Brown v. Turnbloom

280 N.W.2d 473, 89 Mich. App. 162, 1979 Mich. App. LEXIS 2056

• Court: Michigan Court of Appeals
• Decided: March 20, 1979
• Docket: Docket 78-719
• Status: Published

Opinions

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 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.; 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 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 stiuation 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.

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 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.

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.