Department of Social Services v. Brewer

Decision Date26 October 1989
Docket NumberDocket No. 110918
Citation180 Mich.App. 82,446 N.W.2d 593
PartiesDEPARTMENT OF SOCIAL SERVICES, ex rel. Leanna Brewer, Plaintiff-Appellant, v. Rodney BREWER, Defendant-Appellee. 180 Mich.App. 82, 446 N.W.2d 593
CourtCourt of Appeal of Michigan — District of US

[180 MICHAPP 82] Abby Rahn, Paw Paw, for plaintiff-appellant.

Before DANHOF, C.J., and HOOD and MARILYN KELLY, JJ.

MARILYN J. KELLY, Judge.

Plaintiff Department of Social [180 MICHAPP 83] Services appeals as of right on behalf of Leanna Brewer from the circuit court's order of support entered pursuant to the Family Support Act. M.C.L. Sec. 552.451 et seq.; M.S.A. Sec. 25.222(1) et seq. The issue is whether under the act a court may award child support retroactive to a date before the filing of an action when financial assistance by the noncustodial parent ceased. We conclude that it may and reverse the trial court's order.

Defendant Rodney Brewer left Leanna and their two minor children on April 11, 1986. Leanna and the children began receiving public assistance on July 1, 1986. Leanna assigned her right to collect support from defendant to the DSS.

On August 4, 1986, the DSS filed a claim for child support under the Family Support Act. M.C.L. Sec. 552.451b; M.S.A. Sec. 25.222(1b). Defendant was personally served with notice of this action on August 21. On September 16, 1986, Leanna filed for divorce.

Under the act, the judge ordered defendant to pay support in the amount of $75 per week from August 11, 1986, through September 28, 1986. He denied Leanna's request for retroactive support for the four-month period between the separation and the filing of the Family Support Act action. The judge concluded that the act did not grant him the authority to order support for the period prior to the filing of the complaint.

The Family Support Act authorizes an action for support under the following circumstances:

Any married parent who has a minor child or children living with him or her and who is living separate and away from his or her spouse who is the noncustodial parent of the child or children, and who is refused financial assistance by the noncustodial parent to provide necessary shelter, food, care, and clothing for the child or children, if the spouse is of sufficient financial ability to provide [180 MICHAPP 84] such assistance, may complain to the circuit court for the county where either parent resides for an order for support for himself or herself and the minor child or children. The proceedings shall be commenced by the filing of a complaint verified by the petitioner and by issuance of a summons which shall be personally served upon the noncustodial parent of the children and spouse of the petitioner. A complaint shall not be filed nor shall any summons issue if divorce or separate maintenance proceedings are then pending between the petitioner and his or her spouse. [M.C.L. Sec. 552.451; M.S.A. Sec. 25.222(1).]

The act does not specify when the support may be made to commence.

Judicial construction is appropriate here, as reasonable minds may differ as to the interpretation to be given the statute. Sam v. Balardo, 411 Mich. 405, 418, 308 N.W.2d 142 (1981). The primary rule of statutory construction is to ascertain and effectuate the intent of the Legislature. Statutory language should be construed reasonably, keeping in mind the purpose and objective of the act. Cliffs Forest Products Co. v. Al Disdero Lumber Co., 144 Mich.App. 215, 222, 375 N.W.2d 397 (1985).

The purpose of the Family Support Act is set forth in its preamble:

AN ACT to confer jurisdiction upon the circuit courts to order and enforce the payment of money for the support, in certain cases, of parents having physical custody of minor children and of minor children by noncustodial parents; to provide for the termination of the effectiveness of the orders; and to provide for the payment of fees and assessment of costs in those cases.

The act was intended to avoid duplication of judicial effort where a divorce action is also involved. [180 MICHAPP 85] Titler v. Titler, 66 Mich.App. 654, 657, 239 N.W.2d 699 (1976). If an action is filed first under the act, then the support order eliminates the need for an interim support order in the divorce action. Id. A complaint for support under the act cannot be filed if a divorce action has already been initiated. M.C.L. Sec. 552.451; M.S.A. Sec. 25.222(1).

In this case, the trial judge determined that the support provision of the divorce act would be pertinent to interpretation of the Family Support Act. He noted that a support decree in a divorce action is available only during the pendency of the action. M.C.L. Sec. 552.15; M.S.A. Sec. 25.95. He believed that the Legislature did...

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