In re SMNE, Docket No. 251091.

• Decision Date: 22 November 2004
• Docket Number: Docket No. 251091.
• Citation: 689 N.W.2d 235,264 Mich. App. 49
• Parties: In the matter of S.M.N.E., Minor. Scott Richard Eickhoff and Maria E. Eickhoff, Petitioners-Appellees, v. Laura Ann Eickhoff, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 235

264 Mich. App. 49

In the matter of S.M.N.E., Minor.

Scott Richard Eickhoff and Maria E. Eickhoff, Petitioners-Appellees, v. Laura Ann Eickhoff, Respondent-Appellant.

Docket No. 251091.

Court of Appeals of Michigan.

Submitted March 10, 2004, at Lansing.

Decided October 5, 2004, at 9:15 a.m.

Released for Publication November 22, 2004.

Grubbs & Grubbs (by Debra Mehl Grubbs), Three Rivers, for Scott R. and Maria E. Eickhoff.

Thomas J. Robertson, guardian ad litem, Sturgis, for S.M.N.E.

Bird, Svendsen, Brothers, Scheske & Pattison, P.C. (by Robert K. Pattison), Sturgis, for Laura A. Eickhoff.

Before: JANSEN, P.J., and MARKEY and GAGE, JJ.

PER CURIAM.

Respondent appeals by right from the trial court's order terminating her parental rights to the minor child under § 51(6) of the Michigan Adoption Code, M.C.L. § 710.51(6), and raises two issues on appeal. We conclude that where the issue of child support was reserved in the judgment of divorce and respondent was not ordered to pay any child support, the trial court properly determined that the "support order" provision in § 51(6)(a) did not apply; consequently, the court properly inquired into respondent's ability to pay. In re Newton, 238 Mich.App. 486, 491-493, 606 N.W.2d 34 (1999).

We also affirm the trial court's findings regarding § 51(6)(b): "The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition." Although respondent argued that petitioner-father prevented her from having regular contact with the child, she had a legal right to visit with the child under the terms of the divorce judgment. To the extent respondent felt that petitioner was unjustly and improperly denying her visitation rights, she should have sought assistance from the Friend of the Court or the divorce court, as she had in the past. For this reason, this case is distinguishable from In re ALZ, 247 Mich.App. 264, 273-274, 636 N.W.2d 284 (2001), and the trial court did not err in finding that respondent was not prevented from having regular and substantial contact with the child. Accordingly, we affirm the trial court's findings that petitioners met their burden of proof under § 51(6)(b).

The issue involving § 51(6)(a) requires more complex analysis. We initially note that the purpose of M.C.L. § 710.51(6) is to "foster stepparent adoptions in families where the natural parent had regularly and substantially failed to support or communicate and visit with the child," yet refuses or is unavailable to consent to the adoption. In re Colon, 144 Mich.App. 805, 810, 377 N.W.2d 321 (1985) (emphasis added). The provision in the parties' divorce judgment providing that respondent's obligation to pay child support sets forth no amount and, in fact, states that the issue of support "shall be reserved." The order was entered after the trial court weighed respondent's ability to pay, and petitioner retained the right to request the trial court to review respondent's ability to pay. Therefore, when determining whether to terminate respondent's parental rights, it was proper for the trial court to inquire into her ability to pay support. In re Newton, supra.

M.C.L. § 710.51 provides in relevant part:

(6) If the parents of a child are divorced ... and if the parent having legal custody of the child subsequently marries and that parent's spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:

(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.

This Court has held that a trial court considering a petition for adoption under § 51(6) may not consider both the parent's ability to pay and whether the party complied with a support order. Newton, supra.

In the divorce judgment at issue here, the court stated in regards to child support:

IT IS FURTHER ORDERED that Defendant's obligation to pay support shall be reserved as defendant is not presently employed and receives no income.... [Emphasis added.]

The divorce decree also provides that the

payor of support shall give the Office of the Friend of the Court the name and address of his/her employer. The payor shall immediately give the office of the Friend of the Court notice of the name and address of any subsequent employer. The payor's current employer is: DEFENDANT IS NOT EMPLOYED. [Emphasis added.]

Our task now is to ascertain whether the reservation of child support in the judgment of divorce constituted a support order or judicial determination such that it was improper for the trial court to inquire into respondent's ability to pay child support for the purposes of M.C.L. § 710.51(6)(a).

In In re Colon, supra at 809-810, 377 N.W.2d 321, this Court noted that subsection 6(a) is somewhat ambiguous but, after careful statutory analysis, explained that this subsection addresses two separate situations: (1) where a parent, when able to do so, fails or neglects to provide regular and substantial support, and (2) where a support order has been issued and the parent fails to substantially comply with it. In Colon, the noncustodial parent was subject to a child support order and the issue was whether the custodial parent was required to prove that the noncustodial parent had the ability to pay support. In finding no such requirement, this Court reasoned that an "ability to pay is already factored into a child support order, and it would be redundant to require a petitioner under the Adoption Code to prove the natural parent's ability to pay as well as that parent's noncompliance with a support order." Id. at 812, 377 N.W.2d 321. Although the holding in Colon does not directly address the issue in this case, it does provide guidance. Clearly, the second clause in subsection 6(a) asks only if there was a failure of support, because an existing support order already answers the question of ability to pay. A court in deciding a termination and adoption case must follow the original determination regarding the respondent's ability to support the child in the support order as a matter already settled by a judgment. In situations where the support order no longer accurately reflects such ability to pay, either parent may petition the court for modification of the order. M.C.L. § 552.17; M.C.L. § 722.720; Kosch v. Kosch, 233 Mich.App. 346, 350, 592 N.W.2d 434 (1999). To require a court to inquire into the ability to pay in such cases would simply be a repetitious and inefficient use of judicial resources and would essentially allow a collateral attack of the support order. Newton, supra at 492, 606 N.W.2d 34. Consequently, only in cases where no support order exists is an inquiry into the ability to pay necessary or allowed. Id. Any other interpretation would allow a party to circumvent the official order of the court. Id. Such a reading of the statute is also consistent with its purpose as pronounced in Colon.

Thus, in In re Newton, supra at 488-489, 493, 606 N.W.2d 34, this Court held that the trial court did not err when it dismissed a petition for adoption where the respondent was paying under a modified support order, even though the payments on an arrearage...