Garrett v. Garrett

108 Mich. App. 258 (1981) 310 N.W.2d 355

GARRETT
v.
GARRETT.

Docket No. 53930.

Michigan Court of Appeals.

Decided July 28, 1981.

McAra & George, for plaintiff.

William J. Priehs, for defendant.

Before: M.J. KELLY, P.J., and BRONSON and R.M. DANIELS,^[*] JJ.

M.J. KELLY, P.J.

Plaintiff filed a complaint for divorce on September 29, 1971. The judgment of divorce was entered on December 3, 1973. A modified judgment of divorce was subsequently entered on March 28, 1974, requiring the defendant-father to support a minor daughter until she reached the age of 18 years or finished high school, whichever event occurred later, or until the further order of the court.

On November 14, 1979, plaintiff filed a petition to amend the judgment of divorce seeking an order directing the defendant-father to continue support and maintenance for his daughter to enable her to obtain a college education. At that time, the daughter was 18 years and 7 months old. The hearing on plaintiff's petition was held on August 7, 1980. The trial court granted a defense motion for dismissal based upon a perceived lack of subject-matter jurisdiction. From that decision this appeal is taken as of right.

In this appeal, plaintiff submits a single issue. It is alleged that under the facts of the case the trial court erred in granting defendant's motion to dismiss because the trial court had subject-matter jurisdiction pursuant to MCL 552.17a; MSA 25.97(1). We affirm.

Plaintiff's reliance upon Price v Price, 395 Mich 6; 232 NW2d 630 (1975), and Charlton v Charlton, 397 Mich. 84; 243 NW2d 261 (1976), is misplaced. In Price, the Supreme Court construed the petition for modification as pending on the effective date of the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., thus placing the petition within the act's savings clause. MCL 722.54; MSA 25.244(54). The Court's decision in Charlton is subject to a similar characterization since that appeal involved an objection to the support provisions in the parties' original judgment of divorce. Because the plaintiff's complaint for divorce was filed in late 1971, prior to the Age of Majority Act's effective date, the Court held the proceedings also to be within the act's savings provision. The importance of this distinction was recently summarized in McNames v McNames, 93 Mich. App. 477, 481; 286 NW2d 892 (1979), a case bearing substantial factual similarity to the instant dispute:

"It should also be noted that in Price the Supreme Court made specific reference to a prior voluntary agreement to continue support between the parties. We deem this to be of significance because, in our review of those reported cases where support was allowed to be continued, we have noted that in each there was either a prior agreement (Price, supra), or some form of reservation for future support in the original judgment of divorce, Barbier v Barbier, 45 Mich. App. 402; 206 NW2d 464 (1973), Milbrand v Milbrand, 66 Mich. App. 730; 239 NW2d 730 (1976). See also Anno: Statutory Change of Age of Majority as Affecting Pre-Existing Status or Rights, 75 ALR3d 228, especially § 7, pp 256-259.

"Here, there was neither an agreement nor any reservation for future support beyond age 18. Further, as in Allen v Allen, 63 Mich. App. 475; 235 NW2d 22 (1975), the instant petition was filed well beyond the effective date of the Age of Majority Act. We therefore conclude that the trial court was without authority to extend support in this case. We deem this result not necessarily desirable, but required." (Emphasis added.)

See also Wagner v Wagner, 105 Mich. App. 388; 306 NW2d 523 (1981), quoting the same passage but contrasting McNames on the basis that, in Wagner, a voluntary stipulation was entered providing for postmajority support.

In this case, the question of postmajority support was not raised prior to the Age of Majority Act's effective date. Thus, the savings provision of the act, under which prior orders for such support were upheld, is unavailable as a basis to vest the lower court with subject-matter jurisdiction to hear the plaintiff's petition. We conclude, therefore, that the trial court was correct in denying the petition for modification on jurisdictional grounds.

Affirmed.

NOTES

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