Adkins v. Adkins
| Decision Date | 21 November 1989 |
| Docket Number | Docket No. 112716 |
| Citation | 181 Mich.App. 81,448 N.W.2d 741 |
| Parties | Brenda G. ADKINS, Plaintiff-Appellee, v. Terry D. ADKINS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Richard J. Collins, Southfield, for defendant-appellant.
Before MacKENZIE, P.J., and MARILYN J. KELLY and BURNS, * JJ.
Plaintiff and defendant were divorced in 1982. Plaintiff was awarded custody of the parties' three minor children. Defendant was ordered to pay weekly child support until each child attained the age of eighteen "or until the further order of the Court."
David, the parties' oldest child, turned eighteen on August 29, 1988. David has been a discipline problem throughout school and is presently at least three years away from graduation. He repeated the third and sixth grades. His record shows a pattern of absences and failing grades. He had attended an alternative education program, and at the time of the hearing had the option of continuing in the program, entering high school in the tenth grade, or entering an adult education program.
A month before David's eighteenth birthday, plaintiff filed a motion for modification of the parties' divorce judgment to provide for child support until the minor children "reach 18 years of age, or graduate from high school, whichever is later, or, in exceptional circumstances, until further order of the Court." See MCR 3.209(B)(1)(b). On August 30, 1988, the circuit court ordered that child support for David continue one more year by saying that it expected David to have completed the equivalent of the tenth grade by the end of the year.
Defendant appeals the trial court's order of post-majority support payments. We affirm.
The statutory provision granting jurisdiction over support matters allows the circuit court to require a parent to pay support until each child is eighteen or "in case of exceptional circumstances, ... after he obtains that age." M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1). The court rule dealing with child support provides that
(1) A support order or final judgment must
* * * * * *
(b) provide for payment for a child until the child reaches the age of majority or graduates from high school, whichever is later, or, in exceptional circumstances, until further order of the court. [MCR 3.209(B)(1)(b).]
Finally, the Age of Majority Act provides that a person who attains eighteen years of age "is deemed to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age." M.C.L. Sec. 722.52; M.S.A. Sec. 25.244(52).
There is a conflict in this Court on the question whether circuit courts ever have jurisdiction to order support payments beyond a child's eighteenth birthday. Compare Sumerix v. Sumerix, 106 Mich.App. 7, 307 N.W.2d 727 (1981), and McNames v. McNames, 93 Mich.App. 477, 286 N.W.2d 892 (1979), with Smith v. Smith, 163 Mich.App. 423, 426, 414 N.W.2d 906 (1987), lv. gtd. 430 Mich. 890, 425 N.W.2d 76 (1988). We do not believe that the Age of Majority Act precludes the award of post-majority support. Rather, we agree with the cases holding that the award of post-majority support is within the jurisdiction of the court when a showing of exceptional circumstances has been made. See also Dean v. Dean, 175 Mich.App. 714, 715, 438 N.W.2d 355 (1989); Paaso v. Paaso, 170 Mich.App. 628, 428 N.W.2d 724 (1988). A contrary construction would render the "exceptional circumstances" clause mere surplusage. Smith, supra, 163 Mich.App. at 426, 414 N.W.2d 906.
There is also a conflict in this Court over whether the fact that a child has not graduated from high school by age eighteen qualifies as an "exceptional circumstance." What constitutes an exceptional circumstance is not plain on the face of the statute. Paaso, supra, 170 Mich.App. at 636, 428 N.W.2d 724. The Paaso Court determined:
It is possible that the Legislature concluded that a minority of high school students graduate after their eighteenth birthday and that provision for their support would therefore be exceptional. Such a reading of the intent of the jurisdictional statute comports with common sense, sound public policy, and the purpose of the statute, particularly in light of the Supreme Court's adoption of the court rule and comments in Price [v Price, 395 Mich 6; 232 NW2d 630 (1975) ]. [Id. 170 Mich.App. at 637-638, 428 N.W.2d 724.]
In contrast, another panel of this Court concluded that "the trial court lacks the authority to continue child support past the age of eighteen merely because the child remains in school." Dean, supra, 175 Mich.App. at 716, 438 N.W.2d 355.
It is not clear from the facts of Paaso and Dean whether graduation in those cases was delayed as a "result of a decision made by both parents prior to kindergarten as to whether to hold the child back a year for maturation purposes." Paaso, supra, 170 Mich.App. at 635, n 1, 428 N.W.2d 724. Nor is it clear whether discipline and attendance problems were factors, as they are in the present case. Neither opinion appears to weigh the amount of additional time required for graduation, although it is evident in Paaso that the child was scheduled to graduate fourteen months after turning eighteen.
Dean relied on Smith, supra, for the proposition that "the 'exceptional circumstances' language of the statute refers to situations such as a child suffering from a severe handicap." Dean, supra, 175 Mich.App. at 720, 438 N.W.2d 355. Smith did not limit exceptional circumstances to handicaps, however. Rather, the significance of Smith was that it recognized that the award of post-majority support is within the jurisdiction of the court when a showing of exceptional circumstances has been made. Smith, supra, 163 Mich.App. at 426, 414 N.W.2d 906. The Court in Smith remanded the case to the lower court for a determination of whether such circumstances existed where the child was "acutely handicapped due to genetic abnormalities." Id. at 424, 414 N.W.2d 906.
We are inclined to agree with Paaso that, for jurisdictional purposes, the lack of a high school diploma by age eighteen is an exceptional circumstance. We reach this decision by again looking at Dean. In refusing to recognize jurisdiction where a child has "merely" failed to complete high school by age eighteen, Dean relied on Felcoski v. Felcoski, 159 Mich.App. 762, 407 N.W.2d 11 (1987), for the proposition that "except for exceptional circumstances, a circuit court lacks jurisdiction to order the payment of child support beyond the age of eighteen." Dean, supra, 175 Mich.App. at 715, 438 N.W.2d 355. Yet Felcoski followed McNames in determining that the "circuit court's authority to order child support ... is clearly limited to defendant's minor children." Felcoski, supra, 159 Mich.App. at 765, 407 N.W.2d 11. Felcoski did not recognize the possibility of post-majority support in exceptional circumstances. Id. at 764-765, 407 N.W.2d 11.
Contrary to Felcoski, we have concluded that jurisdiction to award support for adult children does exist in exceptional circumstances. See Smith, supra, and Paaso, supra. Because we thus reject the reasoning in Felcoski, we do not feel bound to follow Dean's determination regarding high school graduation. We hold, following the reasoning of Paaso, that a trial court has the power to order child support beyond a child's eighteenth birthday and until he graduates from high school. Paaso, supra, 170 Mich.App. at 638, 428 N.W.2d 724.
Having determined that the trial court in this case had jurisdiction to award support for David, we must now decide whether the decision to grant post-majority support was correct. Cf. Norden v. Norden, 173 Mich.App. 826, 831, 434 N.W.2d 256 (1988).
Defendant expressed justifiable concern that granting support for a child over eighteen who is not making satisfactory progress toward completion of high school could lead to payments for an indefinite period; many people never graduate from high school. Defendant also warns of the risk of "rewarding non-effort": in order to maintain support payments, custodial parents may neglect their duties and allow their children to fall behind in school.
Clearly, the present case differs from that where a child is due to graduate from high school several months after turning eighteen, having made satisfactory academic progress. For guidance in dealing with this less clear-cut situation, we...
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