447 N.W.2d 775 | Mich. Ct. App. | 1989
BALUCH
v.
BALUCH
Michigan Court of Appeals.
Bromley, Roy & Dawson (by David R. Dawson), for defendant.
*691 Before: WAHLS, P.J., and McDONALD and C.W. SIMON, JR.,[*] JJ.
PER CURIAM.
Defendant appeals as of right from an order modifying a judgment of divorce to increase defendant's child support payments and an order denying defendant's motion for reconsideration and for an evidentiary hearing.
The first issue presented is whether the circuit court has jurisdiction to grant child support until the child graduates from high school even though at the time of graduation the child will be over eighteen years old. Defendant claims that the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., bars the circuit court from requiring defendant to pay child support beyond the child's eighteenth birthday. We disagree.
MCL 552.17a; MSA 25.97(1) provides for the circuit court's jurisdiction over child support orders:
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 ... 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.
Further, MCR 3.209(B)(1)(b) provides that a support order or final judgment must
provide for payment for a child until the child reaches the age of majority or graduates from high *692 school, whichever is later, or, in exceptional circumstances, until further order of the court.
Presently, there is a split of authority on whether a circuit court has jurisdiction to award child support beyond the eighteen-year age of majority.
The Age of Majority Act, MCL 722.52; MSA 25.244(52), provides:
Notwithstanding any other provision of law to the contrary, ... a person who attains 18 years of age... 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.
The majority of courts have held that, since the circuit court's jurisdiction in divorce proceedings is defined by statute, the provisions in the Age of Majority Act limit the court's jurisdiction to order child support beyond the age of majority. Felcoski v Felcoski, 159 Mich. App. 762, 765; 407 NW2d 11 (1987), and cases cited therein.
However, in Paaso v Paaso, 170 Mich. App. 628; 428 NW2d 724 (1988), lv den 431 Mich. 1207 (1988), this Court disagreed with the result reached in Felcoski. The Paaso Court reconciled the differences between the Age of Majority Act and the jurisdictional statute. Citing dicta in Price v Price, 395 Mich. 6, 11, n 5; 232 NW2d 630 (1975), and the adoption of MCR 3.209(B)(1)(b), the Paaso Court found that the gap between the eighteenth birthday and high school graduation constitutes an "exceptional circumstance" within the meaning of the jurisdictional statute. The Paaso Court reasoned that to hold otherwise would render the "exceptional circumstances" language in the jurisdictional statute nugatory.
*693 We choose to follow the reasoning expressed in Paaso and find that graduation from high school constitutes an exceptional circumstance. Therefore, a circuit court's jurisdiction extends until a child is graduated from high school.
Defendant also claims that the lower court erred in adopting the Friend of the Court's recommendation without an evidentiary hearing after defendant objected to the recommendation. We agree.
Where parties fail to consent to a modification and there exists a factual dispute concerning the circumstances relating to the petition for modification, the court is obliged to hold an evidentiary hearing. Petoskey v Kotas, 147 Mich. App. 487, 490; 382 NW2d 804 (1985). In reaching its determination, the trial court may consider a report of the Friend of the Court, but the report is inadmissible as evidence unless all the parties agree to its admissibility. Id.
Defendant strenuously objected to the Friend of the Court's computation of the increase of child support and existence of changed circumstances.
Defendant requested an evidentiary hearing both at the time of the motion for modification and at a subsequent motion for reconsideration. We find that the court erred in relying on the Friend of the Court's recommendation and in failing to hold an evidentiary hearing. We find that defendant is entitled to an evidentiary hearing.
We affirm in part, reverse in part, and remand for an evidentiary hearing. We do not retain jurisdiction.
McDONALD, J. (concurring in part and dissenting in part).
I agree with the majority opinion holding that the appellant is entitled to an evidentiary hearing upon proper request. However, I disagree with the holding that a circuit court has the power *694 to order child support beyond a child's eighteenth birthday until he or she graduates from high school. Felcoski v Felcoski, 159 Mich. App. 762; 407 NW2d 11 (1987); Passo v Passo, 170 Mich. App. 628; 428 NW2d 724 (1988) (dissenting opinion of DANHOF, C.J.), lv den 431 Mich. 1207 (1988).
A circuit court's jurisdiction over child support is derived from MCL 552.17a; MSA 25.97(1), which was in effect in August, 1970. The Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(5) et seq., was enacted and became effective January 1, 1972, and provided:
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. [Emphasis added.]
If the Legislature intended to extend a parent's duty to support a child beyond the child's eighteenth birthday, it easily could have so provided and exempted the provisions of MCL 552.17a; MSA 25.97(1).
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
