BILLIE MICHELLE ROSE V ROBERT JOHN STOKELY
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STATE OF MICHIGAN
COURT OF APPEALS
BILLIE MICHELLE ROSE,
FOR PUBLICATION
October 1, 2002
9:00 a.m.
Plaintiff,
and
COUNTY OF CALHOUN,
Appellant,
No. 241029
Calhoun Circuit Court
Family Division
LC No. 00-001802-DP
v
ROBERT JOHN STOKELY,
Updated Copy
December 20, 2002
Defendant-Appellee.
Before: Kelly, P.J., and Saad and Smolenski, JJ.
SMOLENSKI, J.
This case requires us to decide whether the Paternity Act, MCL 722.711 et seq., grants a
circuit court discretion to apportion confinement expenses between both the mother and the
father of a child born out of wedlock. Further, we must consider whether the confinement
expense allocation provision of that act violates equal protection guarantees.
First, we conclude that MCL 722.712(1) and MCL 722.717(2) do not grant a circuit court
discretion to apportion confinement expenses between the mother and father of a child born out
of wedlock. Second, were we not compelled to follow the rule of law established in Thompson v
Merritt, 192 Mich App 412; 481 NW2d 735 (1991), we would hold that the statutory language
creates a classification based on gender. Such a conclusion would require us to apply an
intermediate level of constitutional scrutiny, under which we would conclude that the statute
violates defendant's equal protection rights. However, Thompson requires us to hold that the
statute does not create a classification based on gender and does not violate equal protection
guarantees. MCR 7.215(I).1
1
We therefore invoke the conflict resolution procedures contained in MCR 7.215(I).
-1-
Accordingly, we reverse the circuit court's order apportioning confinement expenses
between plaintiff and defendant. We remand for entry of an order directing defendant father to
pay the confinement expenses incurred by plaintiff mother, in the amount of $2,908.41.2
I. Factual and Procedural Background
On June 12, 1996, plaintiff gave birth to a daughter. On May 4, 2000, the Calhoun
County prosecutor filed a paternity complaint against defendant, on plaintiff 's behalf. The
complaint alleged that plaintiff received public assistance through the Michigan Family
Independence Agency (FIA) and that the FIA had paid the expenses related to the minor child's
birth. In addition, the complaint alleged that defendant was failing to provide support for the
minor child and that he was an able-bodied individual capable of providing support.3
The circuit court entered an order of filiation, as well as an order resolving child support
and parenting time issues.4 However, when the prosecutor requested entry of an order requiring
defendant to repay the FIA for all plaintiff 's confinement expenses, defendant objected.
Defendant argued that confinement expenses should be apportioned between the mother and
father of a child born out of wedlock, according to their respective abilities to pay. Defendant
also argued that the Paternity Act, if interpreted to impose liability for confinement expenses on
the father alone, would violate the Equal Protection Clauses of the Michigan and federal
constitutions. The prosecutor responded by arguing that the Paternity Act did impose sole
liability for confinement expenses on the father of a child born out of wedlock and that the
statute's gender-based classification did not violate constitutional protections.
In a written opinion, the circuit court determined that two sections of the Paternity Act,
MCL 722.712(1) and MCL 722.717(2), granted it discretion to apportion confinement expenses
between both the mother and the father of a child born out of wedlock. The circuit court also
determined that the statutes would violate equal protection guarantees if construed otherwise.
The circuit court therefore ordered that confinement expenses be apportioned between plaintiff
and defendant, according to their respective abilities to pay. After an investigation, the friend of
the court recommended that plaintiff assume liability for forty-one percent of the confinement
expenses and that defendant assume liability for fifty-nine percent of the confinement expenses.5
The circuit court subsequently entered an order adopting that recommendation.
2
Below, the parties stipulated that plaintiff 's actual uninsured confinement expenses amounted
to $2,908.41.
3
The parties also have a son who was born on September 19, 1997. The present appeal concerns
only the parties' daughter.
4
Those orders have not been challenged on appeal.
5
This allocation was based on a determination of the parties' income and application of the
Michigan Child Support Formula Manual.
-2-
We initially denied the prosecutor's application for leave to appeal.6 The prosecutor then
sought leave to appeal to our Supreme Court, which, in lieu of granting leave to appeal,
remanded the case to this Court for consideration as on leave granted.7 We now reverse the
circuit court's order and remand for entry of an order consistent with this opinion.
II. Statutory Construction
First, we must determine whether MCL 722.712(1) and MCL 722.717(2) grant a circuit
court discretion to apportion confinement expenses between both the mother and the father of a
child born out of wedlock. We conclude that they do not. MCL 722.712(1) provides, in
pertinent part:
The parents of a child born out of wedlock are liable for the necessary
support and education of the child. They are also liable for the child's funeral
expenses. The father is liable to pay the expenses of the mother's confinement,
and is also liable to pay expenses in connection with her pregnancy as the court
in its discretion may deem proper. [Emphasis added.]
Further, MCL 722.717(2) provides, in pertinent part:
An order of filiation entered under subsection (1) shall specify the sum to
be paid weekly or otherwise . . . until the child reaches the age of 18. . . . In
addition to providing for the support of the child, the order shall also provide for
the payment of the necessary expenses incurred by or for the mother in connection
with her confinement, for the funeral expenses if the child has died, for the
support of the child before the entry of the order of filiation, and for the expenses
in connection with the pregnancy of the mother or of the proceedings as the court
considers proper. [Emphasis added.]
Thus, subsection 2(1) allocates liability for certain categories of expenses, while subsection 7(2)
provides a method by which subsection 2(1) may be enforced, i.e., entry of an order of filiation.
A. Textual Analysis
The circuit court concluded that the language of subsections 2(1) and 7(2) granted it
discretion to apportion confinement expenses between both the mother and the father of a child
born out of wedlock. That conclusion was based on a reading of the statutory language that
applied the court's discretionary authority to both pregnancy-elated expenses and confinement
expenses. With regard to subsection 2(1), the circuit court concluded that the phrase "as the
court in its discretion may deem proper" applied both to the phrase the "expenses in connection
6
Rose v Stokely, unpublished order of the Court of Appeals, entered June 28, 2001 (Docket No.
234392).
7
Rose v Stokely, 466 Mich 860 (2002).
-3-
with her pregnancy" and to the phrase "the expenses of the mother's confinement." With regard
to subsection 7(2), the circuit court concluded that the phrase "as the court considers proper"
applied both to the phrase "the expenses in connection with the pregnancy of the mother" and to
the phrase "the necessary expenses incurred by or for the mother in connection with her
confinement." We conclude that the circuit court's construction of the statute is erroneous.
This Court explained the rules of statutory construction in the case of In re RFF, 242
Mich App 188, 198; 617 NW2d 745 (2000):
Statutory interpretation is a question of law that this Court reviews de
novo. The primary goal of judicial interpretation of statutes is to ascertain and
give effect to the intent of the Legislature. The starting point for determining the
Legislature's intent is the specific language of the statute. The Legislature is
presumed to have intended the meaning it plainly expressed, and when the
statutory language is clear and unambiguous, judicial construction is neither
required nor permitted. Where the language employed by the Legislature is
susceptible to more than one interpretation, judicial construction is justified.
When construing a statute, the court must use common sense and should construe
the statute to avoid unreasonable consequences. [Citations omitted.]
We cannot agree with the trial court's reading of the statutory language. We conclude that
the plain language of subsection 2(1) allocates liability for expenses related to the birth of a child
born out of wedlock, as follows: (1) both parents are liable for the child's necessary support and
education, (2) both parents are liable for the child's funeral expenses, (3) the father is liable for
the expenses of the mother's confinement,8 and (4) the father is liable for pregnancy related
expenses, as the trial court in its discretion deems proper. The statutory language regarding the
circuit court's discretion relates to only those expenses incurred in connection with the mother's
pregnancy, and does not relate to the expenses of the mother's confinement.9
B. Thompson v Merritt
8
MCL 722.717(2) states that an order of filiation shall provide for the payment of the
"necessary" expenses incurred in connection with the mother's confinement. MCL 722.712(1)
simply states that the father is liable to pay "the expenses of the mother's confinement. . . ."
Reading these two statutory sections in pari materia, it appears that the father is liable only for
those confinement expenses that were necessarily incurred. See Thompson, supra at 423.
Because none of the litigants in the present case raised an issue regarding the necessity of the
confinement expenses incurred by plaintiff, we need not address this aspect of the statutory
language.
9
See also OAG, 1957-1958, No 3030, p 200 (July 19, 1958), concluding that the Paternity Act
requires the father of a child born out of wedlock to pay all necessary confinement expenses,
rather than only a portion of those expenses.
-4-
In addition to its textual analysis, the circuit court relied on this Court's decision in
Thompson, supra at 425, to support its conclusion that subsections 2(1) and 7(2) granted it
discretion to apportion confinement expenses. We conclude that the circuit court misinterpreted
this Court's decision in Thompson.
As in the present case, the defendant in Thompson challenged the Paternity Act's
"requirement that the father be solely responsible for the costs of hospital confinement . . . ." Id.
at 424. The Thompson Court addressed that argument as follows:
[T]he Paternity Act obligates the male to pay for the necessary costs of
confinement and any costs of pregnancy the court deems appropriate. The female
must pay those costs associated with hospital confinement that were incurred
unnecessarily and the costs associated with the pregnancy, unless the court
determines otherwise. . . . [T]he statute gives the court the power to apportion
the costs between the parents. Consequently, we believe that the challenged
language reflects the intent of the Legislature to apportion the financial burdens
of parenthood as equally and fairly as possible, keeping in mind the interests of
the child and the financial status of the parties. [Id. at 425 (emphasis added).]
Here, the circuit court relied on the Thompson Court's statements that the "statute gives
the court the power to apportion the costs between the parents," and that the Legislature intended
to "apportion the financial burdens of parenthood . . . ." Id. The circuit court interpreted those
statements to mean that subsections 2(1) and 7(2) granted trial courts discretion to apportion both
pregnancy-related expenses and confinement expenses between the mother and father of a child
born out of wedlock. As the circuit court stated in its written opinion, "[t]he Court of Appeals in
Thompson obviously concluded that the qualifying language in the statutes applies throughout
rather than just to the last phrase and thus permits apportionment of all expenses between the
parties, including the costs of confinement." We do not believe that the Thompson decision can
be fairly read to require such a conclusion.
The Thompson Court never examined whether the last phrases of subsections 2(1) and
7(2), regarding the circuit court's discretion, applied to confinement expenses. Further, the
Thompson Court did not state that the Legislature intended to apportion confinement expenses
between both the mother and the father of a child born out of wedlock. As the Thompson Court
explained, subsection 2(1) governs liability for three broad categories of expenses: (1) necessary
costs of confinement, (2) unnecessary costs of confinement, and (3) costs associated with
pregnancy. The Thompson Court concluded that the Legislature "apportioned" these three
categories of expenses by declaring (1) the father liable for all necessary confinement costs, (2)
the mother liable for unnecessary confinement costs, and (3) both the mother and the father liable
for pregnancy-related costs, at the discretion of the trial court. The Thompson Court's reference
to apportioning the financial burdens of parenthood does not support a conclusion that a circuit
-5-
court possesses discretion to apportion confinement expenses between the mother and the father
of a child born out of wedlock.10
Given the plain language of subsections 2(1) and 7(2), we must reverse the circuit court's
order apportioning confinement expenses between both plaintiff and defendant. Neither the
statutory language nor this Court's decision in Thompson permits a circuit court to enter such an
order.
III. Equal Protection
Next, we must consider whether the Paternity Act's confinement expense allocation
provision constitutes impermissible gender-based discrimination, in violation of the Equal
Protection Clauses of the Michigan and federal constitutions.11 As this Court stated in the case
of In re RFF, supra at 205:
Equal protection of the law is guaranteed by the federal and state
constitutions. The Michigan and federal Equal Protection Clauses offer similar
protection.
Generally, equal protection requires that persons in similar
circumstances be treated similarly. "[I]t is well established that even if a law
treats groups of people differently, it will not necessarily violate the guarantee of
equal protection." Neither constitution has been interpreted to require absolute
equality. When legislation is challenged as violative of the equal protection
guarantee under either constitution, it is subjected to judicial scrutiny to determine
10
Further, we note that the portion of Thompson discussing the Paternity Act's confinement
expense allocation provision is obiter dictum. In Thompson, supra at 423, the mother chose not
to utilize a medical facility covered by her health insurance. The trial court found that the
mother's confinement expenses were unnecessarily incurred, and refused to hold the father liable
for those expenses. Id. at 416, 423. On appeal, this Court affirmed the trial court's decision that
the father was not required to pay any of the mother's confinement costs. Id. at 423. This ruling
disposed of the issue regarding the allocation of confinement costs, and the subsequent
discussion with respect to apportionment of such costs between the mother and the father was
obiter dictum. Cree Coaches, Inc v Panel Suppliers, Inc, 384 Mich 646, 650; 186 NW2d 335
(1971). See also McAuley v General Motors Corp, 457 Mich 513, 526, n 1; 578 NW2d 282
(1998) (Taylor, J., concurring in result).
11
In its remand order, our Supreme Court stated:
In lieu of granting leave to appeal, the case is remanded to the Court of
Appeals for consideration as on leave granted. MCR 7.302(F)(1). The Court of
Appeals is directed to determine the proper level of scrutiny to be applied to
[defendant's] equal protection claim, and whether MCL 722.712(1) violates that
standard. Crego v Coleman, 463 Mich 248 (2000); Geduldig v Aiello, 417 US
484 (1974). The Court of Appeals is to render its decision by October 1, 2002.
[Rose v Stokely, 466 Mich 860 (2002).]
-6-
whether the goals of the legislation justify the differential treatment it authorizes.
The level of scrutiny applied depends on the type of classification created by the
statute and the nature of the interest affected by the classification. [Citations
omitted.]
"When a party raises a viable equal protection challenge, the court is required to apply
one of three traditional levels of review, depending on the nature of the alleged classification."
Crego v Coleman, 463 Mich 248, 259; 615 NW2d 218 (2000). The most stringent level of
review, referred to as "strict scrutiny," is applied "where the law results in classifications based
on 'suspect' factors such as race, national origin, or ethnicity . . . ." Id., citing Plyler v Doe, 457
US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982). An intermediate level of review,
referred to as "heightened scrutiny," is applied where the law results in classifications based on
factors such as illegitimacy and gender. Crego, supra at 260, citing Clark v Jeter, 486 US 456,
461; 108 S Ct 1910; 100 L Ed 2d 465 (1988). The most deferential level of review, referred to as
"rational basis," is applied where the law does not result in classifications based on
impermissible factors. Crego, supra at 259, 261.
A. Classification Based on Gender
In order to resolve defendant's equal protection claim, we must first determine whether
the confinement expense allocation provisions contained in MCL 722.712(1) and MCL
722.717(2) create a classification based on gender. Were we not compelled to follow the rule of
law established in Thompson, supra, we would hold that the statutory language does create a
classification based on gender.12
As in the present case, the defendant in Thompson, supra at 424, argued that the Paternity
Act's confinement expense allocation provision amounted to "impermissible gender-based
discrimination in violation of the equal protection clauses of the state and federal constitutions."
Examining that claim, the Thompson Court held that subsections 2(1) and 7(2) do not create a
classification based on gender:
[T]he Paternity Act obligates the male to pay for the necessary costs of
confinement and any costs of pregnancy the court deems appropriate. The female
must pay those costs associated with hospital confinement that were incurred
unnecessarily and the costs associated with the pregnancy, unless the court
determines otherwise. In our view, the language does not make gender a
necessary consideration in determining which parent pays the costs. Instead, the
statute gives the court the power to apportion the costs between the parents.
Consequently, we believe that the challenged language reflects the intent of the
Legislature to apportion the financial burdens of parenthood as equally and fairly
as possible, keeping in mind the interests of the child and the financial status of
12
MCR 7.215(I).
-7-
the parties. If a differentiation is based on a factor other than sex, there is no sexbased denial of equal protection or due process of law unless it can be found to be
a mere pretext to effect an invidious discrimination. [Thompson, supra at 425
(emphasis added).]
We disagree with this analysis, and would conclude that the statutory language does
create a classification based on gender.13 Subsection 2(1) clearly provides that the father of a
child born out of wedlock is liable for the mother's confinement expenses. The statute does not
make the mother and the father jointly liable for these expenses, and does not grant a circuit court
discretion to allocate those expenses on the basis of the parties' respective abilities to pay. As in
Orr v Orr, 440 US 268, 273; 99 S Ct 1102; 59 L Ed 2d 306 (1979), there is no question that
defendant "bears a burden he would not bear were he female." By authorizing the imposition of
confinement expenses solely on fathers, but not on mothers, the Paternity Act provides that
different treatment be accorded on the basis of gender; it thus establishes a classification subject
to intermediate scrutiny under the Equal Protection Clauses of the Michigan and federal
constitutions. See id. at 278-279.
B. Intermediate Scrutiny
"There can be no doubt that our Nation has had a long and unfortunate history of sex
discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic
paternalism' which, in practical effect, put women, not on a pedestal, but in a cage." Frontiero v
Richardson, 411 US 677, 684; 93 S Ct 1764; 36 L Ed 2d 583 (1973). Legislatively drawn
classifications based on gender are often an "accidental byproduct of a traditional way of thinking
about females that reflected old notions and archaic and overbroad generalizations about the roles
and relative abilities of men and women." Heckler v Mathews, 465 US 728, 745; 104 S Ct 1387;
79 L Ed 2d 646 (1984).14 This traditional way of thinking has changed over time, and females
are no longer considered to be "destined solely for the home and the rearing of the family, and
only the male for the marketplace and the world of ideas." Stanton v Stanton, 421 US 7, 14-15;
95 S Ct 1373; 43 L Ed 2d 688 (1975). Because "[l]egislative classifications which distribute
benefits and burdens on the basis of gender carry the inherent risk of reinforcing the stereotypes
about the 'proper place' of women and their need for special protection," such classifications will
be upheld only if they "serve important governmental objectives and [are] substantially related to
achievement of those objectives." Orr, supra at 279, 283.15
Here, the prosecutor argues that the Paternity Act's confinement cost allocation provision
is substantially related to the achievement of an important governmental objective.16
13
Further, the prosecutor conceded below and concedes on appeal that the statutory language
creates a classification based on gender.
14
Internal quotations and citations omitted.
15
Internal quotations and citations omitted.
16
In the trial court, the prosecutor simply argued that the statute's gender-based classification was
rationally related to an important governmental purpose.
-8-
Specifically, the prosecutor argues that the statutory provision was designed to encourage unwed
mothers to seek proper medical care. The prosecutor contends that unwed mothers might forgo
needed medical care unless they are assured that they will not be held liable for the expense of
such care. In essence, we understand the prosecutor's argument to be that the statute uses gender
as a proxy for need, assuming that all unwed mothers are in need of financial assistance from the
father of their child, in order to pay for proper medical care.17
The United States Supreme Court rejected a similar argument in Orr, supra. In Orr, the
Court examined an Alabama statute that authorized state courts to place an alimony obligation on
husbands, but never on wives. Orr, supra at 271. Alabama's intermediate appellate court
concluded that the statute was designed for "'the wife of a broken marriage who needs financial
assistance.'" Id. at 280. Thus, the stated legislative purpose for the gender-based classification
was to "provide help for needy spouses, using sex as a proxy for need." Id. The United States
Supreme Court held in Orr that the statute in question violated the Equal Protection Clause
because Alabama's statutory scheme already permitted "individualized hearings at which the
parties' relative financial circumstances are considered . . . ." Id. at 281. Thus, there was no
reason to use gender as a proxy for need, and this rationale was inadequate to justify the statute's
gender-based classification. Id. at 281-282.
Likewise, under our Paternity Act, circuit courts already conduct individualized hearings
to examine the parties' relative financial circumstances. Indeed, such hearings must be conducted
before a trial court can enter an order of filiation specifying the unmarried parents' respective
child support obligations. MCL 722.717(2).18 We recognize that only mothers undergo
confinement and childbirth, while fathers do not. However, it is not true that all mothers, or even
all unwed mothers, are unable to afford costs associated with confinement and childbirth.
Because individualized hearings can determine which unwed mothers are in need of financial
assistance from the father of their child, the statutory purpose advanced by the prosecutor can be
effectuated without placing the burden of confinement costs solely on fathers. Orr, supra at 281282.
Defendant argues that the Paternity Act's confinement cost allocation provision is a
lingering vestige of the common-law "necessaries" doctrine, which required husbands to pay for
the necessary medical services received by their wives. Defendant contends that the Legislature
adopted this provision of the Paternity Act in order to place unmarried women on an equal
footing with married women, regarding payment for the necessary costs of confinement. While
the necessaries doctrine remained in force, the fathers of children borne to married women (i.e.,
17
The circuit court rejected this argument, concluding that if this truly was the Legislature's
purpose, the statute would impose liability on fathers for the entire cost of prenatal care, instead
of allowing circuit courts discretion to allocate pregnancy-related costs between both the mother
and the father. We agree with the circuit court's observation on this point.
18
Here, the circuit court referred the matter to the friend of the court, which conducted an
investigation regarding the parties' financial circumstances.
-9-
their husbands) were automatically liable for the necessary medical costs incurred during
childbirth. The Paternity Act's confinement cost allocation provision gave unmarried women the
same advantage, requiring the fathers of their children to be entirely liable for their necessary
medical costs incurred during childbirth.
The common-law necessaries doctrine remained unmodified until just four short years
ago, when our Supreme Court recognized that the doctrine violated equal protection principles.
North Ottawa Community Hosp v Kieft, 457 Mich 394; 578 NW2d 267 (1998). In that case, our
Supreme Court abrogated the common-law necessaries doctrine, stating:
[T]he common-law necessaries doctrine imposing the support burden only
on a husband could be justified in the past because it was substantially related to
the important governmental objective of providing necessary support to dependent
wives. However, the contemporary reality of women owning property, working
outside the home, and otherwise contributing to their own economic support calls
for the abrogation of this sex-discriminatory doctrine from early common law. [Id.
at 407-408.]
We agree with defendant that the abrogation of the common-law necessaries doctrine removed
any legitimate basis for the Paternity Act's allocation of confinement costs on the basis of gender.
The prosecutor's appeal brief can also be read to advance another purpose for the
Paternity Act's gender-based classification. The prosecutor argues that the FIA pays the
confinement expenses of unwed mothers who are entitled to state Medicaid benefits, and that the
Legislature intended to permit recoupment of these expenses from the fathers of children born
out of wedlock. This argument relies on a crucial, but mistaken assumption: that the Paternity
Act's confinement expense allocation provision applies only to unwed mothers receiving
government assistance. The Paternity Act is not so limited; the statute applies to all unwed
mothers, regardless of their financial status. Not all unwed mothers need financial assistance
from the father of their child in order to pay for proper medical care. Many women, wed and
unwed, are covered by their own health care insurance and are otherwise equally able to pay for
the birth of their children.
The prosecutor's argument also implies that relieving fathers of sole responsibility for
confinement costs regarding the birth of illegitimate children will result in an unintended
consequence: unwed mothers receiving state welfare benefits will be required to repay the FIA
for the necessary costs of their confinement. We stress that the issue before us is not whether the
mother of a child born out of wedlock should or may be required to repay the FIA for her
necessary confinement expenses. The issue before us is whether the father of a child born out of
wedlock may properly be required to shoulder the entire burden of the mother's confinement
expenses.19 Although we concede that recoupment of confinement expenses from fathers who
19
Further, we note the prosecutor's statement in his appeal brief that the grantee of public
assistance does not have to repay government benefits, absent misconduct.
-10-
have the ability to pay such expenses constitutes an important governmental objective, this
purpose can be achieved by gender-neutral legislation.
We would conclude that the Paternity Act's confinement cost allocation provision
constitutes a gender-based classification that violates the Equal Protection Clauses of the
Michigan and federal constitutions. However, we are constrained to follow Thompson, supra at
425, and hold that the statutory provision does not violate equal protection guarantees.
Reversed and remanded for entry of an order directing defendant to pay the confinement
expenses incurred by plaintiff, in the amount of $2,908.41. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Henry William Saad
/s/ Kirsten Frank Kelly
-11-
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