Smith v. Smith, Docket No. 90580

• Decision Date: 24 November 1987
• Docket Number: Docket No. 90580
• Citation: 414 N.W.2d 906,163 Mich.App. 423
• Court: Court of Appeal of Michigan — District of US
• Parties: Mary Carlen SMITH, Plaintiff-Appellant, v. Michael Clarke SMITH, Defendant-Appellee, and State Bar of Michigan Family Law Section, Amicus Curiae.

Page 906

414 N.W.2d 906

163 Mich.App. 423

Mary Carlen SMITH, Plaintiff-Appellant, v. Michael Clarke SMITH, Defendant-Appellee and State Bar of Michigan Family Law Section, Amicus Curiae.

Docket No. 90580.

Court of Appeals of Michigan.

Submitted Dec. 11, 1986.

Decided Oct. 5, 1987.

Released for Publication Nov. 24, 1987.

Kluczynski, Girtz & Vogelzang, Grand Rapids, by Richard Radke, Jr., for plaintiff.

Whitker, Benz, Shaner & Olsen by V. Carl Shaner, Ann Arbor, for defendant.

Scott Bassett, Ann Arbor, amicus curiae for Family Law Section of State Bar of Mich.

Before MacKENZIE, P.J., and ALLEN and SHAMO, ^* JJ.

SHAMO, Judge.

Plaintiff, the custodial parent, appeals from an order modifying the child support provisions of a judgment of divorce. The child, Aimee Marie Smith, was sixteen years old at the date of the entry of the modification order. The court found that Aimee was acutely handicapped due to genetic abnormalities, functioning with the mental capacity of a six-year-old. Plaintiff's sole contention on appeal is that the court erred by deciding that it lacked jurisdiction to extend defendant's child support obligations beyond Aimee's eighteenth birthday. We agree. Accordingly, this case is reversed in part and remanded so that the circuit court may consider whether a modification order extending child support obligations beyond the age of majority is appropriate.

M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1) defines the jurisdiction of the circuit court regarding the awarding of child support:

"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." (Emphasis added.)

The Age of Majority Act provides that the age of majority is eighteen:

"Notwithstanding any other provision of law to the contrary, a person who is 18 years of age but less than 21 years of age when this act takes effect, and a person who attains 18 years of age thereafter, is deemed to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age." M.C.L. Sec. 722.52; M.S.A. Sec. 25.244(52).

This enactment reduced the age of majority from twenty-one to eighteen. See M.C.L. Sec. 722.53; M.S.A. Sec. 25.244(53).

The foregoing have been construed to negate an assertion of authority by the circuit court to order that support continue beyond the child's eighteenth birthday. McNames v. McNames, 93 Mich.App. 477, 286 N.W.2d 892 (1979); Arndt v. Kasem, 135 Mich.App. 252, 258-259, 353 N.W.2d 497 (1984); Boyd v. Boyd, 116 Mich.App. 774, 786, 323 N.W.2d 553 (1982); Garrett v. Garrett, 108 Mich.App. 258, 310 N.W.2d 355 (1981); Sumerix v. Sumerix, 106 Mich.App. 7, 307 N.W.2d 727 (1981). Narrow exceptions exist when the support is paid pursuant to a voluntary agreement of the parties, Wagner v. Wagner, 105 Mich.App. 388, 306 N.W.2d 523 (1981), when the original judgment includes a reservation of future support, McNames, supra, 93 Mich.App. at 481, 286 N.W.2d 892, or when post-majority support was requested prior to the effective date of the Age of Majority Act, Price v. Price, 395 Mich. 6, 232 N.W.2d 630 (1975). None of these exceptions apply to the instant case.

However, M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1) authorized the court "in case of exceptional circumstances [to] require payment of such allowance for any child after he attains that age [i.e., 18 years]." The circuit court in this case erroneously construed previous decisions of this Court to deny jurisdiction to impose post-majority child support even when the circumstances of the parties are exceptional. We hold that the award of post-majority support is within the jurisdiction of the court when a showing of exceptional circumstances has been made. ¹ A contrary construction would render the "exceptional circumstances" clause mere surplusage. We are unwilling to attribute this intent to the Legislature.

In Johnson v. Johnson, 346 Mich. 418, 78 N.W.2d 216 (1956), the Supreme Court decided that an award of support was properly granted for the purpose of enabling a child to attend college after she attained the age of eighteen. At that time, M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1) was worded in a nearly identical manner as its present form, requiring support until the child's attainment of age eighteen, but then permitting additional support upon a showing of exceptional circumstances. The Court in Johnson held that the award was proper pursuant to the exceptional circumstances clause. However, since the age of majority at the time of the Johnson decision was twenty-one years, the Court held that exceptional circumstances would not justify any support once the child reached her twenty-first birthday. Under the present statutory framework, the eighteen-year age limit of the support statute and the age of majority coincide. Thus, if the Johnson holding is applied to terminate support obligations at the time of the child's attainment of the age of majority, there would never be a time period when the exceptional circumstances clause would compel an award of support. Unless we attribute to the Legislature an intent to impliedly repeal the exceptional circumstances clause, we must assume that this provision, read in conjunction with the Age of Majority Act, contemplates the extension of support beyond the age of majority. A reading of two statutes that results in an implied repeal is not favored. Ficano v. Lucas, 133 Mich. 268, 281, 351 N.W.2d 198 (1983). It is preferable to construe two statutes in a manner that gives meaning and effect to each word and phrase. Michigan Harness Horsemen's Ass'n v. Racing Comm'r, 123 Mich.App. 388, 391, 333 N.W.2d 292 (1983). Our construction accomplishes this end. Since the Johnson rationale no longer holds under the present statutory framework, we also decline to hold that the child's twenty-first birthday cuts off her entitlement to support when exceptional circumstances are present.

We find further support for our conclusion in Price v. Price, supra, 395...