Milbrand v. Milbrand

66 Mich. App. 730 (1976) 239 N.W.2d 730 MILBRAND v. MILBRAND Docket No. 21351. Michigan Court of Appeals. Decided January 26, 1976. *731 Gantz & Abrams, for plaintiff. Samuel W. Barr, for defendant. Before: BRONSON, P.J., and V.J. BRENNAN and D.E. HOLBROOK, JR., JJ. V.J. BRENNAN, J. On December 21, 1959, an order was entered dissolving the marital relationship of Phyllis and Otto Milbrand. A provision of the decree ordered defendant to pay $25 per week per child for the support of his four children. That support was "* * * payable until each said child shall attain the age of 18 years, provided, however, that such payment for the support and maintenance for each of said children shall continue until each child shall attain the age of 21 years in the event that any such child is attending a school continuously beyond his or her 18th birthdate." On February 2, 1972, plaintiff filed a motion seeking a modification of the child support order with respect to her youngest son, John, which would require defendant to pay for John's expenses as a student at the University of Notre Dame. At the time the motion was brought, John was 19 years old. *732 The trial judge granted plaintiff's motion and ordered that "the Judgment of Divorce shall be modified to provide that the defendant pay the tuition, room and board costs, and incidental expenses of John while he attends an institution of higher learning, or until the further order of the court." The trial judge rejected defendant's argument that the recently enacted Age of Majority Act, MCLA 722.51 et seq.; MSA 25.244(51) et seq., relieved him of any financial responsibility for his son after he attained the age of 18, stating: "This Court is of the opinion that the Age of Majority Act has no effect on the Judgment rendered in this case, since the provision for child support was entered into prior to the effective date of the Act." On April 25, 1974, defendant filed a motion to modify the support order, alleging that the court was without jurisdiction to order him to pay any sum of money for the support of his adult son John. The trial judge again held that the Age of Majority Act did not affect rights which accrued prior to its effective date, that the support order entered in 1959 requiring defendant to provide support for his children until each child attained age 18 or age 21 if in school, was such a right, and that, therefore, the court did have jurisdiction to modify the support order to require defendant to pay the college expenses of his son. The sole issue presented for our consideration involves the question of whether a child support order in a divorce case, entered prior to the effective date of the Age of Majority Act, may be modified by the trial judge after the effective date *733 of the Age of Majority Act so as to require the husband to pay the college expenses of his son who, on the effective date of the Age of Majority Act, had reached the age of 18? We hold that the order may be modified when the support clause of the original order reserved the right to so modify. The recent Supreme Court ruling in Price v Price, 395 Mich 6; 232 NW2d 630 (1975), which was decided after arguments in this case, held that the Age of Majority Act does not affect obligations which accrued before January 1, 1972, the effective date of that act. Defendant does not contest the fact that a support order entered before the effective date of the Age of Majority Act requiring a father to provide support for a child up to the age of 21 as long as the child is still in school is valid and enforceable. See Barbier v Barbier, 45 Mich App 402; 206 NW2d 464 (1973). Defendant does argue, however, that after the child reaches the age of 18 a trial judge may not amend the support order so as to increase the amount of support the father is required to pay. We disagree. The Age of Majority Act, MCLA 722.51 et seq.; MSA 25.244(51) et seq., contains a savings clause, MCLA 722.54; MSA 25.244(54) which provides: "Sec. 4. This act does not impair or affect any act done, offense committed or right accruing, accrued or acquired, or a liability, penalty, forfeiture or punishment incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully and to the same extent as if this act had not been passed. Such proceedings may be consummated under and in accordance with the law in force at the time the proceedings are or were commenced. Proceedings pending at the effective date of this act and proceedings instituted thereafter for any act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture *734 or punishment incurred before the effective date of this act may be continued or instituted under and in accordance with the law in force at the time of the commission of the act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred." This clause makes clear that the relative rights and liabilities of the parties here involved are to be determined according to the law as it stood prior to the effective date of this act. This section provides that the Age of Majority Act "* * * does not impair or affect any * * * right accruing, accrued or acquired, or a liability * * * incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully and to the same extent as if this act had not been passed." It further provides that proceedings instituted after the effective date of the act for any "right accruing, accrued or acquired, or liability * * * incurred before the effective date of this act may be continued or instituted under and in accordance with the law in force at the time of the * * * right accruing, accrued or acquired, or liability * * * incurred." In the case at bar the original child support order was entered by the trial judge in 1959. This was a right which had accrued prior to the effective date of the act — the right to child support. While it is true that the original child support order did not contain any provision requiring the payment of college expenses for the son, it is also true that any such order would have been beyond the trial court's authority to grant, since because of the son's age at the time of the divorce, a proper *735 showing of circumstances requiring such payment could not have been made. Johnson v Johnson, 346 Mich 418, 426; 78 NW2d 216, 220 (1956). However the original support clause did reserve the authority to order education support "* * * provided, however, that such payment for the support and maintenance for each of said children shall continue until each child shall attain the age of 21 years in the event that any such child is attending a school continuously beyond his or her 18th birthdate." And as aforementioned this reservation created the obligation on the date of the original support order, which was before the effective date of the act. The savings clause of the Age of Majority Act states that rights which have accrued prior to the effective date of the act are to be "enjoyed, asserted and enforced, as fully and to the same extent as if [the age of majority] act had not been passed." Under the law in effect prior to the effective date of the Age of Majority Act child support orders were modifiable, and are now, "as the circumstances of the parents, and the benefit of the children, shall require". MCLA 552.17; MSA 25.97. That this provision applies to the instant case is clear, we feel, under the provisions of MCLA 722.54; MSA 25.244(54), the savings clause above quoted. Similarly, prior to the effective date of the Age of Majority Act it was held that a trial judge, under the provisions of MCLA 522.17A; MSA 25.97(1), had the authority to order that reasonable expenses be paid for a child's college education after the child reached the age of 18 but not after he or she reached the age of 21. Johnson v Johnson, supra, Davis v Davis, 8 Mich App 104; 153 NW2d 879 (1967). The trial judge, therefore, properly *736 determined that he had the authority to order such support. Affirmed. Costs to be assessed against defendant. BRONSON, P.J., concurred. D.E. HOLBROOK, JR. (dissenting). In my opinion the Supreme Court decision in Price v Price, 395 Mich 6; 232 NW2d 630 (1975), is not supportive of the majority opinion in the instant case. In Price v Price, supra, a petition for modification of a support order was pending in the circuit court when the Age of Majority Act became effective. The Supreme Court's decision in that case was based upon that premise. In this case no such petition was pending and in fact none was filed until 31 days following the effective date of the Age of Majority Act, when defendant's son was 19 years of age. The two cases are therefore factually distinguishable. In dissenting I am not unmindful of Justice WILLIAMS' language contained in footnote 5 of Price v Price, supra, wherein he stated in part as follows: "While our disposition in this case rests upon the applicability of the saving provision, we are also inclined to the view that even after the effective date of the Age of Majority Act a court may enter an order or amend an order to provide for the college education of a person for whom a support order had been entered before he or she was 18." The above, however, appears to be nothing more than dicta since such language was totally unnecessary to the disposition of the case. Hence, in my opinion, this Court is not bound thereby. While I agree that the savings clause reads in part: "This act does not impair or affect any * * * right accruing, accrued or acquired * * * before *737 this act takes effect * * *", I would not interpret it in the same manner as does the majority. While I agree there was a continued right to support for any child, at the rate of $25 per week, so long as any such child attended an institution of higher education and learning beyond his or her 18th birthday up to age 21, I am of the opinion that this was the only right which accrued or had been acquired prior to the effective date of the Age of Majority Act. I cannot in good conscience believe that the Legislature intended the above-quoted portion of the savings clause to give to the trial court carte blanche authority to rewrite the support provisions of a decree or judgment of divorce. To so hold, in my opinion, would be to confer rights upon children of divorced parents superior to those enjoyed by children whose parents were married and living together on the effective date of the act. I do not believe it can be intelligently argued that an 18 year old, after the effective date of the Age of Majority Act, would have a cause of action against his father for a college education. To my way of thinking, it is simply common sense that children of divorced parents should not be placed in such a preferred category; but this is what the majority does in this case. I would hold, under the language of the savings clause, that the trial court was without authority to modify the original child support provision providing for extended payments of $25 per week to the plaintiff for so long as any child continually attended an institution of higher education and learning beyond his or her 18th birthday and up to age 21; for in my opinion this is the only right which accrued or had been acquired prior to the act taking effect. I would reverse.