author: Bashara, P.J.

text:
    INMAN v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 44796.
    Submitted April 1, 1980, at Lansing.
    Decided June 17, 1980.
    Jean Inman applied for general assistance (GA) from defendant Michigan Department of Social Services (DSS). At the time of her application, she had an application for Supplemental Security Income (SSI) assistance pending with the Department of Health, Education and Welfare (HEW). GA would normally be denied to persons eligible for SSI, but HEW and the state have entered into an agreement whereby DSS will advance GA to SSI applicants as interim assistance while their SSI applications are pending. Pursuant to that agreement, DSS obtained Ms. Inman’s permission to be reimbursed for the interim payments out of any SSI made retroactively payable for the period during which GA was provided. The permission form, signed by her, directed HEW to mail the first SSI payment to DSS. She received interim assistance for six months before being determined eligible for SSI, retroactive to the date of application. HEW mistakenly mailed the first check containing the retroactive benefits to claimant’s representative payee rather than to DSS. The representative payee forwarded, from the proceeds of the check, the amount due in repayment of interim assistance advanced. Ms. Inman applied to DSS for return of the money sent to it by her representative payee. DSS upheld the receipt and retention of the money. Ms. Inman appealed to the Genesee Circuit Court, which affirmed the administrative order on the basis that the repayment was voluntary and declared that DSS could not mandate reimbursement of interim assistance payments from SSI recipients when the SSI benefits are issued directly to the recipient, Thomas C. Yeotis, J. DSS appeals and Ms. Inman cross-appeals. Held:

    The Federal statute permitting the Secretary of the Department of Health, Education and Welfare, upon written authorization by a Supplemental Security Income recipient, to withhold benefits due the recipient and pay directly to the state from the withheld benefits an amount sufficient to reimburse the state for interim assistance furnished to the recipient operates to make the state which supplies the interim assistance a preferred creditor as to the first SSI payment. Where the statutory requirements and regulations have been met by the state but HEW mistakenly mails the first SSI payment to the recipient rather than the state, the state may use any lawful means, including legal process, to obtain reimbursement.

      Reference for Points in Headnote
    [1] 79 Am Jur 2d, Welfare Laws § 32.

      Affirmed in part and modified in part.
    Social Security — Supplemental Security Income — Welfare — Interim Assistance — Reimbursement to the State — Statutes.
    The Federal statute permitting the Secretary of the Department of Health, Education and Welfare (HEW), upon written authorization by a Supplemental Security Income (SSI) recipient, to withhold benefits due the recipient and pay directly to the state from the withheld benefits an amount sufficient to reimburse the state for interim assistance furnished to the recipient operates to make the state which supplied the interim assistance a preferred creditor as to the first SSI payment; where the statutory requirements and regulations have been met by the state but HEW mistakenly mails the first SSI payment to the recipient rather than the state, the state may use any lawful means, including legal process, to obtain reimbursement (42 USC 1383[g]).

      Jeffrey W. Luekens, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija and William K. Basinger, Assistants Attorney General, for defendant.
    Before: Bashara, P.J., and M. J. Kelly and D. R. Freeman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, P.J.

The issue to be resolved in this case is whether the Michigan Department of Social Services (DSS) may mandate reimbursement for general assistance advanced during the pendency of a supplemental security income (SSI) application and approved, where the first SSI check, including retroactive benefits, is inadvertently sent to the recipient rather than the Department of Social Services. We hold that it may so mandate reimbursement and, therefore, affirm but modify the judgment of the trial court.

The facts are undisputed. Jean Inman applied for Federal SSI benefits in September of 1977. On September 14, 1977, she signed a reimbursement authorization and agreement with the Department of Social Services. The agreement authorized the Secretary of Health, Education and Welfare (HEW) to make the first payment of SSI benefits directly to the DSS. Ms. Inman, thereafter, received general assistance from the DSS from September of 1977 through March of 1978.

On March 8, 1978, she was approved for SSI benefits and received an initial benefits check in the amount of $1,030.45. Although HEW had received her reimbursement authorization from the DSS, the check was erroneously sent to her representative payee. The payee, however, forwarded $794.94 of the $1,030.45 to the DSS as reimbursement for the interim assistance.

Ms. Inman then requested that DSS return the reimbursement. She argued that 42 USC 407, which was made applicable to SSI recipients by 42 USC 1383(d)(1), prevented the DSS from using any legal process to obtain money that had been distributed to an SSI recipient.

When the DSS refused to return the monies, Ms. Inman sought an administrative hearing. The hearing judge determined that she was not entitled to a return of her SSI benefits. This decision was affirmed by the circuit court, which concluded that the payment was voluntary. However, the court also issued a declaratory judgment which prohibited the DSS from obtaining mandatory reimbursement of SSI benefits paid directly to SSI recipients. The DSS appeals from the lower court’s declaratory judgment, and Ms. Inman cross appeals the determination that the payment was voluntary.

The lower court’s declaratory judgment was based on the interpretation given 42 USC 407 by the United States Supreme Court in Philpott v Essex County Welfare Board, 409 US 413; 93 S Ct 590; 34 L Ed 2d 608 (1973). Section 407 states:

"The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”

The Supreme Court held that § 407 prevented the State of New Jersey from using legal process to obtain Federal disability payments paid to a recipient. However, the instant case is clearly distinguishable from Philpott.

In Philpott, both the State of New Jersey and the Federal government were under a statutory duty to provide disability benefits to the recipient. However, for a certain amount of time, the state was the sole provider and its payments to the recipient were increased accordingly. Subsequently, the recipient was awarded retroactive benefits from the Federal government which included the period for which the state had furnished assistance. The state commenced an action to recover the amount by which its own payments would have been reduced had the Federal benefits been received currently rather than retroactively.

The Supreme Court concluded that the "all inclusive” language of § 407 precluded the state from reaching the Federal benefits. Id., 416. The court saw no reason to imply an exception to § 407 on the grounds proffered by the state:

"We see no reason why a State, performing its statutory duty to take care of the needy, should be in a preferred position as compared with any other creditor.” Philpott v Essex County Welfare Board, 409 US 413, 416.

Congress, subsequently and likely in response to the Philpott decision, enacted new Social Security legislation in 1974. 42 USC 1381 et seq. As previously stated, § 1383(d)(1) incorporates by reference § 407. However, the new legislation also included § 1383(g), which provides in part:

"(1) Notwithstanding subsection (d)(1) of this section and subsection (b) of this section as it relates to the payment of less than the correct amount of benefits, the Secretary may, upon written authorization by an individual, withhold benefits due with respect to that individual and may pay to a State (or a political subdivision thereof if agreed to by the Secretary and the State) from the benefits withheld an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished on behalf of the individual by the State (or political subdivision).
"(2) For purposes of this subsection, the term 'benefits’ with respect to any individual means supplemental security income benefits under this subchapter * * * that the Secretary has determined to be due with respect to the individual at the time the Secretary makes the fírst payment of beneñts. A cash advance made pursuant to subsection (a)(4)(A) shall not be considered as the first payment of benefits for purposes of the preceding sentence.” (Emphasis added.)

Section 1383(g) was enacted to encourage states to provide interim assistance where there is no duty to so provide. Congress was aware that between the time an individual applies for SSI benefits and the time they are received, considerable time may elapse. In the present case, Ms. Inman was required to wait approximately six months. Although the first SSI check includes retroactive benefits from the time of filing, this cannot satisfy those persons who are in immediate and constant need. To help these persons, many states provide interim assistance.

As a condition for assistance in Michigan, a recipient must agree to have the first SSI payment sent directly to the state. See French v Dep’t of Social Services, 92 Mich App 701; 285 NW2d 427 (1979). This practice is consistent with § 1383(g) and the regulations promulgated thereunder. 20 CFR 416.1901 et seq.

We find that the effect of § 1383(g)(1) and (2) is to make a state which supplies interim assistance a preferred creditor as to the first SSI payment.

It is undisputed that the DSS complied with all statutory requirements and regulations. But for the error by HEW in sending the check to the payee rather than to the state, no problem would have existed. Under these limited circumstances, a state should be allowed to use any appropriate means, including the use of legal process, to obtain its reimbursement. Any other construction of the statute would produce an unjust result and would be clearly inconsistent with the purposes and policies of the act in question. See Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), The Clarke-Gravely Corp v Dep’t of Treasury, 89 Mich App 732, 738; 282 NW2d 202 (1979).

In light of our conclusion, we find it unnecessary to discuss Ms. Inman’s cross-appeal.

Affirmed in part and modified in part. No costs, a public question being involved.

       It is in this respect that this case differs from French v Dep’t of Social Services, supra. In a footnote, the French Court observed that because the defendant had failed to communicate with HEW regarding the plaintiff’s execution of the reimbursement agreement, it was precluded from recouping directly from HEW the money subsequently advanced to the plaintiff as interim assistance pursuant to § 1383(g). It should be further noted that the text of the reimbursement agreement is set forth in its entirety in the French case.


source: Caselaw Access Project

author: M. F. Cavanagh, J. V. J. Brennan, J.,

license: Public Domain

text:
    PEOPLE v HART
    Docket No. 44873.
    Submitted February 6, 1980, at Lansing.
    Decided June 17, 1980.
    Defendant, Susan L. Hart, was charged with larceny in a building in the Mecosta Circuit Court. The charge stemmed from an alleged shoplifting incident. The court, Harold Van Domelen, J., dismissed the felony charge and remanded defendant to the district court for trial on the charge of larceny under $100. The people appeal. Held:

    The prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two applicable statutes a prosecution will be brought. The trial court erred in dismissing the larceny in a building charge because the offense constituted shoplifting.
    Reversed.
    V. J. Brennan, J., dissented. He would hold that it was not the intent of the Legislature to have the larceny in a building statute apply in shoplifting cases. He would affirm.
    Opinion op the Court
    1. Prosecuting Attorneys — Discretion — Larceny — Shoplifting.
    The prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two applicable statutes a prosecution will be brought; a trial court erred in dismissing a larceny in a building charge because the offense constituted shoplifting.
    2. Criminal Law — Legislature — Crimes — Punishments.
    It is the province of the Legislature to define crimes and prescribe punishments.
    References for Points in Headnotes
    [1, 3] 50 Am Jur 2d, Larceny §§ 49, 50. 63 Am Jur 2d, Prosecuting Attorneys §§ 25, 26.
    Validity, construction, and effect of statutes establishing shoplifting as specific criminal offense. 90 ALR2d 811.

       21 Am Jur 2d, Criminal Law § 577.

       73 Am Jur 2d, Statutes § 145.

      Dissent by V. J. Brennan, J.
    3. Larceny — Statutes — Legislative Intent — Shoplifting.

      It was not the intent of the Legislature to have the larceny in a building statute apply in shoplifting cases (MCL 750.360; MSA 28.592).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James Thompson, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Walz, Fershee, Jordan & Stanton, for defendant.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

Defendant was charged with larceny in a building, contrary to MCL 750.360; MSA 28.592. The circuit judge ordered that the charge of larceny in a building be dismissed because the offense for which defendant was charged "in this cause constitutes shoplifting and the Legislature did not intend the larceny in a building felony statute to be used in shoplifting cases”. The prosecution claimed this appeal by right.

There is a precedential chain of case authority which establishes the validity of a prosecutor’s discretion under these circumstances. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972), and the cases cited therein. One of the cited cases, in turn, refers to another established principle of law, namely:

" 'It will be conceded that the legislature has the constitutional power to fix the minimum as well as the maximum of the punishment. It has also the exclusive jurisdiction to define "crime” and prescribe the punishment. It is supposed to represent the sentiment and wishes of the people.’ * * *
" 'The legislature is ordinarily the judge of the expediency of creating new crimes and prescribing penalties, whether light or severe, for prohibited acts.’ ” People v Mire, 173 Mich 357, 362; 138 NW 1066 (1912). (Citations deleted.)

Our Legislature determined that, amount of the value of the property notwithstanding, it shall be a felony to commit a larceny within a building. MCL 750.360; MSA 28.592. Therefore, where there is evidence to support the two requisite elements of this offense, as there was in this case, it is error for the circuit court to dismiss the charges. The fact that different penalties may result does not, of itself, deprive the prosecutor of the discretion to determine under which statute prosecution will be brought. See United States v Batchelder, 442 US 114; 99 S Ct 2198; 60 L Ed 2d 755 (1979).

In light of the recognition that it is the province of the Legislature to define crimes and prescribe punishments therefor, we note that the Final Draft of the Second Revised Criminal Code proposed for Michigan would retain felony status for the theft of property in a building, while empowering the court in its discretion to reduce the offense to a misdemeanor after conviction in an effort to minimize hardships such as those commented upon in People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978), lv den 406 Mich 949 (1979). See Committee Commentary to §§ 3205 to 3210, Michigan Second Revised Criminal Code, Final Draft — June 1979.

The orders of the lower court dismissing defendant’s charge and remanding the cause to district court are reversed.

Cynar, P.J., concurred.

V. J. Brennan, J.,

(dissenting). I would affirm the order of the circuit court dismissing the felony charges here as the facts do clearly show a simple larceny charge at most. See People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978), People v Feldman, 87 Mich App 157; 274 NW2d 1 (1978), People v Evans, 94 Mich App 4, 11-12; 287 NW2d 608 (1979) (dissent).


author: V. J. Brennan, P.J.

text:
    PEOPLES v CHRYSLER CORPORATION
    Docket No. 45152.
    Submitted April 22, 1980, at Detroit.
    Decided June 17, 1980.
    Anthony E. Peoples was injured while in the course of his employment at Chrysler Corporation. The machine in which he was injured was manufactured by Chrysler. In addition to a claim for worker’s compensation benefits Peoples brought an action for damages against Chrysler and others, claiming negligence in the manufacture and design of the machine. Chrysler moved for and was granted summary judgment, Wayne Circuit Court, Maureen P. Reilly, J., on the basis that Peoples had failed to state a claim upon which relief could be granted because the action was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act. Plaintiff appeals. Held:

    Peoples’ action was based on the employer-employee relationship. The machine he was using was given to him by Chrysler to be used in his capacity as an employee, and it was while he was performing in that capacity that he was injured. The use of the machine was a routine and integral part of his employment. Therefore, the action against Chrysler is barred by the exclusive remedy provision of the Worker’s Disability Compensation Act.
    Affirmed.
    1. Motions and Orders — Judgment — Summary Judgment — Failure to State Claim — Court Rules.
    A motion for summary judgment on the grounds that the opposing party has failed to state a claim upon which relief may be granted tests only the legal, not the factual, sufficiency of the pleadings, and all inferences from the pleadings are made in the light most favorable to the party opposing the motion; every well-pled allegation in the complaint is assumed to be true, the test of the motion being whether the opposing party’s claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).

      References for Points in Headnotes

       61 Am Jur 2d, Pleading §§ 229, 230.

       81 Am Jur 2d, Workmen’s Compensation §§ 50-53.

       82 Am Jur 2d, Workmen’s Compensation § 317.

      2. Workers’ Compensation — Exclusive Remedy — Statutes.
    An action by an injured employee against his employer is precluded by the exclusive remedy provision of the Worker’s Disability Compensation Act if the action seeks recovery for a personal injury arising out of and in the course of employment and if the action is based on the employer-employee relationship (MCL 418.131, 418.301; MSA 17.237[131], 17.237[301]).
    3. Workers’ Compensation — Employer-Employee Relationship.
    An injured employee’s action for damages against his employer was based upon the employer-employee relationship where a machine by which the employee was injured was given to him to be used in his capacity as an employee and where he was injured while performing in his capacity as an employee.

      Provizer, Eisenberg, Lichtenstein & Pearlman, P.C. (by Randall Phillips and Carlo J. Martina), for plaintiff.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. (by Mark D. Willmarth), for defendant Chrysler Corporation.
    Before: V. J. Brennan, P.J., and Bronson and H. E. Deming, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   V. J. Brennan, P.J.

Plaintiff, Anthony Eugene Peoples, was employed by defendant Chrysler Corporation in 1976. On June 24 of that year, while operating a lubricating machine, plaintiff suffered a serious accident when his hand became caught between the rollers. As a result his arm was drawn into the machine and severely crushed. Following the accident, the plaintiff filed a petition for worker’s compensation benefits against Chrysler Corporation and received an open award which is presently on appeal.

In 1979, plaintiff instituted the present action against Chrysler Corporation, Jomac, Inc., Banner Tire Company, Banner Spring and Ford Slide, Inc., and Litton Unit Handling Systems, Inc., seeking damages for the injuries he received in the accident. The complaint was based on defendants’ alleged negligence and breach of implied and expressed warranties. Plaintiff claimed that defendants were negligent in the manufacture and design of the lubricating machine. He also claimed that the gloves, rubber ring and suction cup provided plaintiff for use in his work were improperly manufactured and designed and contributed to the accident.

At a hearing held on April 20, 1979, defendant Chrysler Corporation filed a motion for summary judgment which was granted. This appeal was then taken from the granting of the motion for summary judgment.

The sole issue before us is whether, under the circumstances of the instant case, the "exclusive remedy” provision of the Worker’s Disability Compensation Act precludes plaintiff from maintaining the present tort action against his employer.

A motion for summary judgment under GCR 1963, 117.2(1) tests only the legal, not the factual, sufficiency of the pleadings. Hoag v Paul C Chapman & Sons, 62 Mich App 290, 295; 233 NW2d 530 (1975). All inferences are made in the light most favorable to the party opposing the motion. Petrie v GRD, Inc, 39 Mich App 619, 620; 197 NW2d 848 (1972). As has been previously stated by this Court:

"A motion for summary judgment brought under GCR 1963, 117.2(1), merely tests the legal sufficiency of the claim as determined from the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974), 1 Honigman & Hawkins, [Michigan Court Rules Annotated (2d ed)], supra, Committee Notes to GCR 1963, 117, pp 353-355. For the purposes of that motion, both at the trial and appellate levels, every well-pled allegation in the complaint is assumed to be true. Bielski v Wolverine Insurance Co, 379 Mich 280, 283; 150 NW2d 788 (1967). The test is whether the plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).” Stewart v Troutt, 73 Mich App 378, 383-384; 251 NW2d 594 (1977). Accord, Gartside v Young Men’s Christian Association, 87 Mich App 355; 274 NW2d 58 (1979).

The Worker’s Disability Compensation Act provides that "[t]he right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer”. MCL 418.131; MSA 17.237(131).

An action is precluded by the exclusive remedy provision if it seeks recovery for a personal injury arising out of and in the course of employment and if the suit is based on the employer-employee relationship. MCL 418.301; MSA 17.237(301), Neal v Roura Iron Works, Inc, 66 Mich App 273, 275; 238 NW2d 837 (1975), Bednarski v General Motors Corp, 88 Mich App 482, 484; 276 NW2d 624 (1979).

In Neal v Roura Iron Works, Inc, supra, the plaintiff suffered a loss of his right arm while employed by the defendant. Following the accident, the defendant voluntarily paid worker’s compensation benefits which were accepted by plaintiff. Plaintiff then sued defendant seeking damages for the personal injuries he received in the accident. Plaintiff claimed that the accident occurred when a glove he had been wearing, sold to him by defendant, became caught in a drill press. He alleged that a breach of warranty arose from the sale of the glove inasmuch as the glove was unfit for use during the operation of the drill press. Id. at 274. In rendering its decision, this Court employed the following test:

"Thus, in order to decide that plaintiffs present action is precluded by the exclusive remedy provision of the Workmen’s Compensation Act, we must answer the following three questions in the affirmative: (1) Were the 'conditions of liability under the act’ present at the time of plaintiffs injury?, (2) Is plaintiff seeking to recover damages for personal injuries?, and (3) Is plaintiffs suit based upon the employer-employee relationship?” Id. at 275.

The Court easily answered the first two questions in the affirmative. Id. at 276. As to the last question, the Court observed that "it is evident that, before an employee can maintain a separate cause of action against his employer, it must first appear that the employer-employee relationship is entirely unrelated thereto, or only incidentally involved”. Id. at 278. It then went on to decide the final question in the affirmative as well:

"In the present case, however, the plaintiffs accident could not possibly have happened but for the fact that he was employed by the defendant as a drill press operator. Moreover, the gloves allegedly sold to the plaintiff were to be used by him in his capacity as an employee of the defendant, and it was while plaintiff was performing in this capacity that the accident occurred. Under these circumstances, we hold that the third question must also be answered in the affirmative and, as a result, plaintiffs suit is therefore barred by the exclusive remedy provision of the Workmen’s Compensation Act.” Id.

The instant case is virtually identical to Neal. Clearly, the conditions of liability under the act were present at the time of plaintiff’s injury. It is equally clear that plaintiff is seeking to recover damages for personal injuries. It only remains to be decided whether plaintiff’s suit was based on the employer-employee relationship. Plaintiff asserts on appeal that it was not. Unlike the situation in Neal, he claims that Chrysler manufactured this type of machinery and sold it to the public at large; hence there existed a separate relationship between Chrysler and plaintiff, that of the manufacturer of the product and its user. Plaintiff insists that his claim for damages rests on this relationship rather than the employer-employee relationship, and cites Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971), as dispositive. In Panagos, the plaintiff, while an employee of defendant, cut her mouth on a foreign particle allegedly in a piece of pie which plaintiff purchased in the hospital’s cafeteria. The cut later became infected, and plaintiff lost teeth as a result of the infection. As a result of plaintiffs disablement, worker’s compensation benefits were voluntarily paid. After returning to work, plaintiff brought suit against the hospital alleging negligence and breach of warranty. Finding for that plaintiff, this Court commented as follows:

"In the case at bar plaintiffs cause of action is not based upon the fact that she was employed by the defendant hospital. The case is based entirely upon the fact that there was deleterious material in a piece of pie which she had purchased in her employer’s cafeteria.
"Plaintiffs present case is based upon the vendorvendee relationship. The whole theory of the cause of action has nothing to do with the fact that plaintiff also happened to be employed by the defendant.” Id. at 558-559.

Unlike Panagos, however, we do not find the employer-employee relationship only incidental, and having nothing to do with the fact that plaintiff also was employed by Chrysler.

We find the analysis of the Neal Court more appropriate to the factual circumstances presented here where the lubricating machine was given to plaintiff "to be used by him in his capacity as an employee of the defendant, and it was while plaintiff was performing in this capacity that the accident occurred”, Neal, supra, 278. The use of the product was, in fact, a routine and integral part of the employment.

The most troubling aspect of plaintiffs claim is that it is very similar to saying that Chrysler provided an unsafe working environment, a situation clearly within the exclusivity rule of the act. In addition, it presents the possibility of an end-run around the statute sufficient to invalidate for all practical purposes the intent of Legislature when it created the system of worker’s compensation. This was clearly a concern of the Neal Court:

"If we held otherwise, we would be opening doors to the institution of innumerable product liability suits by injured employees against their employers. Such a consequence would not only emasculate the exclusive remedy provision but would also serve to effectively undermine the entire statutory scheme of the Workmen’s Compensation Act.” Neal, supra, 278.

Finally, it should be noted that plaintiff characterizes his suit as an action against a third-party tortfeasor who only incidentally happens to be his employer. Relevant to such actions is § 827 of the act which states in pertinent part:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section.” (Emphasis added.) MCL 418.827(1); MSA 17.237(827)(1).

Affirmed.

       MCL 418.131; MSA 17.237(131) provides, as amended:
      “The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.”

       GCR 1963, 117.2(1) states:
      "Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
      "(1) the opposing party has failed to state a claim upon which relief can be granted.”


author: T. M. Burns, P.J.

text:
    LIBERTY STATE BANK & TRUST v HEMISPHERE DEVELOPMENT GROUP, INC
    Docket No. 45324.
    Submitted January 4, 1980, at Detroit.
    Decided June 17, 1980.
    Plaintiff, Liberty State Bank & Trust, acquired by assignment in June, 1972, a $37,000 promissory note executed by defendant, Hemisphere Development Group, Inc. Starting in August, 1972, defendant made monthly payments on this note which bore an interest rate at 12% per annum. In May, 1974, plaintiff added to the balance carried on its ledger card of defendant’s account the sum of $8,095.19. This sum reputedly represented the balance owing to plaintiff on the account of General Contract Services, a corporation whose only connection with defendant was that the same individual was president of both corporations. Defendant continued to make payments until June, 1974, at which time all further payments on the loan ceased. Plaintiff commenced suit on the note for the entire amount of money due on the account, which plaintiff alleged to be $28,904.09, including the $8,095.19 addition. Defendant denied it was liable for any money on the account, arguing that the addition to the account amounted to a material alteration of the loan agreement which justified cessation of all payments due. The Oakland Circuit Court, Gene Schnelz, J., held that defendant was not liable for the $8,095.19 but that defendant was liable on the $17,710.70 remaining on the original $37,000 loan, the court holding that the alteration of the ledger card did not constitute a material alteration of the loan agreement such that the loan agreement was voided. Accrued interest on the judgment at the loan agreement rate of 12% per annum was awarded to plaintiff. Defendant appeals. Held:

    1. The unauthorized addition by the bank to the balance on the ledger card maintained by the bank with respect to defendant’s promissory notes does not constitute a material alteration of an instrument within the meaning of the Uniform Commercial Code. The term instrument, as used in the controlling section of the Uniform Commercial Code, means a negotiable instrument. The ledger card maintained by the bank is not a negotiable instrument since it was not signed by either a maker or drawer, was not an unconditional promise to pay a sum certain in money on demand or at a definite time, and was not payable to order or bearer. The bank’s addition of the sums to the ledger card in no way mitigated defendant’s obligation to pay on the promissory note that it had executed.

      References for Points in Headnotes

       11 Am Jur 2d, Bills and Notes § 6.

       45 Am Jur 2d, Interest and Usury §§ 73, 74.

       45 Am Jur 2d, Interest and Usury § 102.

      2. Since there is no allegation that the rate of interest on the promissory note was unlawful, interest on the judgment was properly computed at the rate of interest on the note. Since the alteration of the ledger card neither extinguished defendant’s obligation to make payments in accordance with the provisions of the note nor in any way interfered with defendant’s ability to comply with that obligation, there is no justification for suspending the award of interest on the money judgment awarded in this action on that note.
    Affirmed.
    1. Bills, Notes and Checks — Promissory Notes — Bank Ledger Card — Material Alteration — Negotiable Instruments — Uniform Commercial Code.
    An unauthorized addition by a bank to the balance on the ledger card maintained by the bank with respect to a promissory note which it holds does not constitute a material alteration of an instrument such that the obligation is discharged under the Uniform Commercial Code, since the material alteration provision of the Uniform Commercial Code applies only to negotiable instruments and the ledger card is not a negotiable instrument (MCL 440.3102[l][e], 440.3104[1], 440.3407; MSA 19.3102[l][e], 19.3104[1], 19.3407).
    2. Interest — Interest on Money Judgment — Rate of Interest — Written Instruments — Statutes.
    Interest on a money judgment in a suit on a written instrument bearing a lawful rate of interest higher than the statutory rate of interest on money judgments is properly computed at the higher rate of interest specified in the written instrument (MCL 600.6013; MSA 27A.6013).
    3. Interest — Interest on Money Judgment — Promissory Notes — Suspension of Interest — Discharge of Obligation — Prevention of Payment.
    The right to an award of interest on a money judgment in an action on a promissory note is not suspended where the acts of the creditor, even if improper, did not operate to discharge the underlying obligation or to prevent the debtor from complying with his obligation to make payment.

      William I. Liberson, P.C. (by Stephen J. Beck), for plaintiff.

      Murdoch J. Hertzog, for defendant.
    Before: T. M. Burns, P.J., and Bashara and Cynar, JJ.
   T. M. Burns, P.J.

Defendant, Hemisphere Development Group, Inc., appeals of right a May 10, 1979, judgment of the circuit court that found it liable to plaintiff, Liberty State Bank & Trust, for money due on a promissory note and security agreement and awarded to plaintiff $25,993.31. We affirm.

On June 27, 1972, defendant and a creditor, American Acceptance Company, entered into an agreement under which defendant was required to execute and deliver to the latter a promissory note in the amount of $37,000. Subsequently, American Acceptance Company assigned to plaintiff its accounts receivable from defendant as security for loans made by plaintiff to American. Interest on the note was to accrue at the rate of 12% per annum, and from August 2, 1972, to August 2, 1974, defendant made 21 payments of $850 each on the note.

On May 15, 1974, the sum of $8,095.19 was added to the balance on the ledger card of defendant’s account. This sum reputedly represented the balance owing to plaintiff on an account with General Contract Services, a corporation whose only connection with defendant was that its president was also the president of the defendant corporation. From that date until June 16, 1975, defendant made 11 payments totalling $11,250 on its account. Thereafter, it ceased making further payments.

On July 18, 1976, plaintiff brought suit for the entire amount of the money due on the account, which plaintiff alleged was $28,904.09. At trial, defendant denied that it was liable for any money on the account for the reason that the May 15, 1974, addition of $8,095.19 to the account constituted a material alteration of the loan agreement and justified cessation of all payments due on it. The trial court agreed that defendant was not liable for the $8,095.19, but held that defendant was liable for the remainder at the 12% per year interest rate. Defendant now appeals and argues that the lower court judge erred in not holding that plaintiffs alteration of the ledger card constituted a material alteration voiding the loan agreement. Defendant also argues that the lower court erred in awarding plaintiff full interest on the amount found, to be owing. We disagree.

Initially, we note that we are unpersuaded by plaintiff’s argument that the issues raised by defendant are not properly before this Court. Defendant did argue in the lower court that the promissory note was invalid and that plaintiff was not entitled to any interest on it. Therefore, we decline to hold that these issues are not properly raised before this Court.

We find to be without merit defendant’s argument that the lower court erred in not holding that plaintiffs addition of $8,095.19 to defendant’s ledger card constituted a material alteration of the loan agreement and thereby voided defendant’s obligations thereunder. Under MCL 440.3407; MSA 19.3407:

"(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in
"(a) the number or relations of the parties; or
"(b) an incomplete instrument, by completing it otherwise than as authorized; or
"(c) the writing as signed, by adding to it or by removing any part of it.
"(2) As against any person other than a subsequent holder in due course
"(a) alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;
"(b) no other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given.”

This statutory language gives defendant no right to release of its obligation under the promissory note. MCL 440.3102(1)(e); MSA 19.3102(l)(e), clearly provides that § 3407 pertains only to an alterated "negotiable instrument”. To be negotiable an instrument must:

"(a) be signed by the maker or drawer; and
"(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article; and
"(c) be payable on demand or at a definite time; and
"(d) be payable to order or to bearer.” MCL 440.3104(1); MSA 19.3104(1).

The ledger card that plaintiff is alleged to have altered is not an "instrument” which, if materially and fraudulently altered, would discharge defendant’s obligations thereunder. The ledger card does not contain a signature by a maker or drawer, an unconditional promise to pay a sum certain in money on demand or at a definite time, or an indication that it is payable to order or to bearer. Therefore, plaintiff’s addition of sums to this ledger card in no way mitigated defendant’s obligation to pay on the promissory note that it had executed.

Defendant also argues that the lower court erred in awarding plaintiff interest at 12% per year on the sums that it found due and owing from defendant. We find no error.

The payment of interest on money judgments is authorized under the provisions of MCL 600.6013; MSA 27A.6013:

"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate speciñed in the instrument if such rate was legal at the time the instrument was executed.” (Emphasis supplied.)

The trial judge found that the amount owing on the promissory note was $17,710.70. The note provided for an interest rate of 12% per year and defendant does not allege that this rate of interest was unlawful. Applying this rate of interest, the trial judge computed interest from the date of defendant’s last payment on the promissory note, June 6, 1975, and determined that a total interest charge of $8,282.61 was due. Adding this sum to the amount of the principle found owing on the note, the trial judge calculated the total award of damages, $25,993.31. Defendant raises two challenges to the validity of the interest award.

Defendant first argues that the amount of the interest award was improper under GCR 1963, 518.3, because plaintiff failed to prove entitlement to it. This is not true. Plaintiff proved, by introduction of the promissory note and ledger card at trial, the total amount of the original loan, the number and total of all payments that had been made on the note, and the rate of interest due on the note. With these facts known, computation of the interest owing on the note required only application of a simple mathematical formula. Thus, evidence in the record is sufficient to support the trial judge’s award.

Defendant also argues that the award of interest was unwarranted because of certain improper activities of plaintiff. We agree with defendant that if the failure to make payment on a note is due to any improper act or omission of the creditor, or to any conduct on behalf of the creditor that prevents the debtor from complying with his obligation to pay, accrual of interest on the note is suspended. Michaels v Mellish, 55 Mich App 374; 222 NW2d 247 (1974). However, we disagree with defendant’s argument that this principle has application in this case.

Assuming that defendant was willing and able to pay on the note, there is no evidence of an act or omission of plaintiff sufficient to prevent payment. Unlike the facts of Michaels, plaintiff here did not repudiate or change the contract between the parties, which, as embodied in the promissory note, remained entirely intact. Therefore, we find no improper conduct by plaintiff that would have justified the suspending of interest on the note.

Affirmed. Plaintiff may assess costs.


author: M. J. Kelly, J.

text:
    PEOPLE v SCHRAM PEOPLE v ALEXANDER
    Docket Nos. 45327, 45389.
    Submitted April 1, 1980, at Lansing.
    Decided June 17, 1980.
    Michael Schram and Paul Alexander were each convicted of attempted safe-breaking and of breaking and entering with intent to commit larceny, and subsequently both were convicted as habitual offenders, Ingham Circuit Court, James T. Kallman, J. Both defendants appealed, raising a number of issues, and the cases were consolidated for hearing and decision. Held:

    1. A tape recording was made of the breaking and entering by a surveillance alarm service, and at the trial a filtered copy of the tape, which emphasized speaking voices and suppressed background noises, was admitted and played for the jury. The defendants claim that the admission of the filtered tape was error because it was not an accurate reproduction of the original. There is no dispute as to the authenticity of the original. Admission of the copy was not error where there was testimony regarding its accuracy and the trial judge listened to both tapes before admitting the copy, and where there was sufficient evidence to establish the chain of custody of the tapes.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 436.
    Admissibility of sound recordings in evidence. 58 ALR2d 1024.
    Omission or inaudibility of portions of sound recording as affecting its admissibility in evidence. 57 ALR3d 746.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 18. 47 Am Jur 2d, Jury §§ 272, 273, 308.
    Juror’s presence at or participation in trial of criminal case (or related hearing) as ground of disqualification in subsequent criminal case involving same defendant. 6 ALR3d 519.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 6 et seq.

    What constitutes former "conviction” within statute enhancing penalty for second or subsequent offense. 5 ALR2d 1080.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 9.

       21 Am Jur 2d, Criminal Law § 189.

       13 Am Jur 2d, Burglary §§ 24, 29.

       21 Am Jur 2d, Criminal Law § 315.

       29 Am Jur 2d, Evidence §§ 320, 321, 327.

       29 Am Jur 2d, Evidence §§ 555-557.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.
    What constitutes "custodial interrogation” within rule of Miranda v Arizona requiring that suspect be informed of his federal constitutional rights before custodial interrogation. 31 ALR3d 565.

      2. Defendants were sufficiently notified of the prosecutor’s intention to file supplementary informations on the habitual offender charges even though they did not actually receive copies of those supplemental informations.
    3. The trial court’s decision to impanel the same jury which heard the principal case to hear the habitual offender charges was not an abuse of discretion. After that decision the defendants knowingly and voluntarily chose to have a bench trial on the habitual offender charges. No harm resulted to defendants from this procedure.
    4. The defendants’ assertions of a right to a hearing on the validity of their prior convictions has not been preserved for appellate review.
    5. Arraignment on the habitual offender charges and the hearing on those charges were conducted properly.
    6. The habitual offender statute is constitutional.
    7. Breaking and entering with intent to commit larceny is not included within the offense of attempted safe-breaking. The conviction of both offenses arising out of the same criminal episode does not constitute double jeopardy.
    8. Defendant Alexander was not denied the effective assistance of counsel.
    9. Evidence of defendant Schram’s prior conviction was properly admitted for purposes of impeachment.
    10. Statements made by defendant Schram to a police officer at the scene of the crime were properly admitted into evidence even though the officer had not given the defendant Miranda warnings prior to asking certain questions of the defendant. The questions and answers were intended, as a matter of preliminary investigation, to gather sufficient facts to determine whether or not a crime had been committed. This was not custodial interrogation and Miranda warnings were not required.
    11. Failure of defense counsel to produce a certain witness was not error where the trial court found that the witness’s testimony would have been detrimental to the defendants.
    Affirmed.
    1. Criminal Law — Evidence — Duplicates — Tape Recordings.
    A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original; therefore, a filtered tape recording of an incident involving a breaking and entering, on which the background noise present on the original recording had been electronically suppressed, was properly admitted into evidence where there was no dispute as to the original’s authenticity and where there was testimony regarding the filtered copy’s accuracy and genuineness as well as sufficient testimony to establish the chain of custody of the recordings (MRE 1003).
    2. Jury — Criminal Law — Habitual Offenders — Judge’s Discretion.
    The same jury that convicts a defendant of a charge may subsequently sit at a trial on a habitual offender charge against the defendant; a defendant has no absolute right to a new jury when tried as a habitual offender, rather, it is within the sound discretion of the trial court to determine whether or not to impanel a new jury after a careful balancing of the costs and inconvenience against the possibility of prejudice to the defendant.
    3. Criminal Law — Habitual Offenders.
    The single element to be determined at a habitual offender proceeding is the existence of any prior convictions.
    4. Criminal Law — Sentencing — Prior Convictions — Invalid Convictions.
    A defendant who seeks to show that a prior conviction was constitutionally invalid and therefore an improper subject for consideration by a sentencing judge must present (1) prima facie proof that the previous conviction was constitutionally defective, such as a docket entry showing the absence of counsel or a transcript evidencing the same, or (2) evidence that he has requested such records and has not received them.
    5. Criminal Law — Same Transaction — Double Jeopardy.
    The "same transaction” test requires that all criminal charges against a defendant arising out of the same transaction be joined at one trial; charging a defendant with separate and distinct offenses growing out of the same criminal episode does not in and of itself constitute double jeopardy.
    6. Criminal Law — Breaking and Entering — Safe-Breaking — Included Offenses.
    The crime of breaking and entering with intent to commit larceny is not included within the crime of attempted safe-breaking; each offense requires proof of a fact which the other does not.
    7. Criminal Law — Attorney and Client — Effective Assistance of Counsel.
    A defendant was not denied effective assistance of counsel where his attorney performed at least as well as an attorney with ordinary training and skill in the criminal law and did not commit an error of such serious proportion as to necessitate the granting of a new trial.
    8. - Criminal Law — Evidence — Impeachment — Prior Convictions.
    The criteria to be weighed in determining whether evidence of a defendant’s prior conviction should be admitted for impeachment purposes are: (1) the nature of the prior offense; (2) whether the prior conviction is for substantially the same conduct for which the defendant is on trial; and (3) the effect on the decisional process if the defendant does not testify out of fear of impeachment by the evidence of a prior conviction.
    9. Criminal Law — Questioning Defendants — Miranda Warnings.
    Police officers are not required to give Miranda warnings to everyone they question, but only where there has been such a restriction on a person’s freedom as to render him "in custody”; inquiries made of a defendant as a matter of preliminary investigation to gather sufficient facts to determine whether or not a crime has been committed do not require the giving of warnings.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and (in Schram) Janis L. Blough, Assistant Prosecuting Attorney, for the people.

      Paul E. Lincolnhol, for defendant Schram on appeal.

      Kenneth G. DeBoer, for defendant Alexander on appeal.
    Before: Bashara, P.J., and M. J. Kelly and D. R. Freeman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   M. J. Kelly, J.

On January 26, 1979, codefendants Michael Schram and Paul Alexander were convicted by a jury of attempted safe-breaking, contrary to MCL 750.351; MSA 28.799, and breaking and entering with intent to commit larceny, contrary to MCL 750.110; MSA 28.305. Following a bench trial on January 27, 1979, both defendants were convicted as habitual offenders, MCL 769.13; MSA 28.1085. Defendant Alexander received a sentence of 7-1/2 to 30 years imprisonment with a jail time credit of 138 days. Defendant Schram was sentenced to a term of 25 to 40 years imprisonment with jail time credit of 174 days. Defendants appeal as of right.

Defendants were arrested on October 26, 1978, at 608 North Larch Street, Lansing, Michigan, which is the location of Jack’s Automotive Service, owned by Mr. Jack Woodward. Mr. Woodward testified that when he closed his garage on October 26, 1978, he telephoned the Sonitrol Alarm System Company and requested that his alarm system be activated. The system included two microphones which enabled Sonitrol to monitor noises throughout the garage and switches which set off an alarm in the Sonitrol office when a door or window was opened.

Ann Steffen, an employee of Sonitrol, testified that she was on duty on the evening in question and that at 11:27 p.m. she monitored unusually loud noises at Jack’s Automotive Service, after which a door opened. Ms. Steffen made a tape recording of the incident covering the period from 11:28 p.m. until she heard police arrive at the scene. Ms. Steffen identified the cassette recording at trial and there was additional testimony by the president and vice-president of Sonitrol concerning the chain of custody of the recording.

Officer Malcolm Hall testified that he made a filtered copy of the original recording. He stated that the filtering process does not alter the tape in any way other than emphasizing the speaking voices while reducing background noise interference. Police Detective Homer Phelps testified concerning the chain of custody of the cassette tape recording in the hands of the police department.

Dr. Oscar Tosí, a voice identification expert from Michigan State University, explained the procedure he followed in making the filtered copy of the original recording and the filtered tape was subsequently played for the jury over defense counsel’s objection. Pursuant to a jury request, the filtered tape was played a second time during the deliberation stage of the proceedings.

On the day following return of the jury’s guilty verdict, the trial court began the habitual offender proceeding. The trial court denied defense counsel’s motion for adjournment, indicating that defendant could attack the validity of his prior convictions in a Tucker hearing subsequent to the habitual offender proceeding and prior to sentenc ing. Following the court’s further denial of a motion for a new jury, both defendants, contrary to advice of counsel, waived the right to a jury trial and were subsequently found guilty by the court of being habitual offenders.

I. Issues Raised by both Defendant Schram and Defendant Alexander.

Defendants claim that the trial court erred in admitting the filtered tape recording into evidence and in allowing that recording to be played for the jury at both the evidentiary and deliberation stages of the proceedings on the grounds that it was not an accurate reproduction of the original. MRE 1003 provides the following guidelines for the admission of duplicates:

"A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”

Since the authenticity of the original tape is not disputed by defendants, we need only decide whether, under the circumstances, it was unfair to admit the duplicate in lieu of the original. The record reveals that before deciding to admit the filtered tape, the trial court heard testimony regarding its accuracy and genuineness and, out of the jury’s presence, listened to both recordings and concluded that the only difference was the reduced amount of background noise on the duplicate. Our review of the record indicates that the people produced sufficient evidence on the question of chain of custody of the recordings to withstand defendants’ challenge on that basis. See People v Taylor, 18 Mich App 381, 383-384; 171 NW2d 219 (1969), aff'd 386 Mich 204; 191 NW2d 310 (1971), People v Stevens, 88 Mich App 421, 424; 276 NW2d 910 (1979).

In light of the proper foundation laid by the people in seeking admission of the challenged evidence, the trial court’s care and diligence in dealing with this matter, and guided by the Fifth Circuit’s decision in Fountain v United States, 384 F2d 624 (CA 5, 1967), cert den sub nom Marshall v United States, 390 US 1005; 88 S Ct 1246; 20 L Ed 2d 105 (1968) we find no error in the admission of the filtered tape.

In Fountain, the defendants were convicted of the illegal sale or distribution of narcotic drugs, bribery of public officials, soliciting and accepting bribes, and aiding and abetting solicitation. At the defendants’ trial, there was received into evidence and presented to the jury a tape-recorded telephone conversation involving the defendants. The defendants appealed the reception into evidence of copies of the original recording on the grounds that no justification was shown for not using the original tapes and that the noise suppression may have eliminated part of the conversation, thus making the copies unreliable. In Fountain, as in the present case, both the original and the copy of the original recording were admitted and in both cases the copy of the original recording was a filtered copy. In both cases there was testimony by experts indicating that the copy was an accurate reflection of the original. The Fountain Court held that:

"The existence of a significant degree of background noise which might well have interfered with the jury’s ability to understand the substance of the conversations, plus the availability of a reliable method of removing the interference by making a copy and running it through the noise suppression device sufficiently justify the admission and use of the copy. The District Court found, and it is not seriously disputed here, that the copy was an accurate reflection of the conversations transcribed on the original tape. Considering the strong showing here of the accuracy and reliability of the copy and its value in making the conversations more easily discernible, its admission was not error.” Fountain, supra, 631.

The Fountain Court relied on United States v Hall, 342 F2d 849 (CA 4, 1965), in which the Fourth Circuit reached an identical conclusion under similar circumstances. Defendant in Hall challenged the admission of a tape copy of an original wire recording and the written transcript of the conversation on the grounds that the duplicate was untrustworthy and that allowing the jury to hear both the original recording and the copy placed unwarranted emphasis on this evidence. The Court in Hall held that it was within the discretion of the trial court to determine the necessity and effect of admitting the evidence and declined to disturb its ruling. Based upon the same reasoning, we approve of the court’s decision in the case before us. Having concluded that the filtered tape was indeed admissible evidence, the decision to permit the second playing during the deliberation stage differs little from the typical compliance with a jury request for a reading back of certain portions of trial testimony. See Moldovan v Allis Chalmers Mfg Co, 83 Mich App 373, 384; 268 NW2d 656 (1978), lv den 406 Mich 916 (1979), and cases cited therein.

Defendants jointly and individually claim several errors with regard to the habitual offender trial: 1) that they were not arraigned on the habitual offender charges until after trial on the principal offense, nor advised by their attorney of these charges; 2) that the trial court should have granted the motion for adjournment; 3) that the trial court abused its discretion in denying the motion for a new jury; 4) that defendants were not properly identified at the habitual offender trial; 5) that defendants were entitled to a Tucker hearing before or during the habitual offender proceeding; and 6) that conviction under the habitual offender statute, MCL 769.13; MSA 28.1085, constitutes a violation of the constitutional guarantee against double punishment.

Both defendants testified at trial on the principal charges and were impeached on cross-examination by evidence of prior convictions. Due to an admitted oversight on the part of defense counsel, defendants did not receive copies of the supplemental informations filed by the prosecutor charging them as habitual offenders. Defense counsel did, however, advise them of the likelihood of such charges and the prosecutor informed them of his intention to file the charges at the arraignment on the principal offenses.

In People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), this Court approved the procedure whereby the same jury that convicts a defendant of the current principal charge subsequently sits at the trial on the recidivist issue. Subsequent decisions of this Court confirm the rule that a defendant has no absolute right to a new jury when tried as an habitual offender. People v Eroh, 47 Mich App 669, 676; 209 NW2d 832 (1973), People v Elmore, 92 Mich App 678, 684-685; 285 NW2d 417 (1979). It is within the sound discretion of the trial court to impanel a new jury after a careful balancing of the costs and inconvenience against the possibility of prejudice to the defendant. Stratton, supra, 360. When presented with the motion for a second jury, the trial court in the instant case articulated the following rationale for denying defendants’ request:

"Regarding the separate Jury panel, this Jury has been instructed quite clearly that any admissions of any prior convictions cannot be used for the purpose of determining the guilt or innocence of the individuals in the prior trial. I said that several times to the Jury. And the Court, as I understand the law in this state, until it is changed — and I don’t make the law; I follow the law to the best of my ability. They say that the same Jury can be used, that they are properly impaneled, and I will give them the instructions that they are to make their decision based upon — only on the evidence they hear in this Court as to whether or not— their habitual — and not what they heard in the prior trial. I will make that instruction before we start. Okay. Anything else? So, that motion is denied.”

It is therefore clear on the record that the trial court made every effort to avoid prejudice to the defendants and felt that impaneling a new jury was not necessary to achieve that end.

Defendants, upon denial of the motion, waived the right to a jury trial and the habitual offender hearing was conducted with the court as trier of fact. Defendants made this choice knowingly and voluntarily and cannot now claim that this procedure resulted in harm._

With regard to defendants’ asserted right to a Tucker hearing we find that the issue has not been properly preserved for appellate review. The trial court indicated a willingness to conduct a hearing on the validity of defendants’ prior convictions before sentencing; it was not obligated to consider the issue during the course of the habitual offender proceeding since the single element to be determined at such a hearing is the existence of any prior convictions. People v Hastings, 94 Mich App 488; 290 NW2d 41 (1979), Stratton, supra.

If, in fact, defendants’ prior convictions were constitutionally invalid and therefore an improper subject for consideration by the sentencing judge, defendants were required to present "(1) prima facie proof that the previous conviction was constitutionally defective, such as a docket entry showing the absence of counsel or a transcript evidencing the same or (2) evidence that he has requested such records and has not received them”. People v Triplett, 91 Mich App 82, 87; 283 NW2d 658 (1979), rev’d on other grounds 407 Mich 510; 287 NW2d 165 (1980), People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Defendants herein failed to act on the trial court’s suggestion to schedule such a hearing prior to sentencing and up to the time of this appeal have failed to invoke a Tucker hearing by offering the above required evidence.

We have examined those claims concerning arraignment on the habitual offender charges, identification evidence at the recidivist trial, and the constitutionality of the habitual offender statute and find them to be without merit. The filing of the supplemental information prior to the principal trial, arraignment just prior to the habitual offender hearing and the hearing itself were carried out in full compliance with the requirements set forth in MCL 769.13; MSA 28.1085 and case law. Defendants’ reliance on People v Cairns, 4 Mich App 633; 145 NW2d 345 (1966), is misplaced since the defendant in that case pled guilty to the habitual offender charges. Finally, the constitutional challenge raised here has previously proven unsuccessful. People v Potts, 55 Mich App 622; 223 NW2d 96 (1974), lv den 394 Mich 771 (1975).

II. Issues Raised by Defendant Alexander.

Defendant argues that he was improperly charged and convicted of two separate crimes based upon a single, continuous transaction. Defendant misstates and incorrectly applies the "same transaction” test adopted in People v White, 390 Mich 245; 212 NW2d 222 (1973), which requires that all criminal charges against a defendant arising out of the same transaction be joined at one trial. Charging defendant with separate and distinct offenses growing out of the same criminal episode does not in and of itself constitute a double jeopardy violation. The second prong of defendant’s double jeopardy claim is based upon a lesser included offense analysis. The Supreme Court has recently framed the issue in terms of whether the second charged offense is by definition, or factually, necessarily included within the greater offense. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). Defendant in Jankowski was convicted of armed robbery, larceny over $100 and larceny in a building as a result of one felonious taking. The Court vacated the larceny convictions based upon the following reasoning:

"To convict the defendant of the larceny charges, the jury was required to find him guilty of feloniously taking the cash register which contained $400 from within the gasoline station building. That was a necessary fact for conviction of both larceny in a building and larceny over $100. In further concluding that the cash register was taken from the presence of the attendant after he was put in fear by the thief s use of a weapon, the jury found the offense was aggravated to one of armed robbery, but in doing so the jury was required to rely upon the same proof that was necessary to convict of the larceny charges.” Jankowski, supra, 89.

In the instant case, the charge of breaking and entering with intent to commit larceny is not definitionally or factually included within the charge of attempted safe-breaking. Each offense requires proof of a fact which the other does not. Compare MCL 750.351; MSA 28.799 and MCL 750.110; MSA 28.305, Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). As the prosecutor’s brief correctly points out, "Not only was the cash register in the victimized building stripped of its change [defendant concedes the existence of evidence indicating that defendant Schram stole money from the cash register], but a radio in the premises was found wrapped in its own cord at a different location than where it had been when the business closed for the day.” Thus, the jury was not required to rely on the same proof of movement of and damage to the safe as evidence of the larcenous intent accompanying the breaking and entering of the building.

Finally, we have examined defendant’s ineffective assistance of counsel claim under the standards adopted in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), and find that defendant’s attorney performed at least as well as a lawyer with ordinary training and skill in the criminal law and that he did not commit an error of such serious proportion as to necessitate the granting of a new trial. Counsel’s admitted oversight in failing to send a copy of the supplemental information to defendant did not affect the outcome of the case since he did advise him of the probability of such a charge and the prosecutor expressed his intention to file a supplemental information at the arraignment stage. Defendant testified at the principal trial and was impeached with evidence of prior convictions after being fully advised of his rights.

III. Issues Raised by Defendant Schram.

Evidence of defendant’s 1968 conviction for armed robbery, for which he served a substantial prison sentence, was properly admissible under MRE 609. In the absence of affirmative misapplication of the admission criteria set forth in People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), we find no error in the trial court’s decision to admit evidence of defendant’s prior conviction for impeachment purposes.

Likewise without substance is defendant’s argument that statements made to the investigating officer at the scene of the crime should have been suppressed because defendant was not given Miranda warnings. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). The questions and answers complained of concerned whether defendants were employees of Jack’s Automotive Service, whether they had identification, and whether they had keys to the establishment. These inquiries were intended, as a matter of preliminary investigation, to gather sufficient facts to determine whether or not a crime had been committed. The prosecution is correct in its assertion that police questioning of defendant here did not require Miranda warnings since defendant was not subject to custodial interrogation, defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. Miranda, supra, 444.

This Court, in People v Martin, 78 Mich App 518; 260 NW2d 869 (1977), quoted the following language from Oregon v Mathiason, 429 US 492; 97 S Ct 711; 50 L Ed 2d 714 (1977), which is equally applicable here:

"Any interview of one suspected of a crime by a police officer will have Coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him 'in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Id. at 495; 97 S Ct at 714; 50 L Ed 2d at 719.

See People v Ridley, 396 Mich 603; 242 NW2d 402 (1976), People v Dunlap, 82 Mich App 171; 266 NW2d 637 (1978).

The remaining two issues raised by defendant concern defense counsel’s failure to produce witness Julian Maldonado and alleged prosecutorial suppression of the potentially favorable evidence. Defendant’s arguments do not merit extensive treatment. We quote with approval the trial court’s assessment of the situation in denying defendant’s motion for new trial:

"The Court: All right, gentlemen. I have heard the arguments of counsel. Frankly, I’m satisfied with the way defense counsel handled this case. I think he had a case that was extremely difficult to defend. If he had called Mr. Maldonado as a witness, he would have certainly been charged with ineffectiveness of being an attorney, because Mr. Maldonado’s testimony, as per his sworn affidavit, totally destroys and disagrees with Seram’s [sic] and Alexander’s testimony. If he had given the name sufficiently in advance and had Detective Phelps checked this out, I’m sure they would have been happy to call Mr. Maldonado as a rebuttal witness to challenge the testimony of Mr. Scram [sic] and Mr. Alexander.
"I don’t see where the failure to call or produce has in any way harmed or injured this particular Defendant. I think if anything, the failure to find him in time for the trial was definitely to the Defendant’s advantage. I see nothing here from this record that requires a granting of a Motion for New Trial. Your Motion is denied.”

Defense counsel performed competently. He did not commit an error so serious that in its absence defendant would have had a reasonably likely chance of acquittal. See Garcia, supra.

Affirmed.

        United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), established a defendant’s right to challenge the validity of prior convictions considered by the court in sentencing on the current charge when defendant was unrepresented by counsel on the earlier offenses.

       Federal Rule 1003 is identical with MRE 1003.

       Some states require that the same jury sit again, after determining defendant’s guilt on the current charge, and hear evidence of defendant’s previous felony convictions. E.g., Ark Stat Ann § 41-1005.
      In California the jury hears evidence on the current and habitual offender charges at the principal trial. Cal Penal Code §§644, 666, 667.5, see People v Womack, 252 Cal App 2d 761; 60 Cal Rptr 870 (1967), In re Yurko, 10 Cal 3d 857; 112 Cal Rptr 513; 519 P2d 561 (1974).

       In some other jurisdictions with similar recidivist statutes, a bench trial on the issue is statutorily mandated. E.g., Fla Stat Ann § 775.084, NY Crim Pro Law § 400.21 (McKinney, 1979).


text:
    PEOPLE v CRAWFORD
    Docket No. 45727.
    Submitted April 3, 1980, at Lansing.
    Decided June 17, 1980.
    Leave to appeal applied for.
    Defendant, Robert R. Crawford, was charged with forgery, uttering and publishing a forged instrument and being a habitual criminal, fourth offense, in the Jackson Circuit Court. Defendant was convicted, on his plea of nolo contendere, of forgery and, on his plea of guilty, of being a habitual criminal, second offense, Charles J. Falahee, J., and was sentenced to 6 to 14 years. Defendant appeals, alleging that his plea to being a habitual criminal, second offense, was illusory in that a prior plea-based conviction was invalid because he was not advised of his right to confront his accusers and his right not to be compelled to incriminate himself as required by Boykin v Alabama, 395 US 238; 89 S Ct 1090; 23 L Ed 2d 274 (1969), and People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). Held:

    1. Only those infirm prior guilty-plea convictions where defendant was not represented by counsel should be excised from a defendant’s prior record for purposes of the habitual offender statute.
    2. No prejudice or harm resulted to defendant.
    Affirmed.
    1. Criminal Law — Sentencing — Prior Convictions — Habitual. Offender.
    Only those infirm prior guilty-plea convictions where defendant was not represented by counsel should be excised from a defendant’s prior record for purposes of the habitual offender statute.
    2. Criminal Law — Plea of Guilty — Habitual Offender — Sentences — Prejudice.
    No prejudice resulted to a defendant who was charged with forgery, uttering and publishing and being a habitual criminal, fourth offense, and who was, at most, guilty of being only a third-felony offender where he pled nolo contendere to forgery and guilty to being a second-felony offender and received a total sentence of 6 to 14 years.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 486, 488. 39 Am Jtir 2d, Habitual Criminals and Subsequent Offenders § 9.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 7.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bashara, P.J., and M. J. Kelly and D. R. Freeman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, P.J.

Defendant was charged with forgery, MCL 750.248; MSA 28.445, uttering and publishing, MCL 750.249; MSA 28.446, and as a habitual offender, fourth felony. He was subsequently convicted, by a plea of nolo contendere, of forgery and, by a guilty plea, of being a habitual offender, second offense, MCL 769.10; MSA 28.1082.

On appeal, defendant’s primary claim is that the bargain resulting in his plea to being a habitual offender, second offense, was illusory. He argues that a prior plea-based conviction on June 13, 1969, was invalid because he was not advised of two of his rights under Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), and People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).

He therefore reasons that, at most, he could have been found guilty under the habitual offender statute as a third offender, which carries a maximum penalty of 28 years, rather than as a fourth offender, which provides a maximum possible penalty of life imprisonment. It should be noted that the defendant received only one conviction of 6 to 14 years imprisonment, with 228 days credit.

We reject defendant’s contention and affirm the conviction and sentence.

Those few cases in ouF Court which have spoken to the issue, People v Sanders, 91 Mich App 737; 283 NW2d 841 (1979), the majority opinion in People v Watroba, 89 Mich App 718; 282 NW2d 196 (1979), and People v Jones, 83 Mich App 559; 269 NW2d 224 (1978), have all relied on People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Moore, in turn, relied on United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).

In discussing the impact of Tucker on Michigan jurisprudence, the Moore Court stated:

"Tucker’s three previous state felony convictions preceded Gideon. It was established that two of them were constitutionally infirm because Tucker 'had been unrepresented by counsel, and that he had been "neither advised of his right to legal assistance nor [had] he intelligently and understandingly waive[d] [his] right to the assistance of counsel.” ’ 404 US 445. The Court, while reasserting the 'wide discretion’ granted a judge in sentencing, remanded for resentencing because the sentence 'might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained.’ The Court observed that if the sentencing judge 'had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent’s background would have appeared in a dramatically different light at the sentencing proceeding.’ 404 US p 448.
"Although Tucker arose in a Federal post-conviction proceeding challenging a Federal conviction and sentence, its retroactive application to state convictions has been accepted by a number of state courts, including our Court of Appeals. We conclude, in light of the consistent retroactive application in state criminal proceedings of Gideon and its progeny’s expansion of the right to counsel, that Tucker is applicable with full retroactivity to all sentences imposed by Michigan courts.” (Footnotes omitted.) People v Moore, supra, 436-437.

We conclude, as did this author in People v Watroba, supra, that only those prior guilty-plea convictions where the defendant was not represented by counsel should be excised from one’s prior conviction record for purposes of the habitual offender statute. See also, People v James, 90 Mich App 424; 282 NW2d 344 (1979).

However, assuming arguendo that defendant’s contention is correct, we cannot say that prejudicial error has occurred in the sentence of the trial court. The defendant was charged with two distinct felonies. Beyond that, he was guilty of violating the habitual offender statute as at least a third-felony offender.

Considering that defendant’s total sentence was only 6 to 14 years, it can hardly be said that defendant did not receive all that justice allows. Common sense and logic compels us to the inescapable conclusion that the defendant was neither prejudiced nor harmed by the inclusion of the contentious fourth-felony conviction, which was as a result of a plea taken only 11 days after the Boykin opinion was released from Washington.

We also find no merit to defendant’s claim that he was given two convictions and two sentences. The record reflects only one sentence and one conviction by the trial court.

Affirmed.


text:
    ARNETT v ARNETT
    Docket No. 45994.
    Submitted April 1, 1980, at Lansing.
    Decided June 17, 1980.
    Ella Arnett filed an action under the family support act in Jackson Circuit Court, alleging Daniel Arnett was her husband and the father of her three children and that he was financially able to provide child support. Daniel Arnett offered no defensive pleading, but appeared for the hearing. Gordon W. Britten, J., requested Mrs. Arnett’s counsel to adduce proof of the parties’ marriage and of Mr. Arnett’s paternity, and, upon counsel’s decline to do so, dismissed the cause for lack of jurisdiction to grant relief. Held:

    1. When no defensive pleading is offered, the claim or demand of the opposing party stands admitted, and judgment by default may be entered upon proof of damages.
    2. Mrs. Arnett’s counsel should have been permitted to cross-examine Mr. Arnett on the issue of his financial ability to provide child support, without first having to prove the parties’ marriage and Mr. Arnett’s paternity.
    Reversed and remanded.
    1. Parent and Child — Statutes — Family Support Act — Child Support — Procedure — Commencement of Actions — Legislative Intent.
    The fact that under the family support act proceedings are to be commenced by the filing of a verified complaint rather than a complaint accompanied by a supporting affidavit of facts and the complaint is to be heard in the manner of a motion demonstrates a legislative intent to provide an expeditious procedure for obtaining orders for child support (MCL 552.451, 552.452; MSA 25.222[1], 25.222[2]).
    2. Pleading — Judgments — Default — Admissions — Lack of Defensive Pleadings — Parties.
    A claim or demand of an adversary stands admitted and judgment by default may be entered upon proof of damages when no defensive pleading is offered (GCR 1963, 520.1, 520.2).

      References.for Points in Headnotes

       73 Am Jur 2d, Statutes § 145.

       47 Am Jur 2d, Judgments §§ 1152, 1166.

       56 Am Jur 2d, Motions, Rules, and Orders §§ 18, 22-26.

      3. Parent and Child — Statutes — Family Support Act — Hearings — Procedure — Trial Court — Testimony — Witnesses.
    The family support act directs that a hearing on a complaint proceed in the same manner as a hearing on a motion, thus a trial court may, in its discretion, take testimony of witnesses (MCL 552.452; MSA 25.222[2]).

      James O. Marks, for plaintiff.
    Before: Bashara, P.J., and M. J. Kelly and D. R. Freeman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   M. J. Kelly, J.

Plaintiff filed an action under the family support act, MCL 552.451 et seq.; MSA 25.222(1) et seq., for support. The complaint is a form, presumably prepared by the prosecutor’s staff or the Jackson County Department of Social Services, with blanks filled in by a typewriter, except for the signatures of the plaintiff, an assistant prosecuting attorney, and a notary public. A copy of it in its entirety is attached as Appendix "A”.

Defendant was personally served with the complaint, summons, and notice of hearing on May 16, 1979, and the hearing was set for June 22, 1979. Defendant filed no answer to the complaint but did appear in response thereto for the hearing. The assistant prosecutor read material portions of plaintiffs complaint and requested that the defendant be placed under oath so that he could be examined regarding his ability to pay support. The record is silent as to whether or not the plaintiff appeared at the hearing. The trial court instructed the prosecutor to adduce proof of the marriage between the parties and the paternity of the children before going into the question of ability to pay. We are not informed as to whether this was a Serafin issue, Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), or just a preference of the trial court. We are not enlightened as to whether this proof was to be supplied by placing the plaintiff under oath or by calling .the defendant for cross-examination on the matter. In any event, counsel declined the court’s request. The trial court then dismissed the cause with the following order:

"This cause having been brought on pursuant to the complaint of the plaintiff, Ella Arnett, alleging that the defendant, Daniel Arnett, has failed to contribute to the support of his minor children and the matter set for hearing, and plaintiff’s counsel having been requested by the Court to go into the matter whether the plaintiff and defendant were married and children born of that marriage before establishing ability to pay, and counsel having refused to establish a right to support from the defendant by questioning of the defendant prior to establishing his ability to pay, and the Court therefore being without jurisdiction to grant relief, and the Court being fully informed in the premises;
"IT IS HEREBY ORDERED that this cause be dismissed.”

Although the order seems to telegraph a Serafín issue by the words "establish a right to support from the defendant by questioning of the defendant”, it would be clear error to preclude the plaintiff herself from giving such testimony. So we are left with a bundle of surmises. Was the plaintiff uncooperative and/or unavailable? Was the defendant, though in default, unlettered, unrepresented? Was the defendant denying paternity? Were court and counsel involved in a procedural contest? Were court and counsel desirous of an appellate court precedent on the matter?

It is such a tempest in a teapot that we are engaged in what amounts to a declaratory proceeding, but we will declare.

The family support act provides in part:

"Any married woman, who has a minor child or children living with her and who is living separate and away from the father of the children, where the father fails to provide necessary shelter, food, care and clothing for them, if of sufficient ability to provide them, may complain to the circuit court of the county where she or the father resides for an order for support for herself and the minor child or children. The proceedings shall be commenced by the ñling of a complaint veriñed by the petitioner and by issuance of a summons which shall be personally served upon the father of the children and husband of the petitioner. No complaint shall be filed nor shall any summons issue if divorce or separate maintenance proceedings are then pending between the petitioner and her husband.” (Emphasis added.) (MCL 552.451; MSA 25.222[1].)
"Upon hearing of complaint, in the manner of a motion, the court may enter such order as it deems proper, for the support of the petitioner and the minor child or children of the parties. The order shall provide that all payments shall be made to the friend of the court. If the father opposes the entry of the order upon the ground that he is without sufficient ability to provide necessary shelter, food, care and clothing for his wife and children, the burden of proving such lack of ability shall be upon him. The order shall state in separate paragraphs the amount of support for the wife until the further order of the court, and the amount of support for each child until each child reaches the age of 18 years or until the further order of the court. In unusual circumstances the court may order support for such child after he reaches the age of 18 years and until he reaches the age of 21 years, or until the further order of the court.” (Emphasis added.) (MCL 552.452; MSA 25.222[2].)

The fact that the act requires filing of a verified complaint rather than a complaint accompanied by a supporting affidavit of facts, and that the complaint be heard in the manner of a motion demonstrates a legislative intent to provide an expeditious procedure for obtaining child support orders.

Plaintiff’s complaint alleged that defendant was her husband and the father of her children and that he was financially able to provide child support although his place of employment and average weekly earnings were listed as "unknown”. Defendant did not file an answer to plaintiffs complaint. When no defensive pleading is offered, the claim or demand of the opposing party stands admitted, and judgment by default may be entered upon proof of damages in the usual case. GCR 1963, 520.1-520.2, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 658-659. Because plaintiffs allegations were admitted, and, therefore, not at issue before the court, the court certainly could have accepted as fact the marriage and paternity information submitted under oath in her verified complaint. It probably had some good reason, but it is not revealed in the record.

On the other hand, examination into defendant’s financial status was necessary, despite his failure to respond to the complaint. The situation here is analogous to an entry of a default judgment which requires the court’s investigation into the matter in order to arrive at a sum certain, due and payable to plaintiff. See GCR 1963, 520.2(2).

The family support act directs that the hearing on the complaint proceed in the same manner as a hearing on a motion, which means that the trial court may, in its discretion, take testimony of witnesses. Case v City of Saginaw, 291 Mich 130; 288 NW 357 (1939). Defendant in the instant case was present at the hearing, and his testimony was essential to determine an appropriate amount of support based upon his income, due to his failure to supply this information iri a responsive pleading. The prosecutor should have been permitted to cross-examine defendant on the issue of his ability to pay, but without having to first prove the items in plaintiffs verified complaint pertaining to the marriage of the parties, dependents, and paternity.

The trial court’s dismissal of plaintiffs complaint is reversed, and the cause remanded for hearing solely on the issue of defendant’s ability to provide necessary support.

Reversed and remanded.

APPENDIX "A”

State of Michigan

In the Circuit Court for the County of Jackson

Ella Arnett,

Plaintiff

vs

„ Daniel Arnett,

Defendant

Complaint for Support

File No. 78-015543 DS

Plaintiff alleges:

I

Plaintiff resides in Jackson County, Michigan

II

Plaintiff and Defendant were married on 9-15-73 at Fitchburg, Michigan by a Minister, and are still married, but have been living separate and apart since on or about 5-3-78.

Ill

Plaintiff states that to her knowledge and belief there is not presently pending any divorce or separate maintenance proceeding between Plaintiff and Defendant.

IV

Plaintiff is the mother and Defendant is the father of the following named dependents:

Chassidy Arnett born 11-26-73_

Angela Arnett_, born 4-1-75_

Rhonda Arnett_, born 6-14-76_

_, born _

_, born _

_, born _

That said dependent(s) resided) with Plaintiff and is/are dependent upon her for care and maintenance.

V

Defendant is of sufficient ability to provide support for his children. That he is employed at Unknown with an average weekly earnings of Unknown.

VI

The minor children are in need and entitled to reasonable and necessary support from Defendant, and Defendant has refused and neglected and continues to refuse and neglect to provide support for said minor children.

VII

Plaintiff is a recipient of Public Welfare and is represented by the Prosecuting Attorney for Jackson County as authorized under the laws of the State of Michigan.

VIII

Plaintiff believes that Defendant will not provide necessary support for said minor children except under order of a court of competent jurisdiction. The Jackson County Department of Social Services had determined that the Plaintiff is eligible for public assistance. Wherefore, Plaintiff prays that the Defendant be ordered to pay a reasonable sum for the support of the minor children.

s/Ella Arnett_

Plaintiff

Ella Arnett

s/James O. Marks_

James O. Marks (P25747)

Assistant Prosecuting Attorney

950 West Monroe

Jackson, MI. 49202

State of Michigan )

) ss

County of Jackson )

On this JLI^ day of October , 19 78^ before me personally came the above-named Ella Arnett and made oath that she has herself read the foregoing Complaint by her subscribed, and knows the contents thereof, that the same is true of her own knowledge, except as to the matters which are therein stated to be of her information and belief, and as to those matters she believes is to be true.

s/Kathleen E. Deeds_

Kathleen E. Deeds (Eaton Co.)

Notary Public, Jackson Co., MI.

My commission expires:

KATHLEEN E. DEEDS

NOTARY PUBLIC, EATON CO., MICH

MY COMMISSION EXPIRES 8-31-82