Black v. Rasile , 113 Mich. App. 601 ( 1980 )

113 Mich. App. 601 (1980) 318 N.W.2d 475

BLACK
v.
RASILE

Docket No. 46621.

Michigan Court of Appeals.

Decided December 4, 1980.

Stephen Greenleaf, for plaintiff.

Jason, Jason & Finkbeiner, P.C., for defendant.

Before: J.H. GILLIS, P.J., and BASHARA and CYNAR, JJ.

PER CURIAM.

This is a paternity suit filed by plaintiff, a Michigan resident, against defendant, a Georgia resident. After being personally served in Georgia, defendant moved for accelerated judgment on the ground that the Marquette County Circuit Court lacked personal jurisdiction over the defendant. GCR 1963, 116.1(1). The motion was denied, and defendant appeals under GCR 1963, 806.4(1), by leave granted on February 20, 1980.

The issue presented on appeal is whether the circuit court erred in finding personal jurisdiction over defendant since he was neither present nor domiciled in Michigan when he was served and he has not consented to the jurisdiction of the court. Jurisdiction was premised on the long-arm statute, MCL 600.705(2); MSA 27A.705(2): "The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort".

On a motion for accelerated judgment, the court must accept as true all well-pleaded facts of the nonmoving party. Robards v Estate of Leopold J Kantzler, 98 Mich. App. 414, 416; 296 NW2d 265 (1980). Plaintiff herein alleged that the child was conceived in Green Bay, Wisconsin, or Marquette, Michigan, that the child was born in Michigan and continues to reside within the state, and that defendant is the father. Under the Paternity Act, 1956 PA 205, as amended, MCL 722.711 et seq.; MSA 25.491 et seq., plaintiff asked the court to adjudge defendant to be the father of the child and to order payment of the costs of pregnancy and child birth and of the maintenance, support and education of the child until the child is 18 years of age. See MCL 722.712(a); MSA 25.492(a).

The first question to be resolved is whether a statutory cause of action can serve as the basis for tort. By way of an answer in the affirmative, we note the court's statement in Overby v Johnson, 418 F Supp 471, 472-473 (ED Mich, 1976), that the phrase "action for tort" in MCL 600.705(2); MSA 27A.705(2) should be construed as including statutory causes of action because a tort is a breach of a noncontractual legal duty, the source of which may be statutory as well as common law.

The second question, which arises under the long-arm statute, is whether defendant caused "an act to be done, or consequences to occur, in the state resulting in an action for tort". In this regard, we first note that, by statute, "[t]he fact that the child was conceived * * * outside of this state shall not be a bar to entering a complaint against the putative father". MCL 722.714(a); MSA 25.494(a). The likely basis for this provision is that the statutory cause of action is not triggered by the father's participation in the act of conception but by his subsequent failure or refusal to pay the costs of confinement and birth and the necessary support of the child. MCL 722.712(a); MSA 25.492(a). The failure to pay the enumerated costs and the child's support is thus the tortious act which occurs within the state. See, e.g., Poindexter v Willis, 87 Ill App 2d 213, 216-218; 231 NE2d 1 (1967), Nelson v Nelson, 298 Minn 438, 441-442; 216 NW2d 140 (1974).

After Poindexter v Willis, supra, was decided, plaintiff sought to enforce the Illinois judgment against the defendant father by proceeding in an Ohio court. Poindexter v Willis, 23 Ohio Misc 199; 256 NE2d 254 (1970). The following excerpt from the Ohio court's opinion reflects our thinking on the matter:

"* * * [I]t is clear upon the record that defendant had minimum contacts with the [S]tate of Illinois. For the purposes of this decision, the facts unequivocally show that the defendant, by becoming the father of the * * * child born to plaintiff brought into play the effect of the Illinois law. That law imposed upon him a duty to support his * * * child. This required performance in Illinois, that is, some measure of monetary support. His failure to do so was a breach of duty imposed by Illinois law and such failure obviously occurred in Illinois. The child could be supported nowhere else, since it was a citizen and resident of Illinois.

"* * * Furthermore it can reasonably be argued that the [S]tate of Illinois had a significant interest in this litigation because this child and the mother are residents of the state. Certainly it has an interest in the welfare of the child. The burden could fall upon the state." Id., 209-210.

Affirmed and remanded for proceedings consistent with this opinion.