ONE COURT GIVETH ANOTHER TAKES AWAY!
Dads child support arrearage still his, $5,647.27 even after a juvenile court orders the child placed with him!
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FAMILY LAW UPDATE BY Terry Bankert 6/6/08
TRB P.C. SEE:You are invited to join me at Face Book http://www.facebook.com/people/Terry_Bankert/645845362
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CAN RELIEF FROM JUDGEMENT BE USED TO SET ASIDE CHILD SUPPORT? NO!
Issues: Divorce; Child support;
Whether MCR 2.612 (relief from judgment) may be used to set aside accrued child support; Retroactive modification of child support; MCL 552.603; Fisher v. Fisher; Statutory analysis; Peterson v. Peterson; Waple v. Waple; Adams v. Linderman; Whether the trial court properly granted relief under MCR 2.612©); Determination of a conflict between a statute and a court rule; Muci v. State Farm Mut. Auto. Ins. Co.; People v. Cleveland Williams; Equity; Whether the prosecutor in the juvenile case should have given notice of changed custody pursuant to MCR 3.205 to the family court in another county
Court: Michigan Court of Appeals (Published)
June 3, 2008 9:05 a.m.
No. 272327
Wayne Circuit Court
LC no 87-721014-DM
Case Name: Malone v. Malone
e-Journal Number: 39534
See:http://www.michbar.org/opinions/appeals/2008/060308/39534.pdf
Judge(s): Zahra, Talbot, and Meter
[This case has been modified for the purpose on media presentation. Read the original and consult an attorney before you rely on it. -trb]
NO RETROACTIVE MODIFICATION OF CHILD SUPPPORT IF DUE PROCESS PROTECTIONS ARE IN PLACE.
Deciding an issue of first impression as to whether MCR 2.612 allows a court to grant a party relief from a support order by retroactively modifying court-ordered child support, the court held as long as the minimum protections of due process are afforded to a party ordered to pay child support, the party cannot receive retroactive abatement of accrued child support obligations.
CASE BACKGROUND
DIVORCED 1988-SUPPORT $40 per week
The parties were divorced in October 1988, the plaintiff-mother was awarded custody of their only child in the divorce judgment, and defendant was ordered to pay $40 a week in child support.
In 1994, the support was increased to $80 a week plus an amount toward an arrearage.
WHILE DIVORCED THE PARENTS LIVED TOGETHER 1988-1992 CHILD SUPPORT CONTINUED TO CHARGE!
The parties CONTINUED TO LIVE together and separated in 1992. My guess is that mom was on public assistance.
MINOR CHILD LIVED WITH MOM 1992-2004
The child lived with plaintiff between 1992 and 2004.
DISRUPTIVE CHILD LIVES WITH DAD AFTER CHILD FIGHTS MOM, ORDERED BY JUVENILE COURT!
TWO MONTHS WITH DAD, FOUR MONTHS WITH MOM
Defendant alleged plaintiff and the child had "serious problems" in 2004, and domestic violence charges were filed against the child in juvenile court, due to an altercation with plaintiff. As a result, the child lived with defendant for two months in 2004, but then lived with plaintiff from April 2004 to July 15, 2004.
THE JUVENILE COURT ORDERED MINOR CHILD TO LIVE WITH DAD FROM 6/15/2004 TO PRESENT. THE MICHIGAN COURT OF APPEALS SAYS DAD STILL HAS TO PAY CHILD SUPPORT BECAUSE HE DID NOT FILE A MOTION TO STOP IT.
Defendant alleged the child was then released to his care and custody by the juvenile court and has resided with him since then.
DAD DID NOT HAVE MONEY TO HIRE AN ATTORNEY AND MOTION TO STOP HIS CHILD SUPPORT FOR TWO YEARS....CHILD IS WITH HIM AND HE IS STILL PAYING HER CHILD SUPPORT....
Defendant claimed financial hardship prevented him from filing a motion to change custody or modify support, but continued to pay support.
DAD SAYS I GOT THE CHILD, A COURT ORDERED IT, I SHOULD NOT HAVE TO PAY CHILD SUPPORT, RIGHT!!!!!
He filed a motion in the family court on March 7, 2006 to modify child support and to adjust the arrearage dating back to February 2004, to give him credit for support plaintiff received after the child was not in her custody. [ He also filed for a change of custody.]
TRIAL COURT GRANTED 100% ABATEMENT- TWO STATUTES IN CONFLICT
Mom testified that what father was saying as to where the child lived was true.
The trial court, relying on MCR 2.612, held the support should be abated 100 percent after the child was placed with defendant and set the arrearage at 0. The court held MCR 2.612©) and MCL 552.603(2) conflict and could not be reconciled.
THE FRIEND OF THE COURT SAID THE JUDGE SCREWED UP, DADS CHILD SUPPORT SHOULD HAVE BEEN STOPPED.
"AT THE CONCLUSION OF A HEARING, THE Wayne County Friend of the Court)FOC) referee indicated on the record that she believed that the Macomb County Juvenile Court ‘erred in not stopping his [defendants] child support and ordering mom to pay’ So, I think under those circumstances the court can rectify it. It was court error."
The referee said the court should be able to correct its own mistakes.
The referee determined that dad had the minor child for 19 months because of a Juvenile Court order. He was still charged support, assessed surcharge and he paid support.
[When the referee tried to set thing right, mom Plaintiff appealed to the circuit court judge.She raised the concept on non retroactive modification of child support, the most unfair draconian law designed. Citing MCL 552.603 and the Appellate case, Waple vs Waple, 179 Mich App 673 1989-trb]
THE REFEREE TRIED TO BE FAIR, THE JUDGE IN THE FAMILY TRIED TO BE FAIR, THE COURT OF APPEALS SAID YOU CANNOT BE FAIR BECAUSE THE MICHIGAN LEGISLATURE WILL NOT LET YOU...
THE STATUTE IS CLEAR AND SUPERIOR TO A COURT RULE
The statute represented a clear expression of Legislative policy on a substantive matter and the court rule must give way to the statute. Thus, the trial court erred in concluding MCR 2.612©) allowed it to abate defendant's child support arrearage. MCL 552.603(2) allows for the retroactive modification of child support from the date notice was given to the recipient of the support payments of the petition to modify support.
The Waple case talked about above was another case where the minor child lived with the parent who was ordered to pay child support. Why because of a law passed by the Michigan Legislature MCL 552.603. Before this piece of work was passed by the legislature child support could be changed because of a change in circumstances. The payee exercising custody when the judgement said other wise is a change in circumstance to change custody.
THE COURT OF APPEALS SAID THE COURT CANNOT BE FAIR OR EQUITABLE WHEN THE LEGISLATURE SAID THEY CANNOT.
PARTIAL MODIFICATION TO DATE OF FILING MOTION
Defendant was entitled to a partial retroactive modification of child support, effective March 7, 2006. Because it was not clear from the record whether he paid support since then or how much, the case was remanded for a determination of his support arrearage. Reversed and remanded.
The Michigan Court of appeals said the family court, the prosecutor in the juvenile court , the friend of the court has no responsibility to change custody and stop dads child support. We see this every day. It’s the same actors but because dad did not file a $20 motion he cannot get justice.
A DOOR LEFT OPEN
The defendant could pursue a civil remedy from plaintiff for her wrongful acceptance of child support when she did not have custody. Loack of notice of support orders may allow a constitutional due process protection
Saturday, June 07, 2008
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