*1
App 730
66 v MILBRAND
MILBRAND
Opinion of the Court
1. Infants — of
Act —Statutes.
Age
obligations
Majority
of
not affect
Act does
accrued
(MCLA
1972,
1,
January
the-effective
of that act
date
etseq.).
etseq.;MSA
722.51
25.244[51]
Expenses Age
Support College
Majority
2.
— of
Divorce —Child
—
Act.
A
after
be modified
the effective date of
Majority
of
Act to
husband
divorced
19-year-old
of
son until the son
his
reaches
judgment
years,
the divorce
where
Majority
to the effective date of
Act and where
judgment
clause of the divorce
reserved the
support payments
birthday.
to educational
until a child’s 21st
D. E.
Support Modification—Age
3. Divorce —Child
—
Act.
court,
A trial
date of
effective
support pay-
order continuation of
week child
19-year-old
19-year-old
ments for a
where the
had an accrued
payments prior
the continuation
to the effective
act; however,
court,
a trial
after the
effective date
act,
authority modify
support provisions
without
judgment
they
a divorce
relate to a
child who has reached
age.
years of
Bohn,
Appeal
from
Theodore R.
Wayne,
J. Sub-
(Docket
mitted June
at Detroit.
No.
21351.)
Decided
1976.
January
References
for Points
in Headnotes
2d,
1, 3-7.
42 Am Jur
Infants
[1]
[2,
§§
2d,
Separation
Jur
24 Am
Divorce and
843.
§§
3]
Education as element
allowance for benefit of
in decree of
separation.
divorce or
Gantz & plaintiff. for Barr, Samuel W for defendant. Bronson, J., Before: P. and V. J. Brennan JJ. Brennan,
V. J. J. On December an order was. dissolving the marital relation- ship of Phyllis and provision Otto Milbrand. A the decree ordered defendant pay week per child for' the support of his four children. That support was
" * * * payable until each said child shall attain the age years, provided, however, of 18 that such and maintenance for each of said chil- dren shall continue until each child shall attain the years of 21 in the event attending child is a school continuously beyond his or her 18th birth- date.”
On February plaintiff filed a motion seeking a modification of the child support order respect with son, John, her youngest would defendant to pay for John’s ex- penses as a student at of Notre University Dame. At the time the motion was brought, John 19 years old. App Opinion op the Court
The trial judge granted plaintiffs motion and ordered that Judgment
“the of Divorce shall be modified to tuition, that costs, defendant room and board and incidental of John while he attends an learning, institution of or until the further order of the court.”
The trial rejected argument defendant’s recently enacted of Majority 25.244(51) 722.51 et him seq.; MSA seq., et relieved financial responsibility his son after he attained the stating: “This Court is of the that the Act has case, Judgment no effect on the rendered in this provision since the for child was entered *3 into to the effective date of the Act.” April
On defendant filed a motion to order, the modify support alleging that the court was without jurisdiction to order him to pay any sum of money support of his adult son John. judge The trial again held Age that the Majority Act did not affect rights which accrued prior date, to its effective the support order entered in 1959 requiring defendant to provide support for his children until each child attained age 18 age school, 21 if in right, was such a that, therefore, the court did jurisdiction have to modify the support order require to defendant to pay college the expenses of his son.
The sole presented issue for our consideration question involves the of whether support case, order in a divorce to the effec- Age tive date of the Act, of Majority may be modified judge after the effective date op to Act so as to husband his son who, on the effective date of the Act, had 18? hold age reached the of We support may order be modified when clause of order to so modify. reserved Price, in Price v ruling The recent Supreme Court (1975), 6; which NW2d case, arguments decided after in this held that Age of Majority obligations Act does not affect January which accrued before the effec- tive date of that act.
Defendant does not contest the fact that a sup- port entered before the effective date of the Age of Majority requiring Act a father up for á child of 21 as long as the child is still in school is valid and enforceable. Barbier, See Barbier v 45 Mich App (1973). argue, however, NW2d 464 does Defendant that after the child reaches of 18 a trial not amend the order so as to increase the amount of the father is re- quired pay. disagree. We seq.; MCLA 722.51 et of seq., 25.244(51) et clause, MSA contains a 25.244(54) 722.54; MSA provides: "Sec. 4. This impair act does not or affect done, offense committed or acquired, or a liability, penalty, ment incurred before this act takes punish- forfeiture or
effect, but the same enjoyed, asserted the same extent as if this passed. act had not been Such *4 proceedings may be consummated under and in accord- ance with law force at proceedings the time the are or were commenced. Proceedings pending at effective date of this act proceedings instituted act, any committed, right thereafter ing, offense accru- acquired, accrued or or liability, penalty, forfeiture App 66 punishment or before date this incurred may act be continued or under and in instituted accord- with ance at the time of the the law force commis- committed, act, right accruing,
sion offense ac- acquired, liability, penalty, or crued punishment or forfeiture or
incurred.” This clause makes clear relative of the here parties liabilities involved are to according be determined to the law as it stood prior to the effective date this act. This section provides Act " * * * * * * impair any not or right does affect * * * acquired, liability accrued or or a incur- effect, red before enjoyed, act this takes but the same be asserted and to the same as if passed.” extent this act had not been It provides further that proceedings instituted af- ter the date effective of the act for * * *
"right accruing, acquired, accrued or or liability incurred effective date continued or instituted under and in with accordance * ** the law in at the right accruing, force time of the * * * acquired, liability incurred.”
In the at case bar in 1959. This awas which had accrued effec- date tive act —the to child While it is true that the original order did not contain any provision requiring the son, it also true that order would beyond have been the trial court’s to grant, since because of the son’s at divorce, the time of proper *5 v 735 Opinion of the Court such showing requiring payment of circumstances v Johnson, made. Johnson not have 346 could (1956). 216, 426; 78 NW2d However Mich original clause did reserve the author- to order education ity
" * * * however, provided, that such support and for each of said children maintenance shall until child shall continue years each attain of 21 such attending event that continuously beyond his or 18th school her birthdate.” as And aforementioned this reservation created obligation the date of on order, which before the effective date of the savings act. clause Majority Act prior states which have accrued effective date of the act are to "enjoyed, as- serted and and to the same extent as if age majority] act had not been [the passed.”
Under effect law Majority Act child support modifiable, now, orders were and are "as the cir- parents, cumstances of the children, and the benefit of the 552.17; shall require”. MCLA MSA 25.97. That provision applies to the instant case is clear, feel, we under the provisions of MCLA 722.54; 25.244(54), MSA clause above quoted. prior to Similarly, the effective date of the Age of it was Majority Act held that a trial judge, under provisions 522.17A; MSA 25.97(1), had authority order reasona- expenses be for a paid ble child’s the child reached the of 18 but not after the age he she reached of 21. Johnson v John- son, Davis, supra, Davis App (1967). The therefore, NW2d 879 judge, prop- App 730 erly had the determined that he
Affirmed. assessed Costs to be defendant. Bronson, J.,P. concurred. *6 (dissenting). Holbrook, opinion
D. E. Jr. In my Price, v Price Supreme in Court decision (1975), supportive is not NW2d of Price v opinion in the instant case. In majority Price, supra, for modification of petition a sup- port pending order was in the circuit court when of Act became effective. The in Supreme Court’s decision that case was based upon premise. that In this case petition no such pending was in fact none was filed until 31 days following the effective date of the when defendant’s son 19 years was age. The two cases are therefore factually distin- guishable. dissenting
In I am not unmindful o Justice f e language Williams’ contained in footnot 5 of Price, Price supra, part wherein he stated in as follows: disposition our upon "While in this case rests applicability saving provision, of the we are also in- clined to the view that even after the effective date of Act a court enter an order or amend an order to education of a person for whom a order had been entered
before he or she 18.” above, however, appears to nothing be more than dicta since such language was unnec- totally disposition Hence, essary the case. in my opinion, this Court is not bound thereby. agree I savings While clause reads in * * *
part: "This act does not impair or affect any * * * acquired v Milbrand by * * * ”, 1 would not interpret takes effect in the the majority. it same manner as does While agree I there was a continued child, week, long at the rate of so such child attended an institution learning his or her beyond 18th I birthday up am this was the which accrued or had only right acquired prior
Majority Act.
I good cannot conscience believe that Legislature above-quoted portion intended the give clause to to the trial court carte support provi- blanche to rewrite sions of a decree or of divorce. judgment To so hold, opinion, would to confer my upon parents superior children of divorced to those enjoyed parents children whose were married living together on the effective date of the act. *7 I argued do not believe it can be intelligently old, an 18 year the effective date of the Age would have a cause of action his father for a education. my To way thinking, it is common simply sense that children of parents placed divorced should not be in such a preferred category; but this is what majority does this case. hold,
I language would under clause, the trial court was without authority modify support provision pro- viding for extended payments week to plaintiff long so continually attended an institution
learning beyond his or her 18th birthday up for in my this is the only which accrued or had acquired prior taking effect.
I would reverse.