Brown v. Turnbloom

89 Mich. App. 162 (1979) 280 N.W.2d 473 BROWN v. TURNBLOOM Docket No. 78-719. Michigan Court of Appeals. Decided March 20, 1979. Burton A. Hines, Jr., Wexford County Prosecuting Attorney, for plaintiff. Before: D.F. WALSH, P.J., and T.M. BURNS and C.J. BYRNS,[*] JJ. D.F. WALSH, P.J. Plaintiff Shirley Brown and defendant Richard Turnbloom were divorced in Wisconsin in 1975. Plaintiff was awarded custody of their four children. Because of the lack of personal service on defendant, the amount of child support was left open for determination at a later date. In 1977 plaintiff initiated proceedings in *166 Wisconsin under the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) to compel defendant, a Michigan resident, to pay reasonable child support. Plaintiff was then receiving $411 per month from the Portage County, Wisconsin, Department of Social Services for the support of the children. The Wisconsin court found that defendant owed a duty of support to his children and transmitted the necessary documents to Wexford County, Michigan. The Wexford County Fried of the Court recommended that defendant be ordered to pay $14 per week per child. The Wexford County circuit judge ordered defendant to pay $7 per week per child. At the Wexford County hearing on the URESA petition the judge, over the objection of the prosecuting attorney who represented plaintiff, heard testimony by defendant that he had not been allowed to visit with his children.[1] In ordering defendant to pay $7 per week per child, the judge noted that, in determining the amount of child support, he had considered the fact that defendant had not been allowed to visit with his children. The prosecutor's petition for reconsideration was denied. Plaintiff appeals. The issue presented for our determination here is this. In a URESA action where Michigan is the responding state, may the Michigan circuit judge, in determining the amount of support, take into consideration the alleged denial of the obligor's visitation rights? The purpose of URESA (MCL 780.151 et seq.; *167 MSA 25.225(1) et seq.) is "to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto". MCL 780.152; MSA 25.225(2). (Emphasis supplied.) To effectuate these purposes we hold that the circuit judge erred in considering the alleged denial of visitation rights in determining the amount of child support to be paid by defendant. We find persuasive the reasoning of the Florida court in Vecellio v Vecellio, 313 So 2d 61 (Fla App, 1975), where it was noted that URESA focuses on only one aspect of domestic relations — the duty of support. The act does not contemplate that the custodial parent come to the responding state to defend against claims arising from other domestic relations matters. Aggrieved noncustodial parents should return to the state of divorce to adjudicate other matters. Id. at 62. Accord, Grosse v Grosse, 347 So 2d 1099 (Fla App, 1977). In the following cases courts of various jurisdictions have held that the responding court is without subject matter jurisdiction over matters of visitation and may not condition payment of support on observance of visitation rights: Kline v Kline, 260 Ark 550; 542 SW2d 499 (1976), Pifer v Pifer, 31 NC App 486; 229 SE2d 700 (1976), Hoover v Hoover, ___ SC ___; 246 SE2d 179 (1978). In each case the reviewing court cited that portion of the act which provides, "Participation in any proceedings under this act shall not confer upon any court jurisdiction of any of the parties thereto in any other proceedings". MCL 780.172; MSA 25.225(22). In Robinson v Harris, 87 Mich App 69; 273 NW2d 108 (1978), the defendant father, a Michigan resident, challenged a court order requiring him to pay child support. The plaintiff mother had *168 been awarded custody of the parties' children following their divorce. Since the divorce, the children had become increasingly embittered toward defendant. There was no longer any possibility of a meaningful relationship between defendant and his children. The plaintiff was an Ohio resident and a URESA petition was filed in her name seeking child support payments from defendant. The following language of this Court is particularly relevant to the situation of the instant plaintiff, a welfare recipient: "The custodial parent, the mother in this case, is receiving aid from the State of Ohio for the support of her minor children. Under the Uniform Reciprocal Enforcement of Support Act, adopted in both Ohio and Michigan, the State of Ohio is entitled to reimbursement from a person liable under a proper order of support where the state has itself made support payments. MCL 780.159; MSA 25.225(9). Thus, the real party in interest on the side of the plaintiff is the State of Ohio. Whatever the decision of this Court, the named plaintiff will not be affected. To speak in terms of punishing the named plaintiff for her conduct regarding the children or of forcing compliance with court orders by withholding support misses the mark." Id. at 71. We adopt the view expressed in the foregoing cases. URESA makes no mention of visitation matters. Its scope is expressly limited to support. The act contemplates ex parte proceedings where only duties of support are adjudicated. It does not provide for adversary proceedings where other matters are to be decided. There is no mechanism for requiring the custodial parent to appear to answer allegations of the noncustodial parent as to the denial of visitation privileges. Adjudication of visitation matters is, therefore, best left to the state of divorce. *169 Our holding finds support in the history of Michigan's adoption of the Uniform Reciprocal Enforcement of Support Act. There have been two major versions of the act approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association — the original act, as adopted in 1950 and amended in 1952 and 1958, and the revised act of 1968. 9 ULA, Uniform Reciprocal Enforcement of Support Act, Historical Note, p 805. Michigan adopted most of the 1950 act and only the 1952 amendments. Id., General Statutory Notes, p 892. Of particular significance to the issue raised in the instant case was the Michigan Legislature's failure to adopt § 21 of the 1950 act as amended in 1958. That section provided that, if the complainant was absent from the responding state and the respondent presented evidence constituting a defense, the responding court was to continue the case for further hearing and submission of evidence by both parties. Id. at 922. See id. Commissioners' Prefatory Note (1958), p 886. Since the Michigan statute contains no provision suggesting that an adversary proceeding was contemplated by the Legislature, we are convinced that a streamlined process focusing solely on the issue of support was intended. The lack of due process protections for the absent custodial parent compels this conclusion. Although it has not been adopted in Michigan it is of interest to note that, with particular reference to visitation, the 1968 revised act expressly provides, in § 23, that "the determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court". Id. at 862. The comment of the commissioners with regard to this amendment suggests *170 that it was perhaps not intended to indicate a change in their original intent as to the scope of inquiry in URESA proceedings. According to the commissioners, the 1968 amendments, like previous amendments, were designed only "to plug loop holes and cure defects in the enforcement procedure". Id., Commissioners' Prefatory Note, p 806.[2] The Legislature failed to provide for adversary proceedings in URESA matters. We decline to engraft into Michigan's version of the act the due process protections which would be necessary before issues such as visitation could be fairly considered. Accordingly, we reverse the order setting the amount of child support and remand for further proceedings consistent with this opinion. No costs, a public question. T.M. BURNS, J., concurred. C.J. BYRNS, J. (dissenting). I must respectfully dissent from the decision of the majority because I believe, that in protecting the best interests of the children, the trial judge should have the same options open when the noncustodial parent is complaining of denial of visitation rights in a URESA action as he or she would have in proceedings based on a Michigan divorce order or judgment. This is a real problem frequently faced by circuit judges of this state especially considering the *171 frequency of divorce in a nation whose people are becoming more migratory. Children of broken homes have a natural right and need — sometimes more than those in homes with both parents — for the love, affection and companionship of both separated parents. Visitation is often more important to such a child than it may be to the noncustodial parent. In some cases visitation may be more important to a child's welfare than monetary support from the absent parent. Each divorce case involving children, each child involved in a divorce case, is different and matters affecting them must be decided individually where their best interests may be at issue. It is not wise or equitable to absolutely deny the trial judge in URESA cases the right, when he or she finds a need for child visitation, to fashion a suitable remedy (e.g., deny, suspend or reduce support, or hold the same in escrow with the clerk or friend of the court) in order to win for the child visitation with a parent. Presumably a trial judge, who each year has hundreds of divorce cases involving children on the docket, is skilled and experienced enough, where lack or loss of visitation is claimed in defense of a support obligation, to recognize the difference between a parent who is merely trying to avoid paying support and one who is sincerely concerned for the children. While it is important to protect the pecuniary rights of taxpayers, who my experience would indicate are more often than not supporting URESA children, it is also essential to protect the child's, as well as the parent's rights of visitation, and, in the appropriate case, to use a support order to encourage the absent custodial parent or the authorities in the petitioning state to give *172 visitation rights to the respondent parent or at least give serious consideration to the matter. I cannot make the differentiation between who the real complainant is in a URESA action a basis for decision as Robinson v Harris, 87 Mich App 69; 273 NW2d 108 (1978), appears to do. It does not seem to me that we should read into URESA a mandatory rule that it is the noncustodial but supporting parent who must always go to the other state to obtain enforcement of visitation rights which have been denied by the custodial parent. There are cases where the custodial parent is much more able to travel than the other parent. The judge in Michigan, if permitted to hear the facts of a denial of visitation claim, may determine that a denial, suspension, reduction or escrow of support money will best persuade the custodial parent to cooperate in respecting visitation for the other parent. If the real motivation to collect or enforce support in the demanding state is a social or public agency rather than the custodial parent, then it may be the one to either encourage the custodial parent to cooperate in visitation, or else to take action in a court having jurisdiction over such parent to compel visitation rights. Michigan recognizes in the enforcement of visitation rights granted in a Michigan judgment that as long as the child is not adversely affected, trial judges have the authority to suspend or modify child support obligations to enforce visitation rights. McLauchlin v McLauchlin, 372 Mich 275; 125 NW2d 867 (1964), Pronesti v Pronesti, 368 Mich 453; 118 NW2d 254 (1962), Myers v Myers, 143 Mich 32; 106 NW 402 (1906). To deny a Michigan-resident obligor-parent the same right to have a court enforce visitation rights by such use of support orders, just because the *173 matter before the court is a URESA petition rather than a Michigan judgment, creates two classes of citizens and is a denial of equal protection of the law. Such result also is contrary to MCL 780.158; MSA 25.225(8), which I interpret as requiring the duty of support to be decided in accordance with Michigan law. Where this issue of the authority of the responding court to consider visitation in URESA proceedings has arisen, some states have taken what to me is the better position, which is that a court can consider the issue and condition payment of support on observation of visitation rights. New Jersey v Morales, 35 Ohio App 2d 56; 299 NE2d 920 (1973), Porter v Porter, 25 Ohio St 2d 123; 267 NE2d 299 (1971), Chandler v Chandler, 109 NH 477; 256 A2d 157 (1969), Curry v Felix, 276 Minn 125; 149 NW2d 92 (1967), Daly v Daly, 39 NJ Super 117; 120 A2d 510 (1956), aff'd 21 NJ 599; 123 A2d 3 (1956). In leaving to the judge in a URESA proceeding the right to consider and in the appropriate case protect visitation rights by an appropriate support order, it is axiomatic that the best interest of the child is paramount. First among the questions to be asked is how the child's interest will be affected by the support order. Is the custodial parent unable to adequately provide for the child's needs absent support from the other parent? Is a public agency supporting the child, and, if so, can it be enlisted to help persuade the custodial parent to make visitation available? It is assumed that the judge, before using support as a vehicle for enforcement of visitation, has first been satisfied that the noncustodial parent is sincere; that he or she is a proper person with the necessary facilities for visitation; and that the *174 custodial parent is denying or abridging visitation without good cause. The judge should not hesitate to use the local friend of the court and prosecutor as well as any appropriate agency in the locale of the custodial parent to secure such information. If reasonable, the custodial parent should be asked to appear to give evidence, or, if possible, evidence can be supplied by deposition or interrogatories. It is also within the realm of possibility to request the petitioning court to hold a hearing on visitation and make its findings or recommendations. I recognize that what I recommend would mean more work for the trial courts than obtains if they are in the position to say that visitation complaints cannot be heard in URESA cases, but I believe our courts have a duty to the children involved, even though those children are located in another state. We also have a duty to the Michigan-resident parent who is being denied rights available to other residents not involved in a URESA action. I submit that, rather than to read the act as automatically denying the hearing and decision of any claim of abuse or denial of visitation rights in URESA cases, this Court in this case of first impression in Michigan should interpret the act as I do to permit the trial judge to consider such a claim and act in accordance with the best interests of the child as the judge would in any other case. In Chandler v Chandler, supra, the New Hampshire Supreme Court specifically found (as hopefully the appellate authority of this state will) that the provision of the act reading: "Participation in any proceeding under this chapter shall not confer upon any court jurisdiction of any of the parties thereto in any other proceeding" did not "preclude a court from reducing a support order until such *175 time as agreement may be reached by the parties as to reasonable rights of visitation". 109 NH at 479, 480. It seems to me that limiting URESA actions to consideration of support only, on grounds of ability to pay, can work harm to those most vitally involved, the children. I would affirm the trial court. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment. [1] Defendant's testimony was not entirely clear as to the reasons he was unable to visit with his children. At one point he indicated that he did not go to their home because the police were after him. He also testified that plaintiff did not cooperate with him with regard to visitation. For purposes of this appeal, we interpret defendant's testimony as indicating that plaintiff prevented him from visiting with the children. [2] Although there is some Michigan authority suggesting that support obligations and visitation rights are interrelated, see, e.g., McLauchlin v McLauchlin, 372 Mich 275; 125 NW2d 867 (1964), Pronesti v Pronesti, 368 Mich 453; 118 NW2d 254 (1962), the recent trend is contrary, see, Stevenson v Stevenson, 74 Mich App 656, 658, fn 1; 254 NW2d 337 (1977), Henshaw v Henshaw, 83 Mich App 68; 268 NW2d 289 (1978), Robinson v Harris, supra. In any event, the nature of a URESA proceeding is significantly dissimilar to that of an action involving enforcement of support obligations between parties divorced in Michigan and present at the Michigan enforcement proceedings.