Ovaitt v. Ovaitt

• Decision Date: 27 November 1972
• Docket Number: No. 2,Docket No. 11087,2
• Citation: 204 N.W.2d 753,43 Mich.App. 628
• Parties: Myron R. OVAITT, Plaintiff and Cross-Defendant-Appellee, v. Elaine J. OVAITT, Defendant and Cross-Plaintiff-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 753

204 N.W.2d 753

43 Mich.App. 628

Myron R. OVAITT, Plaintiff and Cross-Defendant-Appellee, v. Elaine J. OVAITT, Defendant and Cross-Plaintiff-Appellant.

Docket No. 11087.

Court of Appeals of Michigan, Division No. 2.

Nov. 27, 1972.

Released for Publication March 9, 1973.

John M. Wright, Flint, for appellant.

Richard J. Behm, Flint, for appellee.

Before McGREGOR, P.J., and LEVIN and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

We are faced here with a novel question which apparently has never been decided on the precise point in Michigan. Can the Circuit Court enforce against the husband, by contempt proceedings, provisions in a Judgment of Divorce which require the husband to provide support (including college expenses) for his children after said children reach age twenty-one, where the challenged provision was incorporated verbatim into the judgment from a written stipulation and property settlement agreement voluntarily executed by the parties prior to their divorce?

The defendant and cross plaintiff will hereafter be referred to as the defendant. The plaintiff and cross defendant will hereafter be referred to as the plaintiff.

A Judgment of Divorce was awarded to the defendant. The judgment which was entered on August 31, 1965, incorporated verbatim the terms of a written stipulation and property agreement entered into by the parties. The pertinent provision of the judgment which constitutes the gravamen of this appeal of right from an order of January 7, 1971, amending the Judgment of Divorce, provided as follows:

'B. IT IS FURTHER ORDERED AND ADJUDGED that when the Cross-Defendant's obligation to support Wendy J. Ovaitt and Myron M. Ovaitt terminates as described in sub-paragraph A hereof, the said Cross-Defendant shall pay to the Cross-Plaintiff, through the office of the Friend of the Court for Genesee County, Michigan, for the support and maintenance of Wendy J. Ovaitt and Myron M. Ovaitt while attending college as follows: The sum of One Hundred ($100.00) Dollars for each child, on the first day of each term or semester of college, and in addition thereto, the sum of One Hundred ($100.00) Dollars for each child, on the first day of each month that said child is in attendance at an accredited college or university; provided, however, that this provision shall limit the Cross-Defendant's obligation for support to a total of three (3) terms per year, if said college is on a term basis, or two (2) semesters per year, if said college is on a semester basis. Said support payments as heretofore described shall continue so as to provide four (4) years of college for each child. Thereafter, the Cross-Defendant shall be relieved of all obligations to support said children. Said support payments shall include the defrayment of ordinary health expenses incurred in behalf of Wendy J. Ovaitt and Myron M. Ovaitt.'

The parties agree that at the time the stipulation was entered, plaintiff knew that the children would be more than twenty-one years of age by the time they completed four academic years of college.

Wendy became twenty-one years old on February 23, 1970, and plaintiff refused to pay her educational expenses subsequent to such birthday. On May 12, 1970, plaintiff filed a motion to terminate his support as to Wendy J. Ovaitt. Defendant responded with a motion to require plaintiff to comply with the above-cited provision of the divorce judgment relating to the payment of Wendy's college expenses after her twenty-first birthday.

No testimony was taken with respect to either motion as the parties submitted the issue to the court on stipulated facts. The order amended the Judgment of Divorce by terminating plaintiff's obligation to pay college expenses incurred by his children after the age of twenty-one years.

The statutes primarily relevant to the case at bar provide:

'Sec. 17a. The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age. However, on application for modification of a judgment or order where applicant is in contempt, for cause shown, the court may waive the contempt and proceed to a hearing without prejudice to applicant's rights and render a determination on the merits.' M.C.L.A. § 552.17a; M.S.A. § 25.97(1).

'Sec. 151. In any suit for divorce or separate maintenance where an order or decree for payment of temporary permanent alimony, or of support and maintenance for minor children, has been made, and where the party, plaintiff or defendant, has appeared in person or by attorney or has been personally served with process within the jurisdiction of the court making such order or decree, such court may punish, by fine and imprisonment or both, any neglect or violation of such order upon petition of the party whose rights thereunder may have been impaired, impeded or prejudiced by such neglect or violation.' M.C.L.A. § 552.151; M.S.A. § 25.151.

Michigan case law interpreting the first statute quoted above has concluded that a court may validly order reasonable college expenses to be paid after a minor child reaches eighteen, but not after he reaches twenty-one. Johnson v. Johnson, 346 Mich. 418, 78 N.W.2d 516 (1956); Davis v. Davis, 8 Mich.App. 104, 109, 153 N.W.2d 879, 881 (1967). As stated by this Court in the latter case:

'An amendment requiring the father to pay all or part of an unanticipated health expense, to continue support and to pay reasonable college expenses after the minor child reaches 18 years of age but not beyond the child's majority, is within the authorized discretion of a court.'

The parties are in accord that in the absence of a specific agreement between husband and wife providing for support payments beyond a child's majority, a court is without authority to order post- majority support payments Sua sponte, and any order or decree purporting to do so is invalid. In fact, defendant's brief states:

'It is conceded, absent a written stipulation incorporated in the Judgment of Divorce, Johnson would control. In the instant case, however, the basis of the judgment requiring the husband to provide a college education for his child is his voluntary written promise.'

The question, therefore, is not whether a court has Sua sponte power to impose a duty of support for children older than twenty-one, but rather whether the agreement between the parties providing for post-majority support, which is incorporated into the Divorce Judgment, serves to provide the court with enforcement power which it would not have in the absence of such agreement. This is the specific point upon which the parties in the instant case disagree and is also the question which has not been specifically answered in prior Michigan decisions.

In Maslen v. Anderson, 163 Mich. 477, 481--484, 128 N.W. 723, 725--726 (1910), at the suggestion of the defendant, a provision was incorporated in the decree whereby the defendant was required to pay a specific sum to each of his children at the age oe majority. The Supreme Court declared the provision invalid and stated:

'(W)e are of (the) opinion (that the provision) cannot be sustained, and must be held to be invalid, for the reason that the court had no jurisdiction to make such order, or create such lien, even by the oral consent of said (defendant).

'It is a recognized doctrine that parties cannot confer jurisdiction over a subject-matter by their consent, upon courts from which the law has withheld it.

'So we are constrained to hold that, notwithstanding the consent of (defendant), those portions of the decree above pointed out were void and of no effect for want jurisdiction in the court to make the same.'

In Rex v. Rex, 331 Mich. 399, 409, 49 N.W.2d 348, 353 (1951), the divorce decree required the plaintiff to form trusts for the benefit of his three sons, two of whom were then over twenty-one years of age, and one of whom was approaching majority. The Michigan Supreme Court invalidated these provisions stating:

'All of said provisions in the decree requiring the setting up of trusts for appellant's property are illegal and void and must be deleted. The jurisdiction of the court in divorce cases is circumscribed by statute and there is no such authority vested in the court in granting a divorce as has been thus attempted.

'Jurisdiction in divorce proceedings is strictly statutory. The court cannot decree payment direct to children upon their reaching majority, or even during minority, or create a lien for such payment. We have held that provisions in a divorce decree, even by consent, providing payment of a sum to the wife's mother and sums to the children at majority, are void.'

Defendant places considerable reliance on Newton v. Battle Creek Bank, 324 Mich. 344, 37 N.W.2d 130 (1949). However, the trial Court distinguished this case from Newton on the ground that in Newton a trust agreement was involved and the terms of same were fully executed before the suit began except for turning over of the trust corpus to the beneficiary when he reached age thirty. The Newton court treated the provision there challenged as a property settlement agreement. When incorporated in a Judgment of Divorce, property settlement agreements cannot be set aside except for fraud, duress, mutual mistake, or comparable reasons. Ferrera v. Ferrera, 16 Mich.App. 661, 168 N.W.2d 475 (1969). Support agreements such as the one involved in this case, however, are subject to court modification.

In the absence of Michigan decisions,...