Parrish v. Parrish, Docket No. 70781

• Decision Date: 07 January 1985
• Docket Number: Docket No. 70781
• Citation: 138 Mich.App. 546,361 N.W.2d 366
• Parties: Arlene L. PARRISH, Plaintiff-Appellee, Cross-Appellant, v. Albert L. PARRISH, Defendant-Appellant, Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 366

361 N.W.2d 366

138 Mich.App. 546

Arlene L. PARRISH, Plaintiff-Appellee, Cross-Appellant, v. Albert L. PARRISH, Defendant-Appellant, Cross-Appellee.

Docket No. 70781.

Court of Appeals of Michigan.

Submitted April 11, 1984.

Decided Nov. 5, 1984.

Released for Publication Jan. 7, 1985.

Mary E. Bennett, Lansing, for plaintiff-appellee, cross-appellant.

George A. Sullivan, Mason, for defendant-appellant, cross-appellee.

Before BRONSON, P.J., and MacKENZIE and BANKS, ^* JJ.

BRONSON, Presiding Judge.

Plaintiff, Arlene Parrish, and defendant, Albert Parrish, were married on April 17, 1955. Four children were born of the marriage, none of whom were minors at the time that plaintiff filed her complaint for divorce. An order of divorce was entered on March 31, 1983, awarding plaintiff $25 per week alimony and allocating the marital assets between the parties. Plaintiff and defendant appeal as of right from that order.

Laurie Parrish, the parties' youngest child, suffers from cerebral palsy. She was 18 years of age at the time that this action was commenced and residing with plaintiff. Although the trial court did not consider the question of child support at trial, the court admitted testimony pertaining to expenses generated by the care and support of Laurie, over defendant's objections, and recognized Laurie's condition and the plaintiff's responsibility for her daughter in awarding alimony. The judgment of divorce ordered defendant to pay plaintiff $25 per week alimony "for so long as the parties' child, Laurie Ann Parrish, is alive and in the care, custody and control of the plaintiff, Arlene L. Parrish, and as long as plaintiff shall assume and pay for expenses of care and custody of said child".

Defendant argues that neither the child support nor alimony statutory provisions authorized the $25 per week award. Plaintiff contends that the trial court erred in not considering an award of child support. We hold that the circuit court, as a court of equity, was not precluded from taking into account plaintiff's assumption of responsibility for the support of her handicapped child in determining an alimony award.

Jurisdiction in divorce proceedings is purely statutory, and the jurisdiction of the court is not helped by any consideration of general equities. Winter v. Winter, 276 Mich. 665, 667, 268 N.W. 774 (1936); Merchant v. Merchant, 130 Mich.App. 566, [138 Mich.App. 550] 571, 343 N.W.2d 620 (1983); Ewald v. Ewald, 14 Mich.App. 665, 669, 166 N.W.2d 49 (1968). Once the court obtains jurisdiction, however, it may consider general principles of equity in determining an appropriate alimony award. McLain v. McLain, 108 Mich.App. 166, 172, 310 N.W.2d 316 (1981).

Jurisdiction over child support orders is provided in M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1):

"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."

Plaintiff contends that this clause evinces the legislative intent to authorize circuit courts to order support for children who, because of "exceptional circumstances", cannot be deemed capable of independence at the age of 18. Although plaintiff presents a compelling argument, previous decisions of the courts of this state preclude us from subscribing to plaintiff's construction of the child support statute.

In Rybinski v. Rybinski, 333 Mich. 592, 597, 53 N.W.2d 386 (1952), the Supreme Court held that under the statute providing for care, custody and maintenance of a minor child, as well as under principles of common law, the trial court could not order support for the child of parties to a divorce action after the child had reached her majority.

The Supreme Court considered the significance of the "exceptional circumstances" language in Johnson v. Johnson, 346 Mich. 418, 78 N.W.2d 216 (1956). The "exceptional circumstances" alleged were the child's qualifications and desire to attend college. The Court read the statute as allowing support beyond the age of 18 upon a proper showing of circumstances, but affirmed the rule that the court could not order support beyond the age of majority (21 years old at that time). In Ovaitt v. Ovaitt, 43 Mich.App. 628, 638, 204 N.W.2d 753 (1972), this Court held that the circuit court could continue an order for support beyond minority (21) where the children were minors at the time of the entry of such order or judgment.

The effect of the Age of Majority Act, M.C.L. Sec. 722.51 et seq.; M.S.A. Sec. 25.244(51) et seq. (lowering the age of majority to 18) on the statute's "exceptional circumstances" clause was examined by the Supreme Court in Price v. Price, 395 Mich. 6, 232 N.W.2d 630 (1975). The Court's ruling was based on the saving clause of the Age of Majority Act, M.C.L. Sec. 722.54; M.S.A. Sec. 25.244(54), but, in dicta, the Court noted:

"While our disposition in this case rests upon the applicability of the saving provision, we are also inclined to the view that even after the effective date of the Age of Majority Act a court may enter an order or amend an order to provide for the college education of a person for whom a support order had been entered before he or she was 18. The Age of Majority Act does not purport to deprive persons between the ages of 18 and 21 of any rights theretofore enjoyed by them, but instead grants to persons of 18 the rights and legal capacities formerly withheld until they were 21. Since a college education has long come within the purview of 'exceptional circumstances' recognized by the support statute, Johnson v. Johnson, 346 Mich 418, 426; 78 NW2d 216 (1956), it would appear that such an order ought to be entirely proper for the period between the ages of 18 and 21 years. Further, to interpret the two statutes otherwise would render nugatory the entire provision concerning 'exceptional circumstances' in the support statute." Price, supra, p. 11, n. 5, 232 N.W.2d 630.

Similarly, in Charlton v. Charlton, 397 Mich. 84, 243 N.W.2d 261 (1976), the applicability of the saving clause rendered it unnecessary for the Supreme Court to reach the issue of whether the circuit court could have ordered support under the "exceptional circumstances" clause to a child who was over 18 at the time of trial.

The Court of Appeals has had occasion to review the effect of the "exceptional circumstances" clause where the Age of Majority Act saving clause no longer governed. In those decisions, this Court consistently held that a child who had reached the age of 18 years was statutorily precluded from being the subject of a child support award unless there had existed a prior order of the court or a prior agreement between the parties to provide support beyond the child's eighteenth birthday. Boyd v. Boyd, 116 Mich.App. 774, 786, 323 N.W.2d 553 (1982); Garrett v. Garrett, 108 Mich.App. 258, 260-261, 310 N.W.2d 355 (1981); Sumerix v. Sumerix, 106 Mich.App. 7, 8-9, 307 N.W.2d 727 (1981); Wagner v. Wagner, 105 Mich.App. 388, 391-394, 306 N.W.2d 523 (1981); McNames v. McNames, 93 Mich.App. 477, 481, 286 N.W.2d 892 (1979).

We find ourselves constrained by the language of M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1) and the aforementioned decisions of our Courts to hold that the circuit court has no jurisdiction to order support to a child beyond the age of 18 unless the court previously obtained jurisdiction over the child while the child was a minor. Because at no time during the pendency of this action was Laurie Parrish under 18 years of age, the trial court had no jurisdiction to award child support for her under M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1).

Although the trial court refused to consider the question of child support for Laurie, the court discussed plaintiff's responsibility for Laurie's support when it ordered defendant to pay alimony to plaintiff. Unquestionably, the court had statutory authority to award alimony. M.C.L. Sec. 552.23; M.S.A. Sec. 25.103 provides in pertinent part:

"(1) Upon every divorce from the bond of matrimony and also upon every divorce from bed and board if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party and such children of the marriage as shall be committed to the care and custody of either party, the court may further award to either party such part of the real and personal estate of either party and such alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case."

In this case, the issue of alimony is not one of jurisdiction, but whether the court erred by considering plaintiff's assumed responsibility for her handicapped daughter's support in determining the alimony award.

This Court reviews an order of alimony de novo, but it "will not modify an alimony award unless it is convinced that, sitting in the position of the trial court, it would have reached a different result". Boyd, supra, 116 Mich.App. p. 786, 323 N.W.2d 553. In McLain v. McLain, supra, 108 Mich.App. pp. 171-172, 310 N.W.2d 316, this Court set forth a number of factors that our Courts have considered in determining...