Wasson v. Wasson, Docket No. 17054

• Decision Date: 07 March 1974
• Docket Number: Docket No. 17054,No. 2,2
• Citation: 52 Mich.App. 91,216 N.W.2d 594
• Parties: Isaac WASSON, Plaintiff-Appellee, v. Paul WASSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 594

216 N.W.2d 594

52 Mich.App. 91

Isaac WASSON, Plaintiff-Appellee, v. Paul WASSON, Defendant-Appellant.

Docket No. 17054.

Court of Appeals of Michigan, Division No. 2.

March 7, 1974.

Released for Publication April 10, 1974.

Terrence J. O'Hagan, Conlin, Kenney, Green, O'Hagan & Henry, Ann Arbor, for defendant-appellant.

Washtenaw County Friend of the Court, J. Michael Schroer, Ann Arbor, for plaintiff-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and CAMPBELL,* JJ.

CAMPBELL, Judge.

Plaintiff and defendant were married on September 8, 1947. Two children were born of that marriage; Edwina Wasson, born January 19, 1950, and Jennifer Wasson, born February 24, 1951. Plaintiff and defendant were divorced, and a decree of divorce ¹ was entered in the Washtenaw County Circuit Court on December 6, 1952. According to the decree of divorce, Mr. Wasson was ordered to pay $17.50 a week for the support of the minor children. Defendant was incarcerated in the State Prison of Southern Michigan from December of 1954 until February of 1957. On January 25, 1973, an order to show cause was issued by the Washtenaw County Circuit Court, directing defendant to show cause why he should not be held in contempt of court for failure to pay the accrued arrearage of $3,230.00 in child support.

Defendant's response to the above order was a motion for summary judgment on March 17, 1973. Defendant, relying upon GCR 1963, 117.2(1), said that plaintiff had 'failed to state a claim upon which relief can be granted'. The trial court denied defendant's motion for summary judgment on March 25, 1973. On May 22, 1973, the trial court entered a supplemental order, setting the arrearage amount at $3,230.00 less an amount credited to defendant for the time he spent in prison. Plaintiff, pursuant to the Washtenaw County Friend of the Court's petition, claimed that a net amount of $1,247.50, in arrearage was now due. See, generally, M.C.L.A. § 552.253; M.S.A. § 25.173 and GCR 1963, 727.4.

On January 19, 1971, Edwina reached the age of majority. On February 24, 1972, Jennifer did the same. Defendant has argued that the trial court committed reversible error when it decided that it had jurisdiction in a contempt proceeding to enforce an order to pay child support on unpaid arrearages which accrue before the children reach the age of majority, where the contempt action was commenced after the children reached that age.

This is a case of first impression in this state. According to M.C.L.A. § 600. 1701(5); M.S.A. § 27A.1701(5), the courts of this state may punish, for contempt of court:

'Parties to actions, attorneys, counselors, and all other persons for the non-payment of any sum of money which the court has ordered to be paid, in cases where by law execution cannot be awarded for the collection of the sum, or the disobedience of or refusal to comply with any order of the court for the payment of temporary or permanent alimony or support money or costs made in any action for divorce or separate maintenance, or any other disobedience to any lawful order, decree, or process of the court.'

A divorce court has jurisdiction to:

'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 (18 years) and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age.' M.C.L.A. § 552.17a; M.S.A. § 25.97(1).

A person may be punished for contempt of court if that person fails 'to pay money for the support and maintenance of minor children' after having been ordered to do so. M.C.L.A. § 552.201; M.S.A. § 25.161. Finally, the Friend of the Court has the power to initiate contempt proceedings 'to collect any and all delinquent payments due for * * * dependent minor children'. M.C.L.A. § 552.253; M.S.A. § 25.173. See also GCR 1963, 727.4. Defendant has argued that despite the above provisions, the circuit court lacked jurisdiction to enforce an order requiring the payment of child support by the use of the above contempt power in a contempt proceeding which was initiated subsequent to the date on which the children reached the age of majority.

There is a split of authority among the jurisdictions in this country on the above issue. Anno: Power of Divorce Court, After Child Attained Majority, To Enforce By Contempt Proceedings Payment of Arrears of Child Support, 32 A.L.R.3d 888. It has been noted that 7 jurisdictions, Indiana, Minnesota, Mississippi, Oklahoma, Washington, Wisconsin, and Florida, have held that the divorce court lacks jurisdiction in a contempt proceeding to enforce a previous order to pay child support on the unpaid arrearage which accrued before the child reached its majority age, where the contempt proceedings were initiated after the child reached majority age. 32 A.L.R.3d 888, 889. On the other hand, the states of Arkansas, Illinois, New York, Oregon, and Texas:

'have held that a divorce court does have jurisdiction in a contempt proceeding to enforce an order to pay child support on unpaid instalments accruing before the child reached its majority, where such proceedings were commenced after the child reached majority, reasoning that the jurisdiction of the court was a continuing one, and that the emancipation of the child should not serve to cancel the arrears.' 32 A.L.R.3d 888, 891.

In Michigan, our courts have exercised their jurisdiction to order a delinquent defendant to pay the amount of support owed to his minor child in a proceeding initiated after that child had reached the age of majority. Rybinski v. Rybinski, 333 Mich. 592, 597, 53 N.W.2d 386, 389 (1952).

In the case of McFarlane v. McFarlane, 298 Mich. 595, 598, 299 N.W. 728, 730 (1941), the Court said, 'If it is a decree for alimony, plaintiff's remedy should have been by contempt proceedings before the court where the decree was entered instead of by bringing suit to obtain the judgment. It lies within the jurisdiction of the court in chancery to modify or enforce its decrees for alimony.' In Pronesti v. Pronesti, 368 Mich. 453, 454, 118 N.W.2d 254, 255 (1962), defendant was subject to contempt proceedings initiated by plaintiff after defendant had refused to obey the divorce court's...