San Joaquin County, Cal. v. Dewey, Docket No. 48294

• Decision Date: 08 April 1981
• Docket Number: Docket No. 48294
• Citation: 306 N.W.2d 418,105 Mich.App. 122
• Parties: COUNTY OF SAN JOAQUIN, CALIFORNIA, Petitioner-Appellant, v. Duane David DEWEY, Respondent-Appellee. 105 Mich.App. 122, 306 N.W.2d 418
• Court: Court of Appeal of Michigan — District of US

Page 418

306 N.W.2d 418

COUNTY OF SAN JOAQUIN, CALIFORNIA, Petitioner-Appellant, v. Duane David DEWEY, Respondent-Appellee.

Docket No. 48294.

105 Mich.App. 122, 306 N.W.2d 418

Court of Appeals of Michigan.

April 8, 1981.

Released for Publication June 16, 1981.

[105 MICHAPP 124] Thomas N. Brunner, Manistee, for petitioner-appellant.

Donald G. Jennings, Manistee, for respondent-appellee.

Before DANHOF, C. J., and KELLY and SULLIVAN, ^* JJ.

KELLY, Judge.

Plaintiff, County of San Joaquin, California, appeals of right a decision of the lower court granting defendant's motion for accelerated judgment pursuant to GCR 1963, 116.1 and dismissing plaintiff's petition for reimbursement of support funds previously provided under the ADC program to defendant's former wife. Plaintiff raises two issues.

[105 MICHAPP 125] Defendant and Sharon Dewey were married in 1974 in the State of California. The two then returned to Michigan where, on September 2, 1974, their son David was born. In June of 1975, Sharon Dewey returned to California, taking the child with her. Defendant remained in Michigan and, on September 27, 1976, obtained a default judgment of divorce, the pertinent sections of which deferred the questions of child custody, visitation and support until the filing of "an appropriate petition by either party." ¹

On June 6, 1978, the named plaintiff filed in the circuit court for Manistee County, Michigan, a Uniform Reciprocal Enforcement of Support Act (URESA) action, petitioning the court for an order directing defendant to provide child support for his son. In response to this petition, defendant filed a motion for accelerated judgment, which was granted on July 3, 1978. The lower court explained its rationale for the order as follows:

"The parties to this case, the Deweys, had a divorce [105 MICHAPP 126] action in this Court, and Mrs. Dewey, without getting a determination as to her fitness for child custody, rights (of) visitation or the question of support, left the jurisdiction and was validly served, and the Court presumes there is no doubt about that, and, in turn, did not appear for the divorce. So, the Court, and I think wisely, said that the question of support, custody and visitation shall be reserved and the Court shall make decisions on those items upon proper petition and rehearing. The County of San Joaquin now, assuming Mrs. Dewey's rights, comes back and asks to litigate only the question of support. And, if I allow support in this case, I am going to frustrate Mr. Dewey's right to visitation and to the possibility of custody of the child. And, I don't think that a Court in Equity should do that. So, Mr. Jennings, (defense counsel) I think that the wife in this case, and the County of San Joaquin, if they want support in this case, must come back and file a petition in the original divorce action in this case, and not only litigate the question of support, but also the question of the rights, abilities and right to have custody and visitation, and the relief of the County of San Joaquin will have to be maintained in an action brought in the divorce action, not in the URESA action, and I agree with you and an order may be so prepared."

The instant petition was filed in 1979 and was identical in all pertinent respects to the 1978 action. In response to an order to show cause why a support order should not enter, defendant again filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(4) and (5), claiming that the issue had been resolved in the prior proceeding. Finding that plaintiff's 1979 petition was a collateral attack on a previously decided issue, the lower court granted defendant's motion.

Plaintiff first alleges error in the trial court's 1978 decision, which effectively limited its right to an order of child support by requiring the support issue to be determined in conjunction with custody and visitation. We agree.

[105 MICHAPP 127] In general, URESA provides a means by which out-of-state dependants or their surrogates may seek to obtain and/or enforce court ordered child support. See Brown v. Turnbloom, 89 Mich.App. 162, 166-167, 280 N.W.2d 473 (1979). The possible extent of such duties is defined in M.C.L. § 780.158; M.S.A. § 25.225(8):

"Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown."

Additionally, a sister state which has assumed part of the respondent's child support obligation may seek reimbursement of funds so provided:

"Whenever the state or a political subdivision thereof has furnished or is furnishing support to an obligee, it shall have the same right to invoke the provisions hereof as the obligee to whom the support was furnished for the purpose of securing reimbursement of expenditures so made and of obtaining continuing support." M.C.L. § 780.159; M.S.A. § 25.225(9).

Once a court in a responding state finds a "duty of support", it has discretion to order the respondent to make such payments. M.C.L. § 780.164; M.S.A. § 25.225(14). This necessary duty has been statutorily defined in M.C.L. § 780.153(6); M.S.A. § 25.225(3)(6), which provides:

" 'Duty of support' includes any duty of support imposed or imposable by law, or by any court order, [105 MICHAPP 128] decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise."

By statute, a trial court, having obtained jurisdiction over both parties to a divorce, may direct an order of custody and support governing children of the marriage. M.C.L. § 552.17a; M.S.A. § 25.97(1). Under M.C.L. § 552.17; M.S.A. § 25.97, the court also retains continuing authority to modify provisions of a previously issued judgment of divorce. ² The statute provides:

"The court may, from time to time afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents, and the benefit of the children shall require."

Our review of the record discloses that the trial court acquired personal jurisdiction over defendant and his former wife at the time of the 1976 divorce proceeding. Thus, under the statutory authority noted, the court below had authority at all times to modify support, custody and visitation, pursuant to its 1976 judgment of divorce. Having acquired jurisdiction, a duty of support was at all relevant times "imposable" on the defendant, despite the language of the judgment requiring a petition by [105 MICHAPP 129] either party to the divorce. As noted in State of Maine v. Horton, 99 Mich.App. 90, 297 N.W.2d 622 (1980), "as the trial court had the power to impose a duty of support upon defendant, defendant had a 'duty to support' within the meaning of the act".

This existence of duty does not, however, require the responding state court to establish an amount and mandate a defendant to make payments to satisfy the duty of support so found. M.C.L. § 780.164; M.S.A. § 25.225(14) entrusts this decision to the trial court's discretion. In the present case, the lower court refused to address the support question and concluded that plaintiff's petition for remedy should be sought in conjunction with the issues left open by the divorce judgment. The County of San Joaquin was treated like a derelict spouse.

In Brown v. Turnbloom, supra, 89 Mich.App. 168, 280 N.W.2d 473 the Court interpreted URESA as having a unilateral purpose:

"URESA makes no mention of visitation matters. Its scope is expressly limited to support. The act contemplates ex parte proceedings where only duties of support are adjudicated. It does not provide for adversary proceedings where other matters are to be decided. There is no mechanism for requiring the custodial parent to appear to answer allegations of the noncustodial parent as to the denial of visitation privileges. Adjudication of visitation matters is, therefore, best left to the state of divorce." (Emphasis added.)

See also Robinson v. Harris, 87 Mich.App. 69, 273 N.W.2d 108 (1978), and State of Maine v. Horton, supra, 99 Mich.App. 93, 297 N.W.2d 622 (...