Wason v. Wason , 83 Mich. App. 364 ( 1978 )

Per Curiam.

Plaintiff-appellee, Cindy Wason, filed a complaint for divorce against defendant-appellant, Robert Wason, on May 25, 1972. A default judgment of divorce was granted on May 20, 1974, which awarded custody of the parties’ minor child to the mother and required the father to pay child support in the amount of $33 per week. Appellee gave birth to a second child on August 30, 1974, On January 6, 1976, a petition was filed by the Allegan County Friend of the Court for modification of the judgment of divorce to include the second child and to order payment of support for the second child. The petition alleges that plaintiff has received aid to dependent children assistance for both children for some time. The Friend of the Court does not claim to have the express permission of the appellee to file the petition, and an affidavit was filed by appellee wherein she denied granting express authority to the Friend of the Court to file the petition. In addition, she asserts that defendant had "no opportunity or access” to be the father of the second child.

Appellant filed a motion challenging the standing of the Friend of the Court to bring such a petition. The trial court found that the Friend of the Court had statutory authority to file the petition and denied appellant’s motion for summary judgment. Appellant appeals by leave granted.

The sole issue on appeal is whether the Friend of the Court may, without consent of the mother, bring a post-judgment petition to modify a judgment of divorce to request support for a child born approximately three months subsequent to the final judgment, where the child receives aid to dependent children assistance, but was not mentioned in the pleadings or judgment of divorce, paternity has not been litigated and the judgment of divorce was taken by default. The trial court found that the statute empowered the Friend of the Court to bring such a petition saying, among other things:

" * * * Further, the statute does not exclude the post-judgment birth of a child from consideration as a change in economic conditions. The statute does expressly define the receipt of public assistance on behalf of a child who is the subject of a support order to be such a change in economic and financial conditions which would merit the Friend of the [sic] Court petitioning the court.

"In this divorce case, support has been ordered for one child and an additional child has been born to the divorced mother and she is receiving public assistance for both children. All of the statutory requirements are therefore satisfied and the Friend of the Court has standing to petition the court for modification of the divorce under the provisions of MCLA 552.252a.”

The question is entirely one of statutory interpretation. The pertinent statutes delineating the powers of the Friend of the Court are §§ 1, 2, 2a and 3.¹ Section 2a, which was amended in 1968, provides as follows:

"Sec. 2a. The friend of the court shall examine all records and files in divorce cases where judgments have been entered requiring payments for the benefit of a dependent minor child or children and conduct such other investigation as is necessary to ascertain if such payments are sufficient in view of both changing economic conditions and financial condition of the parties, as follows:

"(a) Every 2 years in cases where the dependent minor child or children are being supported in whole or in part by public welfare.

"(b) On his own motion in cases where he is informed and believes that due to such changing conditions the judgments should be modified.

"(c) On oral or written request of the custodian of the dependent minor child or children, but not more than once in every 2 years.

"Whenever a parent or guardian of a dependent minor child or children receiving payments from a judgment entered in a divorce case for the dependent child or children applies for or is receiving any form of public aid or support on behalf of the child or children, this fact may be determined by the court to constitute a change in the economic and ñnancial conditions of the parties and the friend of the court may petition for modiñcation of the judgment.

"The friend of the court shall petition the court for modification of the judgment when he deems it in the interest of the dependent minor child or children or in the interest of the public.”² (Emphasis added.)

The apparent intention of the statute was to authorize and empower the Friend of the Court to initiate legal proceedings to require fathers to support their offspring. Where public tax monies are used to support dependent minor children, public policy requires a solid effort to obtain reimbursement from responsible parents when they are economically able. The 1968 amendment was intended to broaden the power of the Friend of the Court to seek payment by fathers and to plug a possible loophole in the statute that might have prevented the Friend of the Court from claiming payment of public assistance could be a basis for modification of support orders.

The question then is whether the statute was intended to empower the Friend of the Court to petition for modification of a divorce judgment to include a child not covered in the divorce judgment.

There is as much reason to seek payment or reimbursement by a father, in lieu of or supplemental to aid to dependent children payments, in the case of a child not included in the divorce judgment as a child who is included. It is the same public pocket from which the payment must be made. We have no difficulty in concluding that the Legislature intended that the Friend of the Court be empowered to seek reimbursement as one means of preventing parents from cheating the public treasury by not mentioning in a divorce judgment a child or children who receive public assistance. In short, we find the statute permits the Friend of the Court, with or without consent of the mother, to petition a court to modify a judgment of divorce to include a child or children not included in the divorce judgment and who are subjects of public assistance.

Therefore, we find the trial judge’s opinion permitting the Friend of the Court to do so was not clearly erroneous.

While we affirm the trial judge’s ruling, this only means that the case is remanded for a hearing regarding paternity. In view of the sworn affidavit filed by the mother, we are somewhat at a loss as to how the Friend of the Court can hope to succeed in establishing paternity. We note that evidence that the child was not born of these parties’ marriage is admissible under Serafin v Serafin.³ It would appear that the Friend of the Court enjoys only a hollow victory. However, maybe there are facts that have not yet been disclosed.

Affirmed, costs to abide the final result.

1 MCL 552.251 et seq.; MSA 25.171 et seq.

2 MCL 552.252a; MSA 25.172(1).

3 Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977).