Alpena Friend of Court ex rel. Paul v. Durecki

• Decision Date: 03 September 1992
• Docket Number: Docket No. 128559
• Citation: 491 N.W.2d 864,195 Mich.App. 635
• Parties: . PAUL, Petitioner-Appellee, v. Arnold DURECKI, Respondent-Appellant. Court of Appeals of Michigan
• Court: Court of Appeal of Michigan — District of US

Page 864

491 N.W.2d 864

195 Mich.App. 635

ALPENA Friend of the Court ex rel. PAUL Petitioner-Appellee, v. Arnold DURECKI, Respondent-Appellant.

Docket No. 128559.

Court of Appeals of Michigan.

Submitted Nov. 5, 1991, at Lansing.

Decided June 16, 1992.

Approved for Publication Sept. 3, 1992, at 9:10 a.m.

Released for Publication Nov. 19, 1992.

Donald G. Field, Troy, for respondent-appellant.

Roland C. Fancher, Alpena, amicus curiae, Alpena Friend of the Court.

Before MacKENZIE, P.J., and SULLIVAN and ALLEN, ^* JJ.

PER CURIAM.

Respondent appeals from an opinion and order, which essentially denied his motion to dismiss proceedings to enforce payment of his child support arrearage. We affirm.

Respondent and the relator were divorced in 1962. At the time of the divorce, they had two minor children. Respondent was ordered to pay child support of $10 a week for each child. This amount was never modified.

The record establishes that respondent was chronically in arrears on his child support obligation despite repeated attempts to collect from him. The record also suggests that there had been ongoing negotiations between respondent and petitioner regarding payment of the arrearage. In 1988, respondent made ten payments to petitioner in an effort to reduce the arrearage. This case arises from a bench warrant issued in June 1989, when respondent's arrearage was approximately $8,400.

At a hearing on the bench warrant, respondent indicated that his last support payment was due on August 21, 1977, the date the younger child reached the age of majority. Respondent argued that the proceedings against him should be dismissed because enforcement of the support obligation was being sought more than ten years after that date, contrary to the ten-year statute of limitation for actions founded upon a court judgment, M.C.L. Sec. 600.5809(3); M.S.A. Sec. 27A.5809(3). The petitioner's position was that the ten-year limitation period did not apply to this case, but that even if it did, respondent's payments made after the expiration of the limitation period waived the statute of limitation defense.

The trial court ruled that the ten-year limitation period applied, citing M.C.L. Sec. 552.603; M.S.A. Sec. 25.164(3), which provides that a support order is a final judgment on or after the date each support payment is due. However, the court agreed with the petitioner that payments made after the limitation period operated as an acknowledgment of respondent's child support obligation and as a waiver of the defense of the statute of limitation.

On appeal, respondent contends that the trial court erred in concluding that he waived the limitation period as a defense by making payments on the arrearage. Petitioner has not cross appealed the court's decision regarding the applicability of the statute of limitation. We note, however, that this Court recently held that the ten-year limitation period of M.C.L. Sec. 600.5809(3); M.S.A. Sec. 27A.5809(3) applies to an action to collect a child support arrearage. Ewing v. Bolden, 194 Mich.App. 95, 486 N.W.2d 96 (1992).

In arguing that his payments did not waive the statute of limitation defense, respondent relies on M.C.L. Sec. 600.5865; M.S.A. Sec. 27A.5865 and M.C.L. Sec. 600.5866; M.S.A. Sec. 27A.5866, which allow revival of time-barred obligations to pay contractual debts on the basis of certain writings. These statutes are inapposite to the situation in this case, however. As stated by our Supreme Court in Miner v. Lorman, 56 Mich. 212, 216, 22 N.W. 265 (1885), in discussing the identical predecessor statutory provisions:

The statute does not prescribe what effect part payment of a demand shall have, but it is familiar law that it operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment being made. The...