Evink v. Evink, Docket No. 178063

Citation214 Mich.App. 172,542 N.W.2d 328
Decision Date31 October 1995
Docket NumberDocket No. 178063
PartiesTeresa Mae EVINK, Plaintiff-Appellee, v. Donald Gene EVINK, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Jane A. Vandervelde, Holland, for plaintiff.

John A. Watts, Allegan, for defendant.

Before DOCTOROFF, C.J., and NEFF and FITZGERALD, JJ.

PER CURIAM.

Defendant appeals by delayed leave granted from a judgment of divorce entered on May 3, 1994, in the Allegan Circuit Court. Defendant specifically challenges the trial court's decision to order him to pay $101 a week in child support. We affirm.

I

The parties to this action were married on November 10, 1984. Three children were born of the marriage. The parties separated in December 1991. At that time, defendant was ordered to pay $133 a week in child support. In December 1991, a child neglect petition was filed in the Allegan County Probate Court alleging that defendant was physically and sexually abusing his children. Defendant ultimately pleaded no contest to the allegations in the neglect petition.

In February 1993, plaintiff filed a petition for divorce. In October 1993, defendant voluntarily terminated his parental rights. Custody remained with plaintiff. The judgment of divorce was entered on May 3, 1994, and included provisions for child custody and child support. Plaintiff was to have physical and legal custody of the three children. Defendant was to pay $101 a week in child support. Defendant objected to paying any child support, contending that because his parental rights had been terminated, he was not obligated to support the children. The trial court did not agree with defendant's position and ordered him to pay the child support.

Defendant then filed a delayed application for leave to appeal, which this Court granted on December 13, 1994. The sole issue raised by defendant is whether he is obligated to pay child support where his parental rights have been terminated. We hold that, under the facts of this case, defendant is obligated to pay the child support ordered by the trial court.

II

The biological parents of a child are obligated to support and maintain that child unless a court modifies or terminates the obligation or the minor is emancipated. M.C.L. § 722.3(1); M.S.A. § 25.244(3)(1). This Court has held that, absent adoption, the obligation to support a child remains with the natural parents. Wilson v. General Motors Corp., 102 Mich.App. 476, 480, 301 N.W.2d 901 (1980); Tilley v. Tilley, 195 Mich.App. 309, 313, 489 N.W.2d 185 (1992); Tanielian v. Brooks, 202 Mich.App. 304, 307, 508 N.W.2d 189 (1993). In this case, the three minor children were not emancipated under M.C.L. § 722.4; M.S.A. § 25.244(4). There was no emancipation within the meaning of M.C.L. § 722.1(c); M.S.A. § 25.244(1)(c) because that section requires the termination of the rights of both parents. Further, there was no adoption in this case because plaintiff has had physical and legal custody of the children since the judgment of divorce was entered.

A

Defendant relies on Bradley v. Fulgham, 200 Mich.App. 156, 503 N.W.2d 714 (1993), in support of his position that termination of his parental rights also terminates his obligation to pay child support. We find Bradley to be distinguishable. In Bradley, the parties were never married, but had one child together. The defendant mother voluntarily terminated her parental rights pursuant to the Adoption Code, M.C.L. § 710.21 et seq.; M.S.A. § 27.3178(555.21) et seq. Under the Adoption Code, if the child is born out of wedlock and the mother's parental rights are terminated under the Adoption Code, the court may award custody to the putative father. M.C.L. § 710.39; M.S.A. § 27.3178(555.39). Therefore, the Adoption Code specifically provides for the support of a child where only the mother's parental rights are terminated and custody is awarded to the father.

The instant case does not involve the Adoption Code in the manner in which it was involved in Bradley. The children have never been placed in foster care or for adoption. Thus, we do not follow Bradley because that case involved application of M.C.L. § 710.39; M.S.A. § 27.3178(555.39) where the parents were never married, the mother voluntarily released her parental rights, and the father was awarded custody of the children. This case does not implicate § 39 of the Adoption Code.

B

We are deeply troubled by any implication from Bradley that simply terminating parental rights of one parent necessarily terminates that parent's obligation to support the child. We conclude that Bradley cannot be read to support such a conclusion. When the portion of this Court's opinion in Bradley, supra at 159, 503 N.W.2d 714, relating to the termination of parental rights is read as a whole, it is clear that the Court limited the application of its holding to the circumstances explicitly set forth in the Adoption Code. Any broader reading of Bradley erroneously and impermissibly extends its holding.

Here, in contrast to Bradley, the lower court record clearly indicates that defendant terminated his parental rights because he believed that he would no longer be obliged to make child support payments. A child has an inherent right to parental support....

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18 cases
  • Crego v. Coleman
    • United States
    • Michigan Supreme Court
    • July 31, 2000
    ...father could not avoid his obligation to support his child by voluntarily terminating his parental rights. Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328 (1995). It recognized that "[a] child has an inherent right to parental support" and "parents may not bargain away a child's right to ......
  • Reardon v. Midland Cmty. Sch.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • September 2, 2011
    ...to support his or her children remains with the parent even if parental rights have been terminated. See Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328, 329–30 (1995). Whether these Michigan laws are well founded or not, they played a role in the events of this case. Second, attention mu......
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    • United States
    • Alabama Court of Civil Appeals
    • August 15, 2008
    ...obligation to pay child support does not end when his or her parental rights are terminated. See, e.g., Evink v. Evink, 214 Mich.App. 172, 176, 542 N.W.2d 328, 331 (1995); State of Rhode Island v. Fritz, 801 A.2d 679, 685 (R.I.2002); and Adoption of Marlene, 443 Mass. 494, 822 N.E.2d 714 (2......
  • Sturak v. Ozomaro
    • United States
    • Court of Appeal of Michigan — District of US
    • February 23, 2000
    ...illegitimate child's right to support is primarily at issue. Crego III, supra at 294, n. 5, 591 N.W.2d 277. In Evink v. Evink, 214 Mich.App. 172, 175-176, 542 N.W.2d 328 (1995), we held [a] child has an inherent right to parental support.... As this Court has stated, the purpose of child su......
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