Opinion
Docket Nos. 61780, 62928.
Decided July 7, 1983.
Thomas A. Nordstrom, for plaintiff.
Kirk D. McMullen, Special Prosecutor for Domestic Affairs, for defendant.
Plaintiff filed a complaint for divorce on January 9, 1979, and a judgment of divorce was entered on August 31, 1979. Defendant subsequently sought amendment of the judgment of divorce to require plaintiff to pay support for a child born to her on June 3, 1980. Defendant claimed that the child was conceived before the judgment of divorce was entered and that plaintiff was the father. After a nonjury trial, the circuit court granted defendant the relief she sought, and plaintiff appeals by right.
Plaintiff argues that defendant's claims should have been resolved under the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., and that he was therefore entitled to a trial by jury, MCL 722.715; MSA 25.495. However, divorce actions are tried under the procedures formerly utilized for suits in courts of equity. MCL 552.12; MSA 25.92. There is no right to a trial by jury in a suit in equity. Detroit Trust Co v Struggles, 283 Mich. 471, 477; 278 N.W. 385 (1938).
In a divorce action, the court has the power to determine whether the husband is the father of the wife's child. MCL 552.16; MSA 25.96; Gallison v Gallison, 5 Mich. App. 460, 466-468; 146 N.W.2d 812 (1966); Pruitt v Pruitt, 90 Mich. App. 230, 233, fn 1; 282 N.W.2d 785 (1979); Smith v Robbins, 91 Mich. App. 284, 292; 283 N.W.2d 725 (1979); Gonzales v Gonzales, 117 Mich. App. 110, 114; 323 N.W.2d 614 (1982). After a judgment of divorce is entered, the trial court retains jurisdiction to alter its judgment concerning the care, custody, and maintenance of children as changed circumstances may require. MCL 552.17; MSA 25.97. On the other hand, the Paternity Act applies only to a child born to a woman who was not married from the conception to the date of birth of the child or a child who was born during a marriage but was not the issue of the marriage. MCL 722.711, subds (a), (b); MSA 25.491, subds (a), (b). Here the trial court found that the child was conceived during the marriage and that the child was the issue of the marriage.
Plaintiff relies on Havens v Havens-Anthony, 335 Mich. 445; 56 N.W.2d 346 (1953). In that case, the Court held that, while MCL 552.17; MSA 25.97 would allow the judgment of divorce to be amended to make provision for the care, custody, and maintenance of a child of the marriage not mentioned in the divorce decree, the statute did not authorize a reopening of a divorce case for a determination of paternity. 335 Mich. 452. However, the Court also pointed out that the question of paternity could not have been placed before the trial court on a motion for a rehearing of the judgment of divorce because such a motion would have been untimely and because, at least with regard to the mother, the existence of a child born before the judgment was entered could not be regarded as newly discovered evidence. 335 Mich. 449-450.
Here, the evidence before the trial court showed that defendant was unaware of her pregnancy at the time the judgment of divorce was entered. The doctor who cared for defendant during the pregnancy testified that it had been difficult to determine when conception occurred because defendant had irregular menstrual periods but that an ultrasound test performed on November 3, 1979, when the doctor first examined defendant, had suggested that defendant had been pregnant for about 11 weeks. Defendant's petition to modify the judgment of divorce was filed on June 18, 1980. This time sequence shows that here, in contrast to Havens, defendant's petition was filed within the time for obtaining relief from a judgment. See GCR 1963, 528.3. Moreover, here, in contrast to Havens, defendant's pregnancy and the evidence concerning the date of conception were newly discovered evidence. The time sequence noted above shows that defendant could not have discovered this evidence by due diligence in time to move for a new trial pursuant to GCR 1963, 527.2. Therefore, the trial court could amend the judgment of divorce pursuant to GCR 1963, 528.3 to include a determination of the child's paternity. While the trial court did not expressly resolve this issue in these terms, we have the power to do so pursuant to GCR 1963, 820.1(7).
Affirmed.