Morrison v. Richerson

198 Mich. App. 202 (1992) 497 N.W.2d 506

MORRISON
v.
RICHERSON

Docket No. 126171.

Michigan Court of Appeals.

Submitted May 20, 1992, at Lansing. Decided November 9, 1992. Approved for publication February 3, 1993, at 9:00 A.M.

Michael D. Thomas, Prosecuting Attorney, and Terry R. Manwell, Assistant Prosecuting Attorney, for the plaintiff.

Roger J. Oeming, for the defendant.

Before: DOCTOROFF, C.J., and JANSEN and CORRIGAN, JJ.

PER CURIAM.

Defendant appeals from an order of the Saginaw Circuit Court requiring him to pay child support. We affirm.

Plaintiff's son was born in 1978. In October 1980, plaintiff, then a recipient of aid to families with dependent children (AFDC) benefits, sought an order of filiation, child support, and maintenance against defendant pursuant to the Paternity Act, MCL 722.712; MSA 25.492. The complaint listed plaintiff's address in Saginaw. At a hearing nearly nine years later, she first testified that when the complaint was filed she was living in Tuscola County.

Defendant initially denied paternity. In November 1981, the parties reached a compromise agreement. Defendant signed a standard, preprinted "Acknowledgment of Paternity and Waiver of Rights," agreeing to pay $10 a week child support. The document also included a handwritten addition, "TOTAL PAYMENT NOT TO EXCEED $5000.00." The court order required defendant to pay $10 a week until the child was eighteen "and/or the further Order of the Court," but failed to incorporate the $5,000 maximum child support provision from the settlement agreement. The discrepancy between the agreement and the order was not timely raised, and the order became final.

The parties did not return to court until 1987, when plaintiff, again an AFDC recipient, sought an order of income withholding. The friend of the court then sought to increase child support to $103 a week. The court rejected the referee's recommendation to deny the petition on the basis of the agreement:

The Defendant ... having signed an Acknowledgment of Paternity and the Court having entered an Order of filiation and there being no indication from the court records that the Court approved a Compromise Settlement of the parties concerning child support, nor are there any findings by the Court that the alleged Settlement makes adequate provision for the support and education of the child of the parties in accordance with [MCL 722.713;] MSA 25.493, therefore, the case will be remanded to the Referee for a determination of support for the minor child.

At the hearing, defendant, despite a subpoena, failed to produce his financial records and refused to testify on the advice of counsel. After a hearing de novo at which defendant testified as an adverse witness, the court granted the petition to increase child support.

I. JURISDICTION AND VENUE

Defendant asserts that the circuit court lacked jurisdiction or that venue was improperly laid in Saginaw County. We disagree.

The circuit court had subject-matter jurisdiction over the paternity question. At the time of the complaint, MCL 722.714(c); MSA 25.494(c) provided:

The complaint shall be made to, and for the purpose of this act jurisdiction is conferred upon the circuit court. [Emphasis supplied.]

The circuit court has subject-matter jurisdiction over an action to identify the father of a child born out of wedlock. Syrkowski v Appleyard, 420 Mich 367, 375; 362 NW2d 211 (1985). Until the judgment has been completely satisfied, the court has continuing jurisdiction over proceedings under the Paternity Act to increase or decrease the amount of child support fixed by the order of filiation. MCL 722.720(1); MSA 25.500(1). Bessmertnaja v Schwager, 191 Mich App 151, 156; 477 NW2d 126 (1991).

Defendant also claims that venue in Saginaw County was improper in 1981. We disagree. MCR 2.221 requires a motion for a change of venue "before or at the time the defendant files an answer," unless "the facts on which the motion is based were not and could not with reasonable diligence have been known to the moving party more than 14 days before the motion was filed." The venue issue was first raised 8 1/2 years too late. Plaintiff's allegedly improper residence could with reasonable diligence have been known within the court rule's time constraints. We could thus appropriately hold that the venue issue has been waived. MCR 2.221(C).

Even if the objection to venue was timely, it would not dispose of the matter. Venue in actions under the Paternity Act, MCL 722.714(1); MSA 25.494(1), is not jurisdictional. Although noncompliance with a statutory requirement voids jurisdiction in a divorce action, Stamadianos v Stamadianos, 425 Mich 1, 3; 385 NW2d 604 (1986), paternity cases are distinguishable. The language in the divorce and paternity statutes is significantly different.

MCL 552.9; MSA 25.89, relating to divorce actions, provides:

(1) A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and, except as otherwise provided in subsection (2), the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint. [Emphasis supplied.]

By contrast, MCL 722.714(1); MSA 25.494(1) reads:

A proceeding in accordance with this act shall be brought by the mother, the father, or the department of social services as provided in this act. Complaints shall be made in the county where the mother and child or 1 of them reside. If both the mother and child reside outside this state, then the complaint shall be made in the county where the putative father resides or is found. The fact that the child was conceived or born outside of this state shall not be a bar to entering a complaint against the putative father. [Emphasis supplied.]

The divorce statute's language plainly limits the power of the court: "A judgment of divorce shall not be granted ... unless the complainant or defendant has resided in this state for 180 days." (Emphasis supplied.) A divorce judgment in an action where the residency requirement is not satisfied is void.

The Paternity Act provision does not limit the court's power to enter judgments; it directs where the complaint is to be filed. "Complaints shall be made in the county where the mother and child or 1 of them reside." (Emphasis supplied). The statute does not provide a jurisdiction-stripping consequence for misfiled complaints.

The language of MCL 722.714(1); MSA 25.494(1) is similar to MCL 722.26; MSA 25.312(6), relating to child custody. Section 6 provides, "[I]f the circuit court of this state does not have prior continuing jurisdiction over the custody of a child, the action shall be submitted to the circuit court of the county where the child resides or may be found." (Emphasis supplied.) That section of the Child Custody Act, however, concerns venue rather than jurisdiction. McDonald v McDonald, 74 Mich App 119, 123, n 1; 253 NW2d 678 (1977). See also Kubiak v Steen, 51 Mich App 408, 412-413; 215 NW2d 195 (1974) (circuit court had jurisdiction under Child Custody Act even though child "was found" in another county); Bert v Bert, 154 Mich App 208, 213; 397 NW2d 270 (1986) (improper venue apparently unrelated to jurisdiction).

Even if venue was improper in Saginaw County, the circuit court had jurisdiction. However, venue was not improperly laid. Defendant's claim that plaintiff lived in Tuscola County in 1980 is premised on plaintiff's vague and inconsistent testimony in 1989.

Plaintiff was quite confused about the dates she moved ("I'm not quite sure [if it] was January of ``81 or ``82 [that she moved to Saginaw County]"; "[I]t would be in January of ``82, right?"; "Yes, I believe so, yes.") She also erroneously testified that the case was moved from Tuscola County to Saginaw County. Even defendant's counsel was prompted to respond, "You've indicated to me that you didn't move back into Saginaw County until after this case was settled." Moreover, defendant has not explained the complaint's listing of plaintiff's Saginaw address.

The credibility of witnesses is for the trier of fact in a paternity case. Kenner v Watha, 115 Mich App 521, 527; 323 NW2d 8 (1982), citing Houfek v Shafer, 7 Mich App 161, 172; 151 NW2d 385 (1967). The court properly could have found residence in Saginaw County on the basis of the address stated in the complaint and plaintiff's inconclusive hearing testimony. We therefore decline to disturb the lower court's ruling on this issue.

II. MODIFICATION OF THE SUPPORT ORDER

Defendant principally complains about the lower court's modification of the 1981 child support order. He erroneously contends that the $5,000 maximum support provision of the settlement agreement barred an increased amount.

A child has an inherent right to parental support. Ebel v Brown, 70 Mich App 705, 709; 246 NW2d 379 (1976). A parent cannot release or compromise a child's claim in a paternity suit. Beard v Skipper, 182 Mich App 352, 353-354; 451 NW2d 614 (1990), citing Faske v Bonanno, 137 Mich App 202, 203-204; 357 NW2d 860 (1984). See also Ydrogo v Ydrogo, 332 Mich 530, 533; 52 NW2d 345 (1952) (parental agreement not to require child support would not bind the court in a subsequent support proceeding); West v West, 241 Mich 679, 683-684; 217 NW 924 (1928) (parties in a divorce action cannot deprive the court of power to decree a child's maintenance).

The Paternity Act permits a compromise agreement in lieu of a filiation order on narrow terms:

An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise. [MCL 722.713(a); MSA 25.493(a). Emphasis supplied.]

In Tuer v Niedoliwka, 92 Mich App 694; 285 NW2d 424 (1979), the defendant agreed to pay $2,000 in exchange for dismissal without prejudice of an action seeking an order of filiation, but the agreement was not submitted for court approval. Although the defendant fully performed, the plaintiff later obtained a filiation order against him. This Court held:

[T]he attempted settlement, to be binding on the mother and child, required the approval of a court having jurisdiction to compel support and education of the child.

* * *

[W]e find an additional failure to comply with [the act's] requirements, in that there was no determination by the trial judge in the first proceeding that adequate provision for the support and education of the child was secured by payment or otherwise. [Id. at 699-700.]

The putative father in Van Laar v Rozema, 94 Mich App 619; 288 NW2d 667 (1980), agreed to provide child support, but never actually admitted paternity. Id. at 621. This Court held that the judgment confirming the compromise agreement could be modified because the support agreement provided for support until the child reached eighteen, graduated from high school "or until further order of the court." Id. at 623.

From a policy standpoint, this Court has taken a dim view of agreements purporting to sign away the rights of a child, particularly when the result of such an agreement may be that the child becomes a public charge.... The legislative intent to allow compromise agreements for the support of illegitimate children only if adequate provision for the child is secured is evidenced from the requirements of MCL 722.713; MSA 25.493. [Id. at 624.]

Defendant relies heavily on Hisaw v Hayes, 133 Mich App 639; 350 NW2d 302 (1984). However, in Hisaw, the trial court approved a settlement agreement that barred modification of support. In this case, the court never approved the $5,000 maximum provision. The order itself also contemplated modification of defendant's obligations.

The award of child support rests in the sound discretion of the trial court. The court's exercise of that discretion is presumed to be correct. Thompson v Merritt, 192 Mich App 412, 416; 481 NW2d 735 (1991). The trial court properly exercised its discretion to award a retroactive increase in child support. Even with a $412 monthly child support obligation, defendant, who earned nearly $40,000 a year, had a monthly surplus income of $269. His former $40 monthly obligations contributed to the child's becoming a public charge. Moreover, defendant obtained four lengthy adjournments without plaintiff's consent. Whether a party caused delay in the resolution of a petition is an important factor in determining the date on which any increased level of child support should become effective. Cochran v Buffone, 137 Mich App 761, 767; 359 NW2d 557 (1984). We see no abuse of discretion.

III. PLAINTIFF'S REPRESENTATION

Defendant finally argues that neither the Saginaw County friend of the court nor its assistant prosecutor had the authority to represent plaintiff. We do not agree.

The circuit court had continuing jurisdiction over this matter because judgment had not been "completely satisfied." MCL 722.720; MSA 25.500. The friend of the court is an employee of the circuit court in the judicial circuit it serves. The duties of the office fall under the direction and supervision of the chief circuit judge. MCL 552.503(4), (5); MSA 25.176(3)(4), (5).

The Friend of the Court Act specifically requires:

After a final judgment containing a child support order has been entered in a domestic relations matter, the office shall examine the records and conduct any other investigation considered necessary to determine whether the child support amount should be increased or decreased in view of ... changed financial conditions ...

(a) If a child is being supported in whole or in part by public assistance, not less than once each 2 years. [MCL 552.517(1); MSA 25.176(17)(1).]

Subsection 5 of § 17 defines "changed financial conditions" to mean "increases or decreases in the resources available to either party from any source." Subsection 4 of the same statute provides that "[t]he office shall petition the court for modification of the amount of a child support order if modification is determined to be necessary under subsection (1)." (Emphasis supplied.)

Once the friend of the court determined that the child was being supported by public assistance, and that the order was not yet fully satisfied, she was statutorily obligated to investigate defendant's "financial conditions." Finding changed financial conditions, she was equally obligated to petition for modification. Section 17 refers to a time "[a]fter a final judgment containing a child support order has been entered" without limitation. It was not intended to apply only to support orders entered after its effective date (July 1, 1983), as defendant appears to believe.

The assistant prosecutor's role is no less legitimate:

If the county department of social services of the county in which the complainant mother resides first determines her to be eligible for public assistance .. . then the prosecuting attorney ... shall represent the complainant mother in initiating and conducting the proceedings under this act. [MCL 722.714(3); MSA 25.494(3) (as amended, effective June 1, 1986).]

That the prosecutor must act if the mother is a resident of the county eligible for public assistance does not preclude his acting for another. In Young v Jangula, 176 Mich App 478, 479; 440 NW2d 642 (1989), this Court upheld a prosecutor's representation of the plaintiff in a paternity action. Because plaintiff has assigned her rights to the state, a prosecuting attorney properly represented the state's interests. That "[t]he complainant's attorney in the proceedings under the act represents the complainant rather than The People," 1 OAG, 1957, No 3020, pp 495, 497 (November 1, 1957), is not dispositive, because plaintiff has assigned the state her right to defendant's past-due obligation.

Affirmed.