Opinion
Docket No. 3,574.
Decided December 20, 1968.
Appeal from Van Buren, Anderson (David, Jr.), J. Submitted Division 3 December 3, 1968, at Grand Rapids. (Docket No. 3,574.) Decided December 20, 1968.
Plaintiff Diana Weaver moved to amend her judgment of divorce from defendant Fred Weaver. Motion dismissed. Plaintiff appeals. Reversed and remanded.
James Dark, for plaintiff.
Killian, Spelman Taglia ( Carl R. Burdick, of counsel), for defendant.
On June 8, 1964, plaintiff obtained a judgment of divorce providing for child support. In September, 1966, she filed a petition in circuit court to amend the judgment to include support for a child, not mentioned in the support order, born to her on February 24, 1965, less than 9 months after the judgment of divorce was entered. The court dismissed the petition, holding that it lacked the power under CL 1948, § 552.17 (Stat Ann 1957 Rev § 25.97) to grant the requested relief. In so holding the court relied on Havens v. Havens-Anthony (1953), 335 Mich. 445, as authority.
CL 1948, § 552.17 (Stat Ann 1957 Rev § 25.97) reads as follows:
"Sec. 17. The court may, from time to time afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents, and the benefit of the children, shall require."
In plaintiff's petition to amend the judgment of divorce she alleged that for 2 months prior to the entry of the judgment she and defendant attempted a reconciliation which included the resumption of marital relations. She further alleged that within 9 months thereafter the child for whom she seeks support was born and is defendant's child. Defendant does not deny these allegations but instead contends that the court lacked the power "to revise and alter a decree covering the paternity of a child not mentioned in the judgment of divorce." In effect, defendant persuaded the trial court that it was without power to establish the paternity of the afterborn child under the authority of the statute conferring on courts the power to alter or modify decrees concerning the care, custody and maintenance of children. Defendant's position is well-taken and is supported by Havens v. Havens-Anthony, supra. However, plaintiff did not seek a determination of paternity but sought a modification of a support order and her petition was proper under CL 1948, § 552.17, supra. The above statute grants authority to courts to modify judgments of divorce to provide for support of children not mentioned in the judgment. West v. West (1928), 241 Mich. 679.
3 Comp. Laws 1915, § 11408, cited in West, supra, is identical to CL 1948, § 552.17 (Stat Ann 1957 Rev § 25.97).
A denial of paternity may be a defense to a petition for modification of a support order but it should not be viewed as affecting the power of a court, vested by statute, to make such a modification. Whether or not defendant can effectively disclaim paternity has no bearing on the power of a court, when properly invoked, to modify support orders and in no way affects plaintiff's right to a hearing on the merits.
Reversed and remanded for further proceedings.
R.B. BURNS, P.J., and J.H. GILLIS and CORKIN, JJ., concurred.