Miskimon v. Miskimon , 173 Mich. App. 393 ( 1988 )

173 Mich. App. 393 (1988) 433 N.W.2d 419

MISKIMON
v.
MISKIMON

Docket No. 98973.

Michigan Court of Appeals.

Decided December 5, 1988.

Neithercut, Klapp, Shegos, Dillard & Banas (by James C. Dillard), for plaintiff.

Bellairs, Dean, Cooley, Siler & Moulton (by Richard E. Cooley), for defendant.

Before: DOCTOROFF, P.J., and CYNAR and P.D. HOUK,^[*] JJ.

P.D. HOUK, J.

Plaintiff Timothy A. Miskimon appeals from a February 13, 1987, order which modified the parties' judgment of divorce. He raises two claims of error: (1) the trial court misinterpreted the antinullification provision of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), MCL 780.151 et seq.; MSA 25.225(1) et seq.; and (2) the trial court erred in ordering a retroactive increase in plaintiff's child support obligations. We affirm.

On September 2, 1980, the parties were granted a judgment of divorce. Custody of the two minor children was granted to defendant Margaret A. Miskimon, also known as Margaret A. Laurin. Plaintiff was granted visitation rights and ordered to pay $120 in weekly child support. This amount was based upon the finding that plaintiff's net pay was $360 per week.

At the time of the divorce, both parties resided in the State of Michigan. After the divorce, plaintiff moved to Florida. According to the Genesee County Friend of the Court records, by January, 1981, plaintiff was approximately $1,500 in arrears for the child support payments; by February, 1982, the arrearage totaled approximately $2,500.

Defendant filed a complaint, pursuant to the RURESA, for the enforcement of the arrearage payments. The complaint was properly certified and sent to the responding state, Florida, for further proceedings. On September 15, 1982, a Florida circuit court judge ordered plaintiff to pay $325 per month for child support. Plaintiff began payment of this amount. Under MCL 780.171; MSA 25.225(21), these payments were also credited against the 1980 Michigan judgment of support.

In May, 1984, the same Florida circuit court held that plaintiff was not in arrears under the Michigan judgment and, in fact, had overpaid $2,067.52 under that judgment. It also held that plaintiff owed $630 under the Florida support order.

Plaintiff subsequently moved from Florida to the State of Washington. His income increased substantially from 1983 through 1985, to average $65,000 per year, although it was anticipated to decrease to approximately $50,000 in 1987.

On October 10, 1985, defendant petitioned to amend the judgment of divorce by increasing child support. Apparently, while investigating defendant's claim for increased child support, the Genesee County Friend of the Court discovered that, as of April 1, 1986, plaintiff's arrearages totaled approximately $12,000. Defendant moved that the arrearages be set off against the $12,500 indebtedness that defendant owed plaintiff as equity in the former marital home. She also moved for a specific order with regard to the effect of the Florida support order on the Michigan judgment.

In a pretrial memorandum dated September 10, 1986, the trial court stated that, in its opinion

the responding state can make a provision for support to be paid that is lower than the original order set by the Michigan court, but that neither modifies nor changes the previous court order and the amounts paid on the order of the responding states [sic] are merely applied toward the support but do not act to forgive or do away with any arrearage which may be accumulating or that may have accrued.

The trial court gave effect to this opinion when it held in a November 24, 1986, hearing that the Florida support order did not modify the Michigan judgment and that arrearages could continue to accumulate under the Michigan judgment. In reaching this holding, the court specifically rejected the May, 1984, decision of the Florida circuit court. Therefore, defendant was granted partial summary disposition as to the order on the effect of the Florida support order. Her other arguments, including the request for an increase in child support, were denied summary disposition.

After a February 5, 1987, bench trial, plaintiff was ordered to pay $288 weekly for child support retroactively from February 1, 1986, through January 1, 1987. Starting January 1, 1987, plaintiff was required to pay $225 per week in support.

Plaintiff's first claim of error is that the trial court misinterpreted the RURESA'S antinullification (also referred to as the antisupersession) provision when it held that the 1982 Florida support order did not modify the 1980 Michigan judgment. Plaintiff argues that the payments that he made on the Florida order, which were credited in Michigan, completely satisfied his support obligation and no arrearage could accumulate.

Before the substance of this argument can be analyzed, two other issues must be discussed. First, it should be noted that the meaning of the antinullification provision, MCL 780.171; MSA 25.225(21), was substantially changed by the 1985 amendments. Since the amendments related only to remedy or procedure, they may be given retrospective construction. See Borkus v Michigan National Bank, 117 Mich. App. 662, 668-669; 324 NW2d 123 (1982), lv den 417 Mich. 998 (1983); Franks v White Pine Copper Division, 422 Mich. 636, 672; 375 NW2d 715 (1985), reh den sub nom Chambers v General Motors Corp, 424 Mich. 1202 (1985).

Second, we expressly adopt the position that a trial court, in a responding state, may enter its own prospective support order which differs in amount from the foreign support order. This ruling is in keeping with the vast majority of states which have addressed the issue. See Thompson v Thompson, 366 NW2d 845, 847 (SD, 1985). Although this rule does not apply to the instant case since, here, Michigan is the initiating state, the corollary of the rule applies in that a Michigan court must now determine the effect of a foreign order which set a lower amount of child support than did the Michigan judgment.

The antinullification provision provides:

A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this state. [MCL 780.171; MSA 25.225(21).]

An ambiguity exists in this provision in that it only speaks to nullification, and does not clarify whether a support order can be modified. Thus, the following two scenarios are possible: (1) the Florida support order modifies and, in effect, replaces, the Michigan judgment from the date of issuance of the Florida order, onward; or (2) the Florida order exists separately from the Michigan judgment, which remains unmodified. Under the second scenario, any payments made under the Florida order are credited against the Michigan judgment, but arrearages can accumulate pursuant to the Michigan judgment.

Under generally recognized principles of statutory construction, if an ambiguity exists, it is this Court's duty to give effect to the intent of the Legislature in enacting the statute. Santia v Bd of State Canvassers, 152 Mich. App. 1, 5; 391 NW2d 504 (1986), quoting Pittsfield Twp v City of Saline, 103 Mich. App. 99, 104-105; 302 NW2d 608 (1981). To resolve a perceived ambiguity, a court will look to the object of the statute, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute's purpose. Id. Also, ambiguous statutes will be interpreted as a whole and construed so as to give effect to each provision and to produce a harmonious and consistent result. Id.

As stated in MCL 780.152; MSA 25.225(2), "[t]he purposes of this act are to improve, extend, and make uniform by reciprocal legislation the enforcement of duties of support." The act is procedural only, it does not create any duties of family support. It is concerned solely with the enforcement of the already existing duties when the obligee is in one state and the obligor is in another. See Anno: Construction and effect of provision of Uniform Reciprocal Enforcement of Support Act that no support order shall supersede or nullify any other order, 31 ALR4th 347, 351; Fitzwater v Fitzwater, 97 Mich. App. 92, 96; 294 NW2d 249 (1980). The RURESA'S provisions set forth the rules that govern the two-state proceedings.

Although the question whether an original judgment is modified by a foreign support order is one of first impression in the State of Michigan, other jurisdictions have previously dealt with this problem. See 31 ALR4th 347, supra. We agree with those courts which have held that an initiating state is not bound by the terms of a foreign support order when calculating arrearages due under the original judgment of support.

MCL 780.154; MSA 25.225(4) states that "[t]he remedies herein provided are in addition to and not in substitution for any other remedies." Therefore, the foreign support orders provide additional, supplementary, or cumulative remedies, and do not nullify, supersede, or modify the original support decree. See Thompson, supra. Under this reasoning, the original support order is only affected by the payments credited to it pursuant to the antinullification provision. See Banton v Mathers, 159 Ind App 634; 309 NE2d 167 (1974), citing Howard v Howard, 191 So 2d 528, 531 (Miss, 1966); See also Oglesby v Oglesby, 29 Utah 2d 419; 510 P2d 1106 (1973). The reason for the credit is to prevent duplication of payment. Ainbender v Ainbender, 344 A2d 263, 265 (Del Super, 1975). An obligor is not relieved of his duties under the original order, and he is entitled to a credit for only the amounts he has actually paid. Banton, supra. Therefore, an arrearage can accumulate if the foreign support order calls for payments which are less than the amount owing under the original order.

We recognize that some courts, including our own, see Fitzwater, supra, have used the word "modify" when discussing the impact of a foreign support order. However, to paraphrase the Oglesby court, we believe that such term was used in the sense that the amount of support may be modified, but not the decree of the initiating state. See Oglesby, 510 P2d 1107. Since the effect of the foreign support order is prospective only, it does not modify the original judgment.

This ruling is not unfair to plaintiff since he could have moved, in the Michigan courts, to decrease his support obligations. See MCL 552.17; MSA 25.97. This approach would not involve the RURESA. The trial judge did not err in finding that arrearage appropriately accumulated under the 1980 Michigan judgment of divorce.

In his second argument, plaintiff claims that the trial court erred in amending the judgment of divorce to retroactively increase child support since his income was expected to decrease from its 1983-1985 levels. It is within the discretion of a trial court to order an increase or decrease in child support any time after the petition for modification has been filed. Cochran v Buffone, 137 Mich. App. 761, 766; 359 NW2d 557 (1984). We find that defendant sustained her burden to present evidence establishing a change in circumstances justifying a retroactive increase in child support.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.