McFarlane v. McFarlane , 223 Mich. App. 119 ( 1997 )

566 N.W.2d 297 (1997) 223 Mich. App. 119

Sue Ann McFARLANE, Plaintiff-Appellant,
v.
John G. McFARLANE, Defendant-Appellee.

Docket No. 188848.

Court of Appeals of Michigan.

Submitted December 10, 1996, at Grand Rapids. Decided April 18, 1997, at 9:35 a.m. Released for Publication July 16, 1997.

Walter L. Harrison, Grand Rapids, for Plaintiff-Appellant.

Roper Bauer, P.C. by George E. Bauer, Holland, for Defendant-Appellee.

Before HOOD, P.J., and NEFF and M.A. CHRZANOWSKI^[*], JJ.

NEFF, Judge.

Plaintiff Sue Ann McFarlane appeals a circuit court order holding that most of her claim against defendant John G. McFarlane for unpaid child support was barred by the ten-year statute of limitations contained in M.C.L. § 600.5809(3); M.S.A. § 27A.5809(3). We reverse and remand for further proceedings.

I

The parties were divorced in 1974 in Emmet County, Iowa. Approximately twenty years later, plaintiff brought an action pursuant to the Interstate Income Withholding Act (IIWA), M.C.L. § 552.671 et seq.; M.S.A. § 25.227(1) et seq., to recover from defendant over $26,000 in unpaid child support. The circuit court held that most of plaintiff's claim was barred by the ten-year statute of limitations contained in M.C.L. § 600.5809(3); M.S.A. § 27A.5809(3). Accordingly, the court entered judgment in the amount of $6,440, representing those child support payments that became due less than ten years before plaintiff's complaint was filed. The court further ordered that, pursuant to the IIWA, defendant be subject to income withholding in the amount of $75 a week until the judgment is satisfied.

II

Plaintiff argues that the circuit court erred in determining that most of her claim for unpaid child support was time-barred because, under M.C.L. § 600.5853; M.S.A. § 27A.5853, the statute of limitations was tolled until defendant moved to Michigan in 1984. For the reasons that follow, we agree.

A

Although various remedies were available to plaintiff to enforce the child support order, she chose to proceed under the IIWA.^[1] This act is to be construed liberally to effect its purpose, which is to facilitate the enforcement of support orders of other jurisdictions through the withholding of income earned in Michigan. M.C.L. § 552.672; M.S.A. § 25.227(2).

Among the limited defenses available to defendant under the IIWA is that the statute of limitations precludes enforcement of all or part of the arrearage.^[2] M.C.L. § 552.678(2); M.S.A. § 25.227(8)(2). Under the act, "the statute of limitations of this state for maintaining an action on support arrearages shall apply." M.C.L. § 552.683; M.S.A. § 25.227(13). This period of limitation is ten years. M.C.L. § 600.5809(3); M.S.A. § 27A.5809(3); Ewing v. Bolden, 194 Mich.App. 95, 99, 486 N.W.2d 96 (1992).

The period of limitation begins to run against each child support payment when it becomes due. Ewing, supra at 99, 486 N.W.2d 96. Therefore, absent any tolling of the statute of limitations, plaintiff's recovery would be limited to those installments accruing within the ten years preceding the filing of her action in 1994.

B

The tolling provision at issue here, M.C.L. § 600.5853; M.S.A. § 27A.5853, provides as follows:

If any person is outside of this state at the time any claim accrues against him the period of limitation shall only begin to run when he enters this state unless a means of service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. If after any claim accrues the person against whom the claim accrued is absent from this state, any and all periods of absence in excess of 2 months at a time shall not be counted as any part of the time limited for the commencement of the action unless while he was outside of this state a means for service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. [Emphasis added.]

Our Legislature is presumed to have intended the meaning it plainly expressed. In re Lee Estate, 193 Mich.App. 586, 589, 484 N.W.2d 411 (1992). Thus, if the language used by the Legislature is clear and unambiguous, no further judicial interpretation of the statute is permitted. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996).

In the present case, there is no allegation that there was any means of service of process for a Michigan court to obtain personal jurisdiction over defendant before he moved to this state in 1984. Under the plain meaning of M.C.L. § 600.5853; M.S.A. § 27A.5853, therefore, the statute of limitations did not run while defendant was outside this state. Consequently, plaintiff's claim under the IIWA, filed within ten years after defendant moved to Michigan and subjected himself to the circuit court's jurisdiction, is not barred by the applicable statute of limitations. The circuit court erred in entering judgment to the contrary.

Reversed and remanded for further proceedings. We do not retain jurisdiction. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.

NOTES

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

[1] For example, plaintiff could have petitioned the Iowa court that issued the support order and retained jurisdiction over the matter, or proceeded under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), M.C.L. § 780.151 et seq.; M.S.A. § 25.225(1) et seq.

Although plaintiff was never without a forum for enforcing the support order, our Legislature has clearly expressed its desire to provide custodial parents with various remedies to collect unpaid child support:

The remedy provided in [the IIWA] is in addition to, and not in substitution for, any other remedy otherwise available to enforce a support order of another jurisdiction. Relief under this act shall not be denied, delayed, or otherwise affected because of the availability of other remedies, nor shall relief under any other statute be delayed or denied because of the availability of this remedy. [M.C.L. § 552.674; M.S.A. § 25.227(4)].

[2] An obligor under the IIWA may raise only the following defenses:

(a) That withholding is not proper because of a mistake of fact concerning the amount of current or overdue support or the identity of the obligor.

(b) That the court or agency which issued the support order entered under this act lacked personal jurisdiction over the obligor.

(c) That the support order entered under this act was obtained by fraud.

(d) That the statute of limitations under section 13(3) precludes enforcement of all or part of the arrearages. [M.C.L. § 552.678(2); M.S.A. § 25.227(8)(2).]