, and separated in September, 1979. Following their separation, defendant Janise Pauley commenced a paternity action alleging that defendant Gary Pauley was plaintiff's father. In the paternity action, the circuit court granted defendant Gary Pauley's unopposed motion for accelerated judgment based on the six-year limitation period of the Paternity Act. Defendant Gary Pauley then filed a divorce action in circuit court. Janise Pauley answered the complaint for divorce, alleging that Gary Pauley was plaintiff's father. The circuit court refused to consider the issue of plaintiff's paternity, stating that the matter was settled in the previous order. Plaintiff was not a party in either the paternity action or the divorce action.

Plaintiff filed the instant action seeking a determination of his parentage, an order directing the Michigan Department of Health to correct his birth record, and a determination of the duties and obligations of defendant parents, including their duty of support. Following a hearing, the circuit court granted defendant Gary Pauley's motion for accelerated judgment. The court held that, although its former ruling in defendant Janise Pauley's paternity action was not res judicata,1 plaintiff could not maintain an action to determine his parentage separate from that allowed under the Paternity Act and subject to the six-year limitation period of the Paternity Act, MCL 722.714(b); MSA 25.494(b). McFetridge v Chiado, 116 Mich.App. 528; 323 N.W.2d 470 (1982), lv den 417 Mich. 892 (1983).

The Paternity Act provides for paternity litigation to be commenced by the mother, the father, or the Department of Social Services. MCL 722.714(a); MSA 25.494(a). The statute does not permit the child to commence an action to determine the child's parentage and the parent's obligation of support. In McFetridge v Chiado, supra, p 531, this Court held:

"Absent legislative action, a child may not maintain a paternity action separate from that allowed under the paternity statute and subject to the limitation period. Cf. JMS v Benson, 98 Wis.2d 406; 297 N.W.2d 18 (1980)."

As outlined below, we believe that Michigan's statutory scheme, which denies the present plaintiff a cause of action, unreasonably restricts an illegitimate child's right to obtain parental support. Therefore, an illegitimate child may maintain an independent cause of action to determine parentage and support obligations. Our decision is mandated by the equal protection clause of both the United States Constitution, US Const, Am XIV, and the Michigan Constitution, Const 1963, art 1, § 2. This decision is in accord with the recent judicial and legislative trend to provide illegitimate children with equal protection of the law. Furthermore, recent technological advances avoid what were once difficult proof problems.

I

Both the Uniform Parentage Act2 and the Uniform Act on Paternity3 allow a child to bring an action to establish paternity and enforce support obligations. Federal legislation encourages the states to develop effective procedures for support enforcement and establishment of paternity.4

At least one judge of this Court has expressed the view that a child should be joined as a party plaintiff in a paternity action. Wolfe v Geno (On Remand), 134 Mich.App. 433, 435-436; 351 N.W.2d 316 (1984) (CYNAR, J., dissenting). Moreover, courts in other jurisdictions have recognized a child's nonstatutory cause of action to determine paternity. For example, JMS v Benson, supra, relied on by the Court in McFetridge, was reconsidered and overturned by the Wisconsin Supreme Court in WRW v Bartholomew, 116 Wis.2d 150; 341 N.W.2d 682 (1984). In Bartholomew, the court held that a child had an independent right to bring a declaratory judgment action to establish paternity. Courts in other states have recognized a child's right to bring a declaratory action to establish paternity. See R v R, 431 S.W.2d 152 (Mo, 1968); Carlson v Bartels, 143 Neb. 680; 10 N.W.2d 671 (1943).

Other courts have held that a statutory paternity procedure is not exclusive because an illegitimate child has a common-law right to support from his or her parents and equal protection requires that a child be allowed to bring an action on his or her own behalf to establish paternity in order to make a parent's support obligation effective. See Nettles v Beckley, 32 Wn.App. 606; 648 P.2d 508 (1982); Kaur v Chawla, 11 Wn.App. 362; 522 P.2d 1198 (1974); Wynn v Wynn, 587 S.W.2d 790 (Tex Civ App, 1979); Carty v Martin, 233 Kan. 7; 660 P.2d 540 (1983); Huss v De Mott, 215 Kan. 450; 524 P.2d 743 (1974); Johnson v Norman, 66 Ohio St.2d 186; 421 N.E.2d 124 (1981); Franklin v Julian, 30 Ohio St.2d 228; 283 N.E.2d 813 (1972); Wiczynski v Maher, 48 Ohio App.2d 224; 356 N.E.2d 770 (1976).

In Michigan, however, married, natural parents of minors and mothers of illegitimate minors are statutorily obligated to support their minor children, and the duty of support may be enforced by the minor in circuit court. MCL 722.3; MSA 25.244(3).5 No provision is made, however, for an illegitimate child to enforce the father's duty of support. Moreover, under McFetridge v Chiado, a paternity and support determination may be obtained on behalf of an illegitimate minor only through the Paternity Act. The Paternity Act, however, does not give an illegitimate child a full and adequate legal remedy nor does it allow an illegitimate child to file an independent action for support. An illegitimate child may only obtain a paternity and support determination if the mother, the father, or the Department of Social Services brings a paternity action in circuit court within the six-year limitation period.

II

Both article 1, § 2 of the Michigan Constitution and the Fourteenth Amendment to the United States Constitution provide that no person shall be denied the equal protection of the law. Classifications based on illegitimacy are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Pickett v Brown, 462 U.S. 1; 103 S.Ct. 2199; 76 L Ed 2d 372 (1983). In Gomez v Perez, 409 U.S. 535, 538; 93 S.Ct. 872; 35 L Ed 2d 56 (1973), the Supreme Court held that it is an unconstitutional denial of equal protection to grant legitimate children a judicially enforceable right to support from their natural fathers and deny that right to illegitimate children:

"[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is `illogical and unjust.' * * * We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination." (Citations omitted.)

In Mills v Habluetzel, 456 U.S. 91; 102 S.Ct. 1549; 71 L Ed 2d 770 (1982), and Pickett v Brown, supra, the Supreme Court considered the constitutionality of state statutes which imposed short limitation periods on paternity and child support actions. In both cases, the equal protection analysis focused on whether the limitation period was long enough to provide illegitimate children with a reasonable opportunity to obtain parental support and whether that opportunity was substantially related to the state's interest in preventing the litigation of stale or fraudulent claims. Pickett, supra, 462 U.S. 12; 103 S.Ct. 2206; Mills, 456 U.S. 99-100. The equal protection analysis of Mills and Pickett is relevant to the present case because in Michigan an illegitimate child's right to obtain parental support is restricted.

III

MCL 722.1 et seq.; MSA 25.244(1) et seq. (see n 5, supra), does not provide an illegitimate minor with a right to obtain support from the father because MCL 722.1(b); MSA 25.244(1) does not include fathers of illegitimate children within the definition of parents. While normally this Court does not address issues not presented for our review, we are compelled to comment that a legislative scheme which grants legitimate children the right of support from their fathers but does not provide such right to illegitimate children appears to be a clear denial of equal protection under Gomez v Perez, supra.

Moreover, the Paternity Act does not provide an illegitimate child a reasonable opportunity to obtain parental support. The interests of the parties to a paternity action are not necessarily identical to the illegitimate child's interests nor are they likely to be sufficiently similar to afford the child a forum to protect his rights under the Paternity Act. A mother may fail to initiate a paternity proceeding for various reasons. She may wish to avoid any contact with the father, she may wish to avoid disapproval of the community or her family, she may be able to support the child and not foresee a change in her circumstances, she may be subject to emotional strain and confusion that often attends the birth of an illegitimate child, or she may have a continuing relation with or affection for the father. Pickett v Brown, supra, 462 U.S. 12-13; 103 S.Ct. 2206; Mills v Habluetzel, supra, 456 U.S. 105-106 (O'Connor, J., concurring); WRW v Bartholomew, supra, p 686. Also, the state's interest does not coincide with the illegitimate child's interest. The Department of Social Services is concerned with its own economic interest. A child's interests are much broader.6

We cannot see what legitimate interest the state has in denying plaintiff an independent cause of action to determine parentage and support obligations in light of the state's compelling interest in assuring that the primary obligation for support of an illegitimate child falls on the child's parents rather than on the taxpayers of the state. Mills, supra, 456 U.S. 103-104 (O'Connor, J., concurring); Wolfe v Geno, supra, p 435 (CYNAR, J., dissenting). See also Kaur v Chawla, supra, where the court stated:

"`When minor children are involved, the state's interest is that, in so far as is possible, provision shall be made for their support, education, and training, to the end that they may grow up to be worthy and useful citizens. It, therefore, follows that there should be no discrimination in this respect between children born out of wedlock and children legitimately born. The public interest is exactly the same in either case.'" 11 Wn.App. 363, n 1; 522 P.2d 1198, quoting Heney v Heney, 24 Wn.2d 445, 459; 165 P.2d 864, 870-871 (1946).

It is suggested that the state's interest in preventing stale or fraudulent claims is a legitimate reason for denying illegitimate children a cause of action to determine support. As Justice O'Connor noted in her concurring opinion in Mills v Habluetzel, supra, the state's interest in preventing the prosecution of stale or fraudulent claims is "undercut by the countervailing State interest in ensuring that genuine claims for child support are satisfied". 456 U.S. 103 (O'Connor, J., concurring). Moreover, technological developments in blood testing dramatically reduce the possibility that an individual will be fraudulently accused of being the illegitimate child's father. 456 U.S. 104 (O'Connor, J., concurring); McFetridge v Chiado, 116 Mich.App. 532 (R.I. COOPER, J., dissenting).

We also do not believe that it was the Legislature's intent that the Paternity Act provide the exclusive method for determining parentage, since parentage is determined in many other different situations. Parentage is determined, for example, by the Workers' Compensation Appeal Board, see Bettelon v Metalock Repair Service, 137 Mich.App. 448; 358 N.W.2d 608 (1984), under the Child Custody Act, see Winsett v Donaldson, 69 Mich.App. 36; 244 N.W.2d 355 (1976), in divorce actions, see Serafin v Serafin, 401 Mich. 629; 258 N.W.2d 461 (1977), and under the Revised Probate Code, see MCL 700.111; MSA 27.5111.

We conclude that the failure of Michigan's statutory scheme to provide illegitimate children a reasonable opportunity to file a paternity action is not related to any legitimate state interest. Since the Paternity Act does not afford an illegitimate child a full and adequate legal remedy, the traditional equitable jurisdiction of the circuit court may be invoked to provide plaintiff with a forum for his claims. Cf. Sovereign v Sovereign, 354 Mich. 65; 92 N.W.2d 585 (1958). To the extent that McFetridge precludes plaintiff's suit in the present case, we decline to follow it.

Since plaintiff's cause of action in the present case is not under the Paternity Act, the six-year period of limitation, MCL 722.714(b); MSA 25.494(b), does not apply. Rather, the general disability tolling provision of MCL 600.5851(1); MSA 27A.5851(1) is applicable.7

Reversed and remanded for further proceedings. Costs to appellant.

GRIBBS, P.J., concurred.

MacKENZIE, J. (dissenting).

I agree with the majority's well-reasoned analysis of Michigan's statutory child support scheme and the conclusion that the scheme is constitutionally infirm as applied to illegitimate children. In my opinion, however, correcting this infirmity is a matter for the Legislature and not for this Court. I therefore respectfully dissent from that portion of the majority opinion creating a common-law cause of action to determine parentage and the parent's obligation of support.

I would affirm.