Weaver v. Giffels

• Decision Date: 10 November 2016
• Docket Number: Docket No. 327844.
• Parties: WEAVER v. GIFFELS.
• Court: Court of Appeal of Michigan — District of US

317 Mich.App. 671

895 N.W.2d 555

WEAVER

v.GIFFELS.

Docket No. 327844.

Court of Appeals of Michigan.

Submitted Sept. 8, 2016, at Grand Rapids.

Decided Nov. 10, 2016, at 9:00 a.m.

Miller Johnson (by Julie A. Sullivan, Kalamazoo and Richard E. Hillary, II, Grand Rapids) for Lisa A. Weaver.

James M. Giffels, Portage, in propria persona.

Before: MURRAY, P.J., and HOEKSTRA and BECKERING, JJ.

MURRAY, P.J.

Typically a divorced parent's child support obligation ends when the child turns 18 years old, i.e., is no longer a minor. An exception to that rule exists, however, when the child turns 18 but is still attending high school and is residing on a "full-time basis" with the child support recipient.

MCL 552.605b(2). This case presents the question of what is meant by residing on a "full-time basis" with the child support recipient. The circuit court, focusing on the parties' argument over the meaning of "full-time basis," concluded that residing on a full-time basis meant that the child must still be residing with the support recipient in full compliance with the child custody or parenting-time order. We hold that the support order is irrelevant to the analysis and that an 18–year–old child is residing on a "full-time basis" with the support recipient when the child is residing only with that parent. As a result, we reverse the circuit court order to the extent it ruled that compliance with the parenting-time order constituted "full-time," and we remand for the trial court to determine whether the 18–year–old resided with her mother on a full-time basis.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant were married on August 3, 1991, and had two children, KG and MG, during the marriage. Plaintiff filed for divorce, and the judgment of divorce eventually entered provided, among other things, that the parties would share joint legal and physical custody of the children. Specifically, the judgment provided that the children would reside primarily with plaintiff while defendant would have parenting time in an amount agreed to by the parties or, if no agreement could be reached, according to the schedule set forth in the judgment. Pursuant to the Uniform Child Support Order, incorporated by reference into the judgment of divorce, defendant was ordered to pay a total of $2,000 per month in child support.¹ The Uniform Child Support Order provided that defendant's support obligation for each child would continue

through the end of the month of the latter: 1) the child's 18th birthday, or 2) the last day of regularly attending high school full-time with the reasonable expectation of graduating, as long as the child is residing full-time with the recipient of support, or at an institution, but under no circumstances shall the support obligation continue after the month the child reaches [age] 19 and ½.^{[2 ]}

According to defendant, following entry of the judgment, the parties informally agreed to a parenting-time arrangement that allowed the children to reside with plaintiff four days per week and with defendant three days per week. That arrangement continued for all times relevant to these proceedings.

KG turned 18 years old on November 26, 2014. At that time, she was still enrolled in high school, with an expected graduation date in the spring of 2015. After she turned 18, defendant filed a motion in the Family Division of the Kalamazoo Circuit Court praying for an order terminating his support obligation as to KG, retroactive to November 26, 2014. In support, defendant recited the pertinent portion of the Uniform Child Support Order providing that defendant's support obligation ended either (1) at the end of the month of KG's eighteenth birthday or (2) at the end of the month in which KG no longer attended high school full-time while residing on a "full-time basis" with plaintiff. Defendant argued that the latter provision was inapplicable—and therefore his support obligation ended upon KG's eighteenth birthday—because while KG was still enrolled full-time in high school, she did not live, nor had she ever lived, with plaintiff on a full-time basis; instead, the parents shared physical custody, with KG spending three days per week with defendant.

A hearing on defendant's motion was held before a family division referee, who agreed with defendant, concluding that "[t]he statute [MCL 552.605b ] is really quite clear": it allows for postmajority child support only where the child is "regularly attending high school on a full-time basis, with a reasonable expectation of completing sufficient credits to graduate" and is living with the recipient of support on a full-time basis. With regard to the term "full-time basis," the referee opined that the term "means what it says," i.e., that the child must be living full-time with the recipient of support, not simply the full amount of time allotted to the recipient under the custody agreement. On the basis of these conclusions, a recommended order was submitted granting defendant's motion to terminate his support obligation to KG effective November 26, 2014.

Plaintiff filed a written objection to the referee's recommended order, asserting that the referee's definition of "full-time basis," effectively requiring KG to reside with plaintiff at all times rather than merely the time allotted to her under the parenting-time arrangement, was erroneous. Plaintiff asserted that "it would be unlikely that any child for whom child support is presently being ordered in the State of Michigan resides ‘full-time’ with either parent given the progression of shared parenting time, joint custody, etc." Thus, she argued, to define the term "full-time basis" in such a way as to require that the child live with the recipient of child support at all times, irrespective of a parenting-time arrangement, would lead to an "inequitable" result, i.e., that almost no parent supporting a postmajority child in high school would receive support.

After a hearing on plaintiff's objection, the circuit court entered an order denying defendant's motion to terminate his support obligation to KG as of her eighteenth birthday, holding that defendant's support obligation extended beyond KG's eighteenth birthday because she resided with plaintiff in full compliance with the custody order:

The general rule is and has been that child support terminates after the child reaches 18 years of age. MCL 552.605b [sic] states an exception to the general rule; that is, if a child is regularly attending high school on a full-time basis with the reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or an institution, [but in] no case after the child reaches 19 years and sixth months of age, child support may be ordered. This Court has dealt with many cases where the issue of whether the child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school [was in dispute]; however, this is the first case that this Court has considered where the issue of "residing on a full-time basis with the recipient of support" was at issue. No case law has been found that defines the term "residing full-time". If full-time means all the time as is suggested by the Defendant and a child resided part-time with the payor of support pursuant to parenting time which happens in most every case, child support for a child over 18 would hardly ever be ordered. If it is analogous to full-time employment, an individual does not work all of the time, but only involving a standard number of hours of working time, or for the entire time appropriate to an activity. It makes more sense that " full-time with the recipient of support" means spending all of the time with the recipient of support that she is ordered to be with, and not somewhere else like a girlfriend's, a boyfriend's, or someone else's place, and not either parent. For example, in the present case, [where] the child spends four days with the mother and three days with the father, residing full time with the recipient means that the child is residing the full four days with her mother.

Clearly, MCL 552.605(2) [sic] requires courts to use the Michigan Child Support Formula which accounts for the parenting time split between the parties. 2013 MCSF 3.03(B) says, "An offset for parenting time generally applies to every support determination whether in an initial determination or subsequent modification, whether or not previously given. " This Court does not read MCL 552.605b(2) as conflicting with [the MCSF], otherwise we would have to consider whether any overnights with the payor renders the recipient's residence a "part-time" residence, and thereby undermine the intent of the statute and the policies embodied in the Michigan Child Support Formula.

... Therefore, the Defendant would be required to continue to pay child support at the ordered rate until the child graduates from high school as long as the child is residing with the mother the four days per week which the child support was based upon.

Following entry of the trial court's order, we ultimately granted defendant's delayed application for leave to appeal, Weaver v. Giffels, unpublished order of the Court of Appeals, entered October 15, 2015 (Docket No. 327844). We now reverse and remand for further proceedings.³

II. ANALYSIS

This Court reviews a trial court's decision to modify child support for an abuse of discretion. Burba v. Burba (After Remand), 461 Mich. 637, 647, 610 N.W.2d 873 (2000). However, we review de novo any attendant questions of law, which of course include the trial court's interpretation of court rules and statutes. Id.; Neville v. Neville (On Remand), 295 Mich.App. 460, 466, 812 N.W.2d 816 (2012). As we observed in Lee v. Smith, 310 Mich.App. 507, 509, 871 N.W.2d 873 (2015), in determining the meaning of a statute,

[a] court's primary goal when interpreting a

...