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Docket Number

Docket No. 45011.

Attorney(S)

Mark P. McLoughlin, for plaintiff.

Judges

F.X. O'BRIEN, J. (concurring).
BRONSON, P.J.

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Smart Summary

Thompson v. Thompson, Docket No. 45011 (Mich. Ct. App. Jan. 5, 1982)

Factual and Procedural Background

The parties divorced on November 19, 1971. Plaintiff (the ex-husband) was ordered to pay child support for three children, including Tyrone Thompson. After the Michigan Supreme Court's decision in Serafin v. Serafin (1977), plaintiff moved to be relieved of the support obligation for Tyrone, alleging Tyrone was not his child as he had contended at the time of the original divorce proceedings. Following a hearing before the Friend of the Court, the trial judge concluded plaintiff was not Tyrone's father and discharged plaintiff from any further support obligation for the boy. The trial court declined, however, to give the modification retroactive effect and refused to order reimbursement of monies already paid. Plaintiff sought reversal, contending among other things that because the mother had received ADC (Aid to Dependent Children) benefits, prior child support payments had gone to the Department of Social Services (DSS) and DSS should be required to reimburse plaintiff. The Court of Appeals issued the opinion under review.

Legal Issues Presented

To what extent should Serafin v. Serafin (401 Mich. 629; 258 N.W.2d 461 (1977))—which abrogated Lord Mansfield's Rule in Michigan—be given retroactive effect?
Whether plaintiff is entitled to reimbursement of past child support payments (including payments that went to the Department of Social Services) after a judicial determination that he is not the child's father.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff argued he should receive full retroactive relief after Serafin because Tyrone was not his child and thus prior support payments were unjustified.
Plaintiff argued that because defendant (the mother) had received ADC benefits, the support payments had been paid to the Department of Social Services (DSS), and by law DSS could not refuse to extend future benefits due to the necessity of reimbursing plaintiff; therefore reimbursement should be ordered (citing Evans v Dep't of Social Services).
Plaintiff alternatively argued that Serafin merely established a new evidentiary/procedural rule and thus its change should control remedy as well as procedure.

Defendant's Arguments

Defendant contended plaintiff was entitled to the return of monies paid for the support of Tyrone.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Serafin v Serafin, 401 Mich. 629; 258 N.W.2d 461 (1977)	Abrogation of Lord Mansfield's Rule in Michigan (virtually irrebuttable presumption that a child born during marriage is husband's).	Central to the appeal: court considered the extent to which Serafin should be applied retroactively; court allowed Serafin to affect prospective obligations but refused full retroactivity in this case.
Evans v Dep't of Social Services, 22 Mich. App. 633; 178 N.W.2d 173 (1970)	Authority cited for the proposition that DSS could not refuse to extend future benefits due to reimbursement obligations.	Referenced by plaintiff to argue that DSS (not defendant) would have to reimburse him; court rejected the argument and discussed policy implications for ADC recipients and DSS funding.
In re Donovan's Estate, 266 Mich. 362; 253 N.W. 552; 91 ALR 1418 (1934)	Illustrates principle that procedural rules changed by court rule or otherwise generally have prospective effect only.	Used to support the proposition that a change in an evidentiary or procedural rule (if characterized as such) is normally prospective and thus weighs against full retroactivity of Serafin.
Moore v Spangler, 401 Mich. 360, 368; 258 N.W.2d 34 (1977)	Another authority for the prospective effect of procedural changes.	Applied to support the conclusion that Serafin need not be given complete retroactive effect on remedy grounds.
Linkletter v Walker, 381 U.S. 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965)	Identifies considerations for retroactivity: purpose of new rule, reliance on old rule, and impact on administration of justice.	The court stated these Linkletter factors should govern and concluded that reliance on the old rule and administrative impact weighed against full retroactivity.
Stewart v Stewart, 91 Mich. App. 602; 283 N.W.2d 809 (1979)	Reportedly one panel of this Court refused to give Serafin any retroactive effect.	Cited as an example of a strict nonretroactivity approach; the court noted Stewart but observed the issue was not cross-appealed here and need not be resolved in this case.
Egbert v Greenwalt, 44 Mich. 245; 6 N.W. 654 (1880)	Notion that a prospective husband could ascertain existing law and act accordingly.	Used in the court's discussion of the purpose of the new rule, suggesting potential husbands had the ability to know the law prior to Serafin.
In re Wright's Estate, 237 Mich. 375, 381; 211 N.W. 746 (1927)	Explains policy bases for Lord Mansfield's Rule (lessening public charges; familial and societal peace).	Quoted in the concurrence to show that the rule's underlying policy bases were temporal and mutable, supporting prospective application of Serafin.

Court's Reasoning and Analysis

The court's analysis focused on whether the Serafin decision should apply retroactively so as to require reimbursement of past child support payments and whether the modification of a support order should be prospective. The principal reasoning steps were:

The court rejected plaintiff's claim that full retroactivity was appropriate merely because the mother received ADC and prior payments went to DSS. The court explained it could not lawfully treat ADC recipients differently from non-ADC recipients for purposes of applying Serafin, and it expressed concern that ordering reimbursement could harm children whose mothers were not on ADC. The court also rejected the assumption that DSS has unlimited funds, noting recent across-the-board ADC cuts and that reimbursement obligations could reduce funds available for current needs.
Addressing plaintiff's contention that Serafin was merely a procedural/evidentiary change and therefore should govern remedies, the court noted that procedural rule changes generally are given prospective effect (citing In re Donovan's Estate and Moore v Spangler). The court observed that the original divorce judgment predated Serafin, and thus the trial court could have declined to give Serafin retroactive effect.
The court evaluated GCR 1963, 528.3(5), which provides for relief from judgment where "it is no longer equitable that the judgment should have prospective application." Because an order of child support has continuing prospective effect, the court concluded that, in light of Serafin, it would be inequitable to force an ex-husband who can prove he is not the father to continue making support payments prospectively.
The court applied the factors commonly used to resolve retroactivity questions (purpose of the new rule, reliance on the old rule, and impact on the administration of justice—citing Linkletter v Walker). It found that reliance on the old rule and potential adverse administrative impacts weighed against full retroactivity.
The court addressed a possible compromise—reimbursement dating from Serafin's decision date (October 24, 1977)—but declined because plaintiff did not seek relief until March 1978 and the modification was made effective April 7, 1978; therefore the court did not deem it inequitable to deny reimbursement from the Serafin date.

A concurrence emphasized that Serafin was rooted in changes in policy underlying Lord Mansfield's Rule and that a change grounded in policy is appropriately applied prospectively.

Holding and Implications

HOLDING: The Court of Appeals affirmed the trial court's decision.

Consequences and immediate effects:

The trial court's refusal to order reimbursement of past child support payments related to Tyrone was upheld.
The court recognized that an ex-husband who proves by clear and convincing evidence that he is not the child's father is entitled to prospective termination of support obligations (GCR 1963, 528.3(5)), but the appellate court declined to apply Serafin retroactively to require reimbursement of past payments in this case.

Broader implications: The opinion applies the traditional retroactivity considerations (purpose, reliance, administrative impact) and disfavors full retroactive application of Serafin under the facts presented. The opinion does not announce a rule of full retroactivity and leaves intact the principle that changes characterized as procedural or based on reliance/administrative concerns are generally applied prospectively.

Disposition: Affirmed.

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THOMPSON v THOMPSON

BRONSON, P.J.

The sole issue raised in this case concerns the extent to which Serafin v Serafin, 401 Mich. 629; 258 N.W.2d 461 (1977), should be accorded retroactive effect. In Serafin, the Supreme Court abrogated Lord Mansfield's Rule in Michigan. This rule was a virtually irrebuttable presumption that a child born while the parties were married was the issue of the husband.

In the instant case, the parties were divorced November 19, 1971. Plaintiff was ordered to pay child support for three children, including Tyrone Thompson. Following the decision in Serafin, plaintiff moved for relief from the order of support requiring him to provide for Tyrone. Plaintiff contended that Tyrone was not his son, as he had at the time of the original divorce proceedings. Based on a hearing conducted before the Friend of the Court, the trial judge concluded that plaintiff was not Tyrone's father. Consequently, the court discharged plaintiff from any further support obligation as to the boy. The court refused, however, to give the modification of the support order any retroactive effect. Defendant contends that he is entitled to the return of all monies paid for the support of Tyrone.

The trial court refused to order reimbursement of the monies already paid by plaintiff because it could adversely affect the child's support. Plaintiff first argues that the trial court's ruling should be reversed because defendant has received ADC benefits since the time of the parties' divorce. As such, plaintiff's child support payments have gone to the Department of Social Services (DSS). Consequently, DSS, and not defendant, would be responsible for the reimbursement of plaintiff. By law, DSS could not refuse to extend defendant future benefits due to the necessity of reimbursing plaintiff. See Evans v Dep't of Social Services, 22 Mich. App. 633; 178 N.W.2d 173 (1970).

We reject plaintiff's first argument for full retroactivity for two reasons. First, this Court could not legally justify treating differently mothers who receive ADC benefits and those who do not for purposes of the rule announced in Serafin. Although a decision ordering full retroactivity in this case may have minimal consequences, there would obviously be severe results to a child whose mother was not on ADC and who was required to reimburse her ex-husband for years of child support. Second, the idea that no adverse consequences would befall the child in this case assumes that DSS is a deep pocket of infinite depth. However, as recent events show, this is not an accurate premise. Recently, across-the-board cuts were experienced by all ADC recipients. Any court ruling which requires DSS to expend monies for the purpose of reimbursement is going to result in less funds to meet current needs. It is within the realm of possibility, then, that every child in Michigan receiving ADC benefits would ultimately be adversely affected if we adopted plaintiff's position.

Plaintiff next argues that the abolition of Lord Mansfield's Rule in Serafin merely imposed a new evidentiary rule controlling procedure which has no bearing on remedy. He further argues that if Serafin is applicable to determine rights, it is equally applicable to the issue of remedy.

Whether or not a rule is one of substance or procedure is often open to dispute. However, assuming for purposes of this case that Serafin merely replaces one procedural rule with another, we nonetheless disagree with plaintiff's analysis. Procedural rules changed by court rule or otherwise generally have prospective effect only. In re Donovan's Estate, 266 Mich. 362; 253 N.W. 552; 91 ALR 1418 (1934), Moore v Spangler, 401 Mich. 360, 368; 258 N.W.2d 34 (1977). Since the original divorce judgment was actually rendered prior to the date Serafin was decided, the trial court might have refused to give the Serafin decision any retroactive effect. However, GCR 1963, 528.3(5) provides for relief from judgment where "it is no longer equitable that the judgment should have prospective application". An order of child support has continuing, prospective effect. In light of Serafin, it would be inequitable to force an ex-husband who can prove that he is not the father of a child he was obligated to support due to Lord Mansfield's Rule to continue making support payments.

It could be argued, then, that we should at least order reimbursement of monies from October 24, 1977, the date of the Serafin decision. We disagree because we do not deem it inequitable to refuse plaintiff the benefit of the change of law where he did not seek relief from the support order until March, 1978. The modification of the order in dispute was made effective April 7, 1978.

Plaintiff's brief does not analyze this issue in terms of the normal considerations generally deemed controlling when resolving an issue of retroactivity. These considerations are the purpose of the new rule, the reliance on the old rule, and the impact on the administration of justice should the change be given retroactive effect. Linkletter v Walker, 381 U.S. 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), Stewart v Stewart, 91 Mich. App. 602; 283 N.W.2d 809 (1979).

In Stewart, one panel of this Court refused to give Serafin any retroactive effect and determined that a support order entered prior to Serafin could not be negated after Serafin. We note that defendant in this case did not file a cross-appeal contending that no retroactive effect should be accorded Serafin. Thus, we need not address this issue. It is unlikely, however, that we would adopt the strict nonretroactivity approach of Stewart in a case in which the issue was raised. As noted in the body of this opinion, GCR 1963, 528.3(5) provides authority for the proposition that the prospective aspects of a support order may be permissibly modified in light of Serafin.

We hold that the reliance on the old rule and the possible adverse impact on the administration of justice were we to give the rule complete retroactive application weighs against plaintiff's position. The new rule's purpose is to avoid an injustice perpetrated on ex-husbands. However, any man considering marriage prior to Serafin had it within his power to find out what the law was concerning children born during the marriage. See Egbert v Greenwalt, 44 Mich. 245; 6 N.W. 654 (1880). If Lord Mansfield's Rule was deemed overly onerous by a potential husband, he could decline to marry or move to a state which did not follow the rule.

Affirmed.

R.M. MAHER, J., concurred.

F.X. O'BRIEN, J. (concurring).

I reject plaintiff's contention that he is entitled to recoup support payments made to the Department of Social Services.

I agree with my colleagues that an ex-husband who can prove by clear and convincing evidence that he is not the father of a child he is obligated to support is entitled to prospective termination of that obligation. GCR 1963, 528.3(5).

I further agree that Serafin v Serafin, 401 Mich. 629; 258 N.W.2d 461 (1977), should not be given retroactive application due to reliance on the old rule and the impact on the administration of justice. In this regard I would add that Lord Mansfield's Rule was an evidentiary rule founded in policy. In Michigan, the considerations underlying the rule were that it lessened the number of public charges and contributed to both familial and societal peace. In re Wright's Estate, 237 Mich. 375, 381; 211 N.W. 746 (1927). Serafin simply acknowledges that these policy considerations no longer prevail, that the rule has outlived its original policy bases. Serafin, supra, 634. Those bases were temporal and mutable. A change in a rule that is based solely in policy does not alter the rule's historical applicability. The change merely recognizes contemporary facts and should therefore be prospectively applied.

THOMPSON v. THOMPSON