Waple v. Waple ( 1989 )

179 Mich. App. 673 (1989) 446 N.W.2d 536

WAPLE
v.
WAPLE

Docket No. 110315.

Michigan Court of Appeals.

Decided August 21, 1989.

Wm. Michael White, P.C. (by Wm. Michael White), for plaintiff.

Before: MICHAEL J. KELLY, P.J., and WAHLS and HOLBROOK JR., JJ.

HOLBROOK, JR., J.

Plaintiff appeals from a post-divorce order modifying defendant's child support obligations by reducing an arrearage for overdue support payments. Since we agree with plaintiff's argument that the court was unauthorized to retroactively modify support for those periods prior to the date that the notice of defendant's petition for modification was given, we reverse.

Pursuant to the judgment of divorce, defendant's support obligations were fixed at $108 per week. Thereafter, defendant filed his petition for reduction of support on September 25, 1987, and a copy of the petition was mailed to plaintiff on September 23, 1987. According to the petition, one of the parties' two children left plaintiff's home and moved in with defendant on January 13, 1987. Pursuant to a stipulation of the parties, the circuit court entered an order on March 3, 1988, changing physical custody of the child from plaintiff to defendant and reducing defendant's weekly support obligation for the other child residing with plaintiff to $26, effective September 23, 1987.

On June 23, 1988, a show cause hearing was conducted concerning defendant's support arrearages, which totaled $4,860.64 as of April 29, 1988. At the hearing, the court was advised that defendant was given no credit against the arrearages for the period from February 1, 1987, the assumed date of the child's commencement of residence with defendant, until the September 23, 1987, effective date of the stipulated order reducing support. Citing MCL 552.603; MSA 25.164(3), plaintiff's attorney represented that the effective date of the modification order was stipulated to by the parties. The court indicated its belief that it had power to eliminate arrearages for support corresponding to the duration of the child's residence with the support obligor. The court ordered that defendant's weekly support be continued at $26 plus $10 to reduce the arrearages, which was indicated by written order. The court further ruled that the $26 weekly rate should be made retroactively effective to February 1, 1987, and that the arrearage should be recalculated accordingly, but this ruling was not memorialized in the written order disposing of the show cause matter.^[1]

Retroactive modification of support is now governed by recently enacted MCL 552.603; MSA 25.164(3), which provides in pertinent part:

(1) A support order issued by a court of this state shall be enforced pursuant to the requirements of this section.

(2) Except as otherwise provided in this section, a support order that is part of a judgment or is an order in a domestic relations matter as that term is defined in section 31 of the friend of the court act, Act No. 294 of the Public Acts of 1982, being section 552.531 of the Michigan Compiled Laws, is a judgment on and after the date each support payment is due, with the full force, effect, and attributes of a judgment of this state, and is not, on and after the date it is due, subject to retroactive modification.

(3) Retroactive modification of a support payment due under a support order is permissible with respect to any period during which there is pending a petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support.[^[2]]

By the unequivocal terms of this statute, retroactive modification of support for periods prior to the September 23, 1987, date of notice of the petition is prohibited. When a statute is clear and unambiguous, it must be applied as written, notwithstanding arguments that legislative intent requires a different interpretation. See Lansing v Lansing Twp, 356 Mich. 641, 648-649; 97 NW2d 804 (1959).

The end result — that defendant is precluded by statute from seeking a reduction in support arrearages for periods when the intended beneficiary of the support resided with him — seems particularly unfair when the law prior to the enactment of MCL 552.603; MSA 25.164(3) is considered. Previously, past-due support installments were subject to modification due to a change in circumstances. Talbot v Talbot, 99 Mich. App. 247, 252; 297 NW2d 896 (1980), lv den sub nom Talbot v Burns, 410 Mich. 903 (1981). Cf. Dresser v Dresser, 130 Mich. App. 130, 136-137; 342 NW2d 545 (1983). A change in physical custody is a change in circumstances. See Rohloff v Rohloff, 161 Mich. App. 766, 769; 411 NW2d 484 (1987), lv den 429 Mich. 869 (1987).

The issue, however, is not appropriate for a consideration of equitable circumstances because, even if the strict wording of the statute is ignored, the underlying legislative intent also precludes any flexibility in interpretation. The immediate motivation for the enactment of this statute was the inception of federal legislation requiring state law to include a provision making each support payment the equivalent of a final judgment and prohibiting retroactive modification. The mechanism for enforcement of the federal legislation is that the continuing eligibility of the state for federal funding for the Aid to Families with Dependent Children program is made conditional on the state recipient's adoption of the provision. Senate Legislative Analysis, SB 318, June 3, 1987. See 42 USC 666(a)(9). This suggests that our Legislature intended, consistent with overriding federal directives enforceable by a loss of funding, to remove entirely the discretion of the circuit court to consider a change in circumstances.

On remand, defendant's support arrearages shall be calculated and enforced consistent with the stipulated order of March 3, 1988, amending the judgment.

Reversed and remanded.

NOTES

[1] The court's ruling should have been embodied in a written order complying with the dictates of MCR 2.602. It is axiomatic that the court speaks only through its orders. Tiedman v Tiedman, 400 Mich. 571, 576, 255 NW2d 632 (1977).

[2] This statute also provides an exception for support obligations incurred prior to July 6, 1987, if the support payer or payee filed a petition for retroactive modification within sixty days after the friend of the court mailed or published a required notice of the change in the law effected by the enactment of MCL 552.603; MSA 25.164(3). The friend of the court was required to give this notice prior to October 6, 1987. See MCL 552.603(4) and (5); MSA 25.164(3)(4) and (5). However, defendant made no effort to avail himself of this exception in the proceedings below.