297 N.W.2d 622 | Mich. Ct. App. | 1980
STATE OF MAINE
v.
HORTON
Michigan Court of Appeals.
James J. Gregart, Prosecuting Attorney, and Michael H. Dzialowski, Assistant Prosecuting Attorney, for plaintiff.
Dennis S. McCune, for defendant.
Before: R.B. BURNS, P.J., and MacKENZIE and J.T. KALLMAN,[*] JJ.
R.B. BURNS, P.J.
This is an appeal by the defendant, Edward M. Horton, from an order of the circuit court directing him to pay child support to plaintiff. We affirm.
The circuit court action was initiated by plaintiff under the Uniform Reciprocal Enforcement of Support Act (URESA), pursuant to MCL 780.159; MSA 25.225(9). By affidavit of Anna Horton, the plaintiff established that Mrs. Horton had received public assistance from plaintiff for the support of her minor child, Susan Darlene Horton, who had been born to her and defendant on December 1, 1963. Plaintiff claims that defendant has a duty to support the minor child and that he must reimburse plaintiff for the support it is providing to the child.
Defendant denies that he has a duty to support his minor child. Defendant claims that the judgment *92 of divorce provided that Mrs. Horton was not to remove the child from the State of Michigan without the approval of the court. Mrs. Horton had taken the child to Maine without court approval and on November 4, 1971, the court terminated defendant's obligation to support the minor child "until further order of this Court".
As framed by the trial court the sole issue presented is whether the November 4, 1971, order terminating support precludes the entry of a support order under URESA.
Pursuant to § 14 of URESA, defendant may be ordered to reimburse plaintiff for support furnished to his minor child if the trial court determines that defendant has a "duty of support". MCL 780.164; MSA 25.225(14). "Duty of support" is defined by the act to include:
"any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise". MCL 780.153(6); MSA 25.225(3)(6). (Emphasis added.)
The trial court correctly determined that a "duty of support" was "imposable" upon defendant. Under the language of the order terminating defendant's support duty and pursuant to MCL 552.17; MSA 25.97 the trial court has continuing jurisdiction to modify this provision of its previously issued judgment of divorce. Accordingly, as the trial court had the power to impose a duty of support upon defendant, defendant had a "duty of support" within the meaning of the act.
We further agree with the trial court's decision to exercise its power to impose upon defendant a duty of support (from the date of the entry of the *93 new order of support) notwithstanding that Mrs. Horton may be in contempt of court. Issues ancillary to a duty of support should not be considered in this URESA action.
Affirmed. No costs, a public question being involved.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.