Malone v. Malone

• Decision Date: 03 June 2008
• Docket Number: Docket No. 272327.
• Citation: 761 N.W.2d 102,279 Mich. App. 280
• Parties: MALONE v. MALONE.
• Court: Court of Appeal of Michigan — District of US

761 N.W.2d 102

279 Mich. App. 280

MALONE v. MALONE.

Docket No. 272327.

Court of Appeals of Michigan.

Submitted January 8, 2008, at Detroit.

Decided June 3, 2008, at 9:05 a.m.

Richard Smutek, Warren, for the plaintiff.

Mary Beth Leija and Scott Bassett for the defendant.

Before: TALBOT, P.J., and ZAHRA and METER, JJ.

ZAHRA, J.

Plaintiff appeals by leave granted the circuit court's order vacating defendant's outstanding child-support arrearage of $5,647.27. This case requires us to determine whether MCR 2.612, the relief-from-judgment court rule, may be used to set aside accrued child support. We hold that under the facts presented in this case, MCR 2.612 cannot be so used. MCL 552.603 expressly provides that a child-support order is not subject to retroactive modification except with respect to the period during which there is a properly filed and served petition for support modification. For reasons more fully stated in this opinion, we reverse the order of the trial court and remand this case for further proceedings.

I. BASIC FACTS

The parties were divorced on October 7, 1988, and, in a judgment entered by the Wayne Circuit Court, plaintiff was awarded custody of their only child. Defendant was initially ordered to pay $40 a week in child support. In 1994, on plaintiff's motion, the circuit court increased child support to $80 a week. Defendant was also required to pay an additional amount toward a child-support arrearage he had accrued.¹ The parties continued to live together from 1988 until they separated in 1992. The child lived with plaintiff between 1992 and 2004.

Defendant alleged that plaintiff and the child began experiencing serious problems in 2004, and domestic violence charges were filed against the child in the family division of the Macomb Circuit Court after an alleged altercation with plaintiff. As a result of those charges, the child lived with defendant in February and March 2004, but then returned to live with plaintiff from April 2004 to July 15, 2004. Defendant alleged that the child was released to his care and custody by the Macomb Circuit Court on July 15, 2004, and that the child has resided with him since that date.

Defendant alleged that financial hardship prevented him from filing in the Wayne Circuit Court a motion to change custody or modify support after the child was placed with him. Defendant nonetheless continued to pay support. Nearly two years passed before defendant filed in the Wayne Circuit Court his March 7, 2006, motion to modify child support. Defendant requested that the trial court modify his support obligation pending further investigation and also adjust the support arrearages dating back to February 2004, to give him credit for child-support payments he alleged that plaintiff fraudulently received on behalf of the child when the child was no longer in the custody of plaintiff. Along with his motion to modify support, defendant also filed a motion seeking a formal to award of custody of the child to him.

At the hearing on defendant's motion, plaintiff agreed that the child was living with defendant. The central issue concerned whether the support obligation and arrearage could be retroactively adjusted. The parties also disagreed on the dates the child began living with defendant. At the conclusion of the hearing, the friend of the court (FOC) referee in the Wayne Circuit Court indicated on the record that she believed that the Macomb Circuit Court "erred in not stopping his [defendant's] child support and ordering mom to pay." "So, I think under those circumstances the court can rectify it." "It was the court's error."

At a second hearing the referee again stated on the record that the Macomb Circuit Court should have ended defendant's child-support obligation once the child was placed with defendant. The referee believed that support should have been abated 100 percent at that time and that the court should be able to correct its own mistakes. The hearing then focused on the dates the child began living with defendant. Later, the referee made the following recommendation:

That the arrears owed to Erika Malone be set at zero as of 6-13-06. The FOC records show $5647.27 owed to Ms. Malone. This referee calculates that Dad had the child for a period of approximately 19 months due to juvenile court involvement. He was still charged support, assessed surcharges and he paid support.

Plaintiff appealed the referee's recommendation in the Wayne Circuit Court. Plaintiff argued that the recommendation "retroactively and ambiguously calculated 100% abatement of child support based on random dates of the child living with both parents and contrary to MCL 552.603 and the appellate case of Waple vs. Waple, 179 Mich.App. 673, 446 N.W.2d 536, [sic] (1989)." The circuit court entertained plaintiff's objections to the referee's recommendation at a hearing, but ultimately agreed with the FOC referee. The circuit court entered an order adopting the FOC referee's recommendation and stated "that arrears owed to Plaintiff be set at zero as of 6-13-06. Income withholding order against Defendant shall be terminated. Referee Recommendation of 6-13-06 shall be adopted. Relief granted per MCR 2.612 by Court."

II. RETROACTIVE MODIFICATION OF CHILD SUPPORT

A. STANDARD OF REVIEW

In Fisher v. Fisher, 276 Mich.App. 424, 427, 741 N.W.2d 68 (2007), this Court summarized the applicable standard of review as follows:

Generally, this Court reviews child support orders and orders modifying support for an abuse of discretion. Peterson v. Peterson, 272 Mich.App. 511, 515, 727 N.W.2d 393 (2006). Whether the trial court properly acted within the child support guidelines is a question of law that this Court reviews de novo. Id. at 516. This Court also reviews questions of statutory construction de novo. Perry v. Golling Chrysler Plymouth Jeep, Inc., 477 Mich. 62, 65, 729 N.W.2d 500 (2007).

B. ANALYSIS

At issue is MCL 552.603, which provides in relevant part:

(1) A support order issued by a court of this state shall be enforced as provided in this act.

(2) Except as otherwise provided in this section, a support order that is part of a judgment or is an order in a domestic relations matter is a judgment on and after the date the support amount is due as prescribed in [MCL 552.605c], with the full force, effect, and attributes of a judgment of this state, and is not, on and after the date it is due, subject to retroactive modification. Retroactive modification of a support payment due under a support order is permissible with respect to a period during which there is pending a petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support.

The interpretation of the above statute is at the heart of this case.

When interpreting a statute, our primary obligation is to ascertain and effectuate the intent of the Legislature. To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language. When the language of a statute is unambiguous, the Legislature's intent is clear and judicial construction is neither necessary nor permitted. [Lash v. Traverse City, 479 Mich. 180, 187, 735 N.W.2d 628 (2007) (citations omitted).]

In Waple v. Waple, 179 Mich.App. 673, 675-677, 446 N.W.2d 536 (1989), this Court held that an earlier version of MCL 552.603, which substantially corresponds to the current version, barred the defendant from abating a child-support arrearage.² This Court held that, "[b]y the unequivocal terms of this statute, retroactive modification of support for periods prior to the September 23, 1987, date of notice of the petition is prohibited." Waple, 179 Mich. App. at 676, 446 N.W.2d 536. This Court also noted:

The end result—that defendant is precluded by statute from seeking a reduction in support arrearages for periods when the intended beneficiary of the support resided with him—seems particularly unfair when the law prior to the enactment of MCL 552.603 ... is considered. Previously, past-due support installments were subject to modification due to a change in circumstances. Talbot v. Talbot, 99 Mich.App. 247, 252, 297 N.W.2d 896 (1980), lv. den. sub. nom. Talbot v. Burns, 410 Mich. 903 (1981). Cf. Dresser v. Dresser, 130 Mich.App. 130, 136-137, 342 N.W.2d 545 (1983). A change in physical custody is a change in circumstances. See Rohloff v. Rohloff, 161 Mich.App. 766, 769, 411 N.W.2d 484 (1987), lv. den. 429 Mich. 869, 413 N.W.2d 678 (1987). [Waple, 179 Mich. App. at 676-677, 446 N.W.2d 536.]

This Court also indicated that equitable circumstances should not be considered because the Legislature intended, "consistent[ly] with overriding federal directives enforceable by a loss of funding, to remove entirely the discretion of the circuit court to consider a change in circumstances." Waple, 179 Mich.App. at 677, 446 N.W.2d 536. In subsequent published cases, this Court has followed the rule from Waple and refused to allow any retroactive modification of support orders, except as provided in MCL 552.603. See Fisher, 276 Mich.App. at 428-431, 741 N.W.2d 68; Adams v. Linderman, 244 Mich.App. 178, 185-186, 624 N.W.2d 776 (2000); Harvey v. Harvey, 237 Mich.App. 432, 437-439, 603 N.W.2d 302 (1999). Here, however, the Wayne Circuit Court did not follow Waple, but held that it could grant defendant relief and retroactively modify the support arrearage pursuant to MCR 2.612. The circuit court specifically granted relief under MCR 2.612(C), which provides, in relevant part:

(C) Grounds for Relief From Judgment.

(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:

(a) Mistake, inadvertence, surprise, or excusable neglect.

(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR...