Smith v. Smith

447 N.W.2d 715, 433 Mich. 606

• Court: Michigan Supreme Court
• Decided: November 8, 1989
• Docket: 81910, (Calendar No. 1)
• Status: Published

Opinions

Riley, C.J.

The issue we must decide in this case is whether the Age of Majority Act¹ effectively rendered as null and void the "exceptional circumstances” clause of MCL 552.17a; MSA 25.97(1). Upon dissolution of a marriage, § 17a grants the court jurisdiction to require either parent to make payments for the support of each child until the age of eighteen years, and in the case of "exceptional circumstances,” support payments may be required after a child "attains that age.”

We find that the amendments of the child support and custody statutes enacted subsequent to the passage of the Age of Majority Act, which employ the restrictive term "minor child,” evidence a legislative intent to authorize support payments for the benefit of minor children only. Further, the history of appellate court interpretation of § 17a supports the conclusion that the duration of child support payments is limited by the age of majority statute. Therefore, we conclude that the exceptional-circumstances clause of § 17a is a legal nullity and that support payments may not be awarded beyond the age of majority, eighteen years.

Accordingly, we find that the Court of Appeals erred in authorizing postmajority child support payments upon a finding of "exceptional circumstances.” Thus, we reverse the decision of the Court of Appeals.

I. PACTS AND PROCEEDINGS

The Washtenaw Circuit Court granted Mary Carien Smith and Michael Clarke Smith a judgment of divorce on August 30, 1973. The parties had one child, Aimee, who suffers physical and mental deficiencies as a result of birth defects. These deficiencies have been diagnosed to be permanent.

In August of 1984, plaintiff filed a motion to increase child support and to extend support beyond Aimee’s eighteenth birthday. The trial court denied the motion, holding that it lacked authority to award postmajority support. However, the Court of Appeals authorized the trial court to award postmajority support and remanded the case to determine whether Aimee’s condition constituted an "exceptional circumstance.”² Defendant sought leave to appeal, which we granted on June 22, 1988.³_

II. ANALYSES

A. LEGISLATIVE HISTORY

The child support statute upon which the issue centers is MCL 552.17a; MSA 25.97(1). The pertinent part of § 17a provides:

The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age.

In the event of exceptional circumstances, Michigan courts have consistently authorized support payments beyond the prescribed statutory age, but limited such support to the age of majority, which was then twenty-one years. Titus v Titus, 311 Mich 434, 437; 18 NW2d 883 (1945); Johnson v Johnson, 346 Mich 418, 426; 78 NW2d 216 (1956).⁴ However, the subsequent amendment of the Age of Majority Act, which reduced the age of majority to eighteen years, put in question the legal validity of the exceptional-circumstances provision of § 17a.

We begin our analyses by looking at the first sentence of § 17a which provides: "The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter . . . MCL 552.17a; MSA 25.97(1) (emphasis added). Following this sentence, § 17a uses the word "child”⁵ five additional times. Webster’s Ninth New Collegiate Dictionary (1985) defines the term "child”:

2a: a young person esp. between infancy and youth; b: a childlike or childish person; c: a person not yet of age.

Given this commonly accepted definition of "child” and the use of the words "minor children” in the first sentence of § 17a, we are persuaded that the Legislature intended the word "child” in § 17a to apply exclusively to minor children.⁶

Moreover, it is important to note that at the time the Legislature enacted § 17a, the age of majority in Michigan was twenty-one. Thus, absent exceptional circumstances, § 17a statutorily limited support payments up to the time of a child’s eighteenth birthday, three years before the age of majority. It was this Court in Johnson, supra, that interpreted the exceptional-circumstances clause to allow support payments beyond a child’s eighteenth birthday, but not beyond the age of majority.

After MCL 722.52; MSA 25.244(52) reduced the age of majority to eighteen years, in our judgment, amendments of the child support and custody laws evidence the intention of the Legislature to leave intact the Johnson rationale.

MCL 552.15; MSA 25.95 governs the care, custody, and support of minor children during the pendency of an action to dissolve a marriage. Specifically, § 1 of the current version of this statute, 1985 PA 214,⁷ uses the term "minor children” three times; whereas, the preamendment version of § 1 referred only once to "minor children,” and once to "children.”⁸_

Similarly, MCL 552.16; MSA 25.96 governs the care, custody, and support of minor children after a divorce judgment. Again, the pertinent segment of the statute, § 16(1), refers only to "minor children.”⁹

There can be no dispute that §§ 15 through 17a of Michigan’s divorce laws, MCL 552.1 et seq.; MSA 25.81 et seq., address the issue of child custody and support pursuant to a divorce action. Statutes in pari materia should be construed together. Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948). Thus, § 17a, by its initial reference to "minor children,” coupled with §§ 15 and 16 which refer exclusively to "minor children,” evidence the intent of the Legislature to align the child support laws with the rationale that payments are to be limited by the age of majority, currently eighteen years.

Consistent with the legislative intent of §§ 15 through 17a is the 1980 amendment of the Child Custody Act.¹⁰ 1980 PA 161, § 1 amended § 7(1) of the Child Custody Act by deleting the "exceptional circumstances” clause. Now, pursuant to § 7(1), a circuit court has authority to award support payments only until a child becomes eighteen years of age. Reference to "exceptional circumstances” has been completely omitted.¹¹

Finally, 1972 PA 16 amended 1968 PA 293¹² for the specific purpose of reconciling the statute with the Age of Majority Act. 1972 PA 16, § 1 amended the definition of the term "minor” to "a person under the age of 18 years,” from "a person under the age of 21 years.” MCL 722.1(a); MSA 25.244(l)(a). The saving clause of this amendment, 1972 PA 16, § 2, preserves all rights and duties of a person incurred prior to January 1, 1972, "[a]s if [1971 PA 79] had not been passed.”¹³ 1972 PA 16 also amended § 4(l)(b) of the emancipation statute which now provides: "(1) An emancipation occurs by operation of law: (b) When a person reaches the age of 18 years.”¹⁴ In fact, throughout the entire emancipation statute, reference is only made to "a minor.” See MCL 722.4; MSA 25.244(4).¹⁵

The amendments of the Child Custody Act and the emancipation statute exemplify how the Legislature has acted to conform the laws governing the protection and support of children with the Age of Majority Act.¹⁶ Quoting from Kaimowitz, Legal emancipation of minors in Michigan, 19 Wayne L R 23, 24 (1972):

If a legislative body wishes, for whatever purpose, it can wave a magic wand and emancipate him [a minor] to suit its convenience. Though 21 usually is the dividing line between minority and majority, the age of majority in Michigan is now 18. The state seemingly can be as arbitrary as it pleases in raising or lowering the barrier for all or just some purposes.¹¹

While the Legislature has the ability to "waive a magic wand,” this Court is bound to interpret § 17a in accordance with the intent of the Legislature. Const 1963, art 3, § 2,¹⁷ and art 4, § l.¹⁸ The power to statutorily limit the duration of child support payments is within the exclusive discretion of the Legislature. Though nearly a century old, the holding of Detroit v Wayne Co Circuit Judge, 79 Mich 384, 387; 44 NW 622 (1890), is applicable. ("It is one of the necessary and fundamental rules of law that the judicial power cannot interfere with the legitimate discretion of any other department of government.”) See also Wayne Co Prosecutor v Wayne Co Bd of Comm’rs, 93 Mich App 114, 121; 286 NW2d 62 (1979) ("The judiciary will not interfere with the discretionary actions of the legislative bodies”).

The Legislature has taken affirmative action to amend the child support laws, the Child Custody Act, and the Emancipation of Minors Act. All of the amendments evidence a legislative intent to retain the longstanding rule that support payments are to be limited by the age of majority.¹⁹ It is the intent of the Legislature, supported by its affirmative actions, which we find persuasive.²⁰ The contention by the dissent that we are "relying on legislative silence,” post, p 652, is wholly unfounded and in disregard of the actions of the Legislature. When a legislature enacts or amends a statute, it must be presumed to have knowledge of existing statutes and laws. People v Rosecrants, 88 Mich App 667, 670; 278 NW2d 713 (1979). Therefore, we conclude that the exceptional-circumstances clause of MCL 552.17a; MSA 25.97(1) is legally void.²¹

We acknowledge that this conclusion is contrary to MCR 3.209(B)(1)(b), originally adopted by this Court in 1972 as GCR 1963, 729.2(1).²² However, this Court has said that court rules may take precedence over statutory language only in matters involving judicial rules of practice and procedure. See Perin v Peuler, 373 Mich 531; 130 NW2d 4 (1964). The child support provision of § 17a is a matter of substantive law and, as such, supersedes MCR 3.209(B)(1)(b).

Furthermore, because the court’s jurisdiction in a divorce proceeding is defined by statute, the court rule cannot expand jurisdiction to authorize child support beyond a child’s eighteenth birthday. Felcoski v Felcoski, 159 Mich App 762; 407 NW2d 11 (1987). Therefore, we hold that MCR 3.209(B)(1)(b) does not provide a court authority to award postmajority child support. Moreover, insofar as this court rule may interfere with any legislative act governing substantive law, the court rule is without legal effect.²³

While the dissent does not contradict the rule that substantive statutory language supplants a contradictory court rule, it does make the claim that MCR 3.209(B)(1)(b) "is a further indication that the appellate courts of this state have not clearly resolved this issue, and that, therefore, the Legislature cannot be held to have acquiesced in what the appellate courts of this state have not finally resolved.” Post, p 652.

Ironically, Justice Cavanagh participated in a Court of Appeals decision which addressed this precise issue, involving the same statute and the same court rule. In McNames v McNames, 93 Mich App 477, 480; 286 NW2d 892 (1979), the Court cited verbatim Price v Price, 51 Mich App 656, 660-661; 215 NW2d 756 (1974), which held:

"The problem arises when we attempt to insert the court rule in place of the statutory language. The Supreme Court itself has indicated that court rules may take precedence over statutory language only in matters involving judicial rules of practice and procedure. Perm v Peuler, 373 Mich 531; 130 NW2d 4 (1964). This being a matter of the substantive law, the legislative enactment must control. The trial court’s reliance on GCR 1963, 729.2(1) to justify an award of support to a child who has reached the age of majority contravenes the Legislature’s expressed intent in the statute enabling a circuit court to award any support at all, as interpreted by decisions of the Supreme Court. Until such time as the Legislature sees fit to settle the inconsistency between the support statute and the Age of Majority Act, we are bound to follow its mandate.” [Emphasis added.]

The correctness of this reasoning was not assailed by our Supreme Court when it reversed the result in Price v Price, 395 Mich 6; 232 NW2d 630 (1975).

Thus, the conclusion of the dissent is not only in conflict with the prior position of its author, it contravenes the history of Michigan jurisprudence. Notwithstanding the present matter before us and its progeny, no final Michigan appellate decision has sustained an award of postmajority child support.

B. JUDICIAL INTERPRETATION

This Court has consistently held that support payments may be required only until a child attains the age of majority. This principle was recognized over 120 years ago in Chaffee v Chaffee, 15 Mich 184, 190 (1867), when Justice Christiancy wrote:

The daughter is above the age of majority, and however desirable it might be that she should be provided for with the mother, I can discover no recognized principle upon which it can be done by a decree in this proceeding.[²⁴]

The "exceptional circumstances” clause was addressed when continued support was sought beyond the statutory age limit of seventeen years to allow a child to achieve a high school diploma. In interpreting 1940 CL 12739-1,²⁵ the precursor of today’s § 17a, this Court held that extended support for educational purposes did constitute an exceptional circumstance. However, it extended the support payments for only eighteen months beyond the child’s seventeenth birthday, well before he reached the age of majority, twenty-one years. Barry v Barry, 291 Mich 666; 289 NW 397 (1939). Similarly, the Court held that educational pursuit constituted an exceptional circumstance in Titus, supra. Again, the support was specifically limited by the age of majority: "[T]he allowance must thereupon cease, and shall cease in any case upon [the child’s] arrival at majority . . . .” In Rybinski v Rybinski, 333 Mich 592; 53 NW2d 386 (1952), the Court once more held that support could not be ordered after the child had reached her majority.

Barry, Titus, and Rybinski all provided the framework for the Johnson decision, which prohibited required support beyond a child’s majority age even though exceptional circumstances existed.²⁶

After the Age of Majority Act became effective, this Court and the Court of Appeals continued to follow the same line of reasoning, which effectively negated the legal authority of the exceptional-circumstances clause of § 17a._

This issue was addressed in Price v Price, 51 Mich App 656; 215 NW2d 756 (1974), rev’d on other grounds 395 Mich 6; 232 NW2d 630 (1975), when the Court of Appeals held:

The clear intent of the Legislature, as expressed in this enactment and as authoritatively interpreted by decisions of the Michigan Supreme Court, indicates that there is no right to receive support payments after the age of majority is reached. The statute explicitly provides that the above jurisdiction is "relative to the minor children” of the parties. (Emphasis supplied.) The succeeding clauses allowing support for children attaining the age of 18 must be read, then, in the context of minor children. When the statute was enacted, it was possible for a minor child to be over the age of 18, since the age of majority was 21. [51 Mich App 658.]

Additionally, the Price Court said:

Since the Legislature has made an 18-year-old an adult for all purposes whatsoever, notwithstanding any law to the contrary, support cannot properly be awarded to a child who has reached the age of 18. [51 Mich App 660. Emphasis in original.]

In reviewing the Price decision, the Court chose not to invalidate the lower court’s reasoning, but rather to reverse on the basis of the saving clause of the Age of Majority Act.²⁷ In Price, the rights of the child accrued prior to the effective date of MCL 722.52; MSA 25.244(52). Therefore, the eighteen-year age of majority was not applicable, and the twenty-one-year age of majority did apply. Accordingly, this Court granted support payments until the child attained the applicable majority age, twenty-one years.

Though the courts have never dissented from the rule that the age of majority limits the duration of child-support payments, this saving clause has been used, when applicable, to provide for support up to a child’s twenty-first birthday. See Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976); Milbrand v Milbrand, 66 Mich App 730; 239 NW2d 730 (1976); Barbier v Barbier, 45 Mich App 402; 206 NW2d 464 (1973).

The Johnson and Price decisions provided the foundation for a series of cases which, absent an express agreement to the contrary, negate the obligation of a parent to provide child support payments beyond the age of majority, eighteen years. See Arndt v Kasem, 135 Mich App 252; 353 NW2d 497 (1984), Boyd v Boyd, 116 Mich App 774; 323 NW2d 553 (1982), Sumerix v Sumerix, 106 Mich App 7; 307 NW2d 727 (1981), McNames v McNames, supra, and Allen v Allen, 63 Mich App 475; 235 NW2d 22 (1975).²⁸_

The only indication that appears contrary to this significant body of case law is in footnote 5 of Price.29 However, this footnote has no value as a legal precedent and was identified as merely "dicta” by the Court of Appeals. Parrish v Parrish, 138 Mich App 546, 551; 361 NW2d 366 (1984) (parents have no obligation to support their adult children).

While this footnote does provide that "[t]he Age of Majority Act does not purport to deprive persons between the ages of 18 and 21 of any rights theretofore enjoyed by them . . . ,” the saving clause of the Age of Majority Act³⁰ specifically provides that rights "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 . . . MCL 722.54; MSA 25.244(54). Although the Age of Majority Act did not purport to deprive anyone of existing rights, these rights were nonetheless restricted by law existing prior to January 1, 1972. The law prior to January 1, 1972, authorized support payments only until a child attained the age of majority. Johnson, supra. Therefore, the inference of the footnote is frustrated by the same legal authority from which it appears to have been borne.³¹

Again, we note that since the release of the Price decision by this Court fourteen years ago, the rationale behind this footnote, and the inference implicit therein, has never been persuasive in any proceeding before a Michigan appellate court save in the matter before us today and its progeny.

The dissent asserts that our decision is based "[primarily in reliance on this Court’s decision in Johnson . . . .” Post, pp 643-644. The dissent goes on to claim that we have employed a "dubious analysis of legislative intent . . . that is clearly contrary to express statutory language . . . .” Post, p 658. Finally, it argues that we are attempting to "reduce [our] responsibility for this result by stating that the result reflects the will of the Legislature and that to hold otherwise would be a usurpation of legislative power.” Id.

Not so. What we have done by our decision today is recognize that the overriding responsibility of this Court is to act within the limits of its authority as expressed in the constitution of this state.³² The authority to determine the duration of child support payments is vested in the Legislature, not this Court. See Kaimowitz, ante, p 617. The dissent fails to acknowledge, or even to address, the fact that the amendments of §§ 15-17a of the child support laws enacted by the Legislature after the reduction of the age of majority have resulted in an increased use of the limiting word "minor.” See ante, pp 611-619.

Furthermore, the dissent, in mischaracterizing our opinion as being based "primarily in reliance” on Johnson, totally disregards Michigan’s history of judicial interpretation regarding the duration of child support payments. Our decision is based on the express actions of the Legislature and on an analysis of how legislative action has been interpreted by our appellate courts. While persuasive, Johnson is but one instance in a forty-five-year survey of Michigan case law. See ante, pp 621-626.

C. OTHER JURISDICTIONS

A review of other jurisdictions reveals that states which provide for postmajority support can be broken down into two categories: (1) those which have enacted specific statutory language, and (2) those in which courts have interpreted the support statute to include adult children when the statute merely refers to "child,” as opposed to the term "minor child.”

In the first category, the child support statute of each state provides express jurisdiction. Examples of states with express jurisdiction include Illinois, Indiana, Iowa, Oregon, and Washington.

The Illinois Marriage & Dissolution Act provides "relevant factors” for a court to consider when determining a reasonable amount of support that "either or both parents owing a duty of support to a child of the marriage” must pay.³³ One of the factors, § 505(2)(d) is "the physical and emotional condition of the child . . . .” The Illinois statute does not limit the duration of child support by use of the term "minor child.”

Similarly, the Indiana dissolution of marriage laws include the "physical or mental condition of the child and his educational needs”³⁴ as relevant factors to consider in awarding child support.³⁵ Indiana takes one step further to add the provision that the "duty to support a child under this chapter ceases when the child reaches his twenty-first (21st) birthday unless ... (2) the child is incapacitated in which case the child support continues during the incapacity or until further order of the court.”³⁶

Iowa has provided for postmajority child support in its statutory definition of the word "support.”³⁷ Here, support includes obligations "for a child who is between the ages of eighteen and twenty-two years who is regularly attending an accredited school . . . leading to high school diploma or its equivalent . . . vocational-technical training ... a full-time student in a college, university, or area school. . or a child of any age who is dependent on the parties to the dissolution proceedings because of physical or mental disability” (Emphasis added.)³⁸

Prior to lowering its age of majority from twenty-one to eighteen years in 1971, Washington recognized only a duty to provide support for minor children.³⁹ However, Washington revised its Divorce Act in 1973. The Dissolution of Marriage Act of 1973 was amended to provide, "the court may order either or both parents owing a duty of support to any child of the marriage dependent upon either or both spouses to pay an amount reasonable or necessary for his support.”⁴⁰ In Childers v Childers, 89 Wash 2d 592, 597; 575 P2d 201 (1978), the Washington Supreme Court held, "[w]e construe the dissolution act as basing any support obligation on dependency, not minority, and ending the obligation at emancipation, not majority.” One of the factors the court found persuasive was the fact that the Washington Legislature removed all reference to the term "minor” when it revised the dissolution act in 1973. Childers at 596. Washington courts continue to cite Childers as authority for the award of postminority child support. See In re Marriage of Nielsen, 52 Wash App 56; 757 P2d 537 (1988).

In the second category, state courts have relied on the lack of restrictive language in the child support statutes for their decisions. The fact that the word "minor” did not appear before the word "child” in the statute was interpreted as to allow a court jurisdiction to award postmajority child support. Examples of these states include New Hampshire, New Jersey, New York, and Pennsylvania.⁴¹

However, in the State of New Hampshire, after its supreme court held that the statute did not preclude postmajority child support,⁴² its legislature amended the statute to expressly limit support until a child reaches the age of eighteen. Yet, the legislature added a provision to award postmajority support for handicapped children: "If the order involves a handicapped child, the court shall specify the duration of the order, which may be beyond the time when the child reaches the age of 18.”⁴³

Our legislative analysis and case-law review make it evident that the factors which have led to the award of postmajority child support in other jurisdictions do not exist in the present Michigan statute. A thorough analysis of the cases cited by the dissent serves only to buttress this conclusion.

The dissent cites Ex parte Brewington, 445 So 2d 294 (Ala, 1983), wherein the Alabama Supreme Court held that the Alabama child support laws should not be interpreted as limiting support only to "minor” children. The primary reason for the decision was the fact that the Alabama child support laws did not use the word "minor” before the word "children.” Therefore, the application of the Brewington court reasoning to the Michigan child support laws, which employ the word "minor,” leads to a result consistent with our opinion. Thus, Alabama falls under the category of states whose courts have relied on the lack of restrictive language in their child support statutes. See ante, p 630.

The dissent quotes Koltay v Koltay, 667 P2d 1374 (Colo, 1983), in which the Colorado Supreme Court interpreted that state’s child support law. The Colorado law, based on the Uniform Dissolution of Marriage Act, provides for child support which is to terminate upon a child’s "emancipation.” The court held that a physically or mentally disabled child who is incapable of self-support is not emancipated. However, the Koltay court employed a review of the history of Colorado’s dissolution of marriage legislation that is similar to the legislative analysis we have employed. See ante, pp 611-619. The Colorado Supreme Court found persuasive the fact that in 1958 the Colorado Legislature amended its dissolution of marriage legislation to remove the word "minor,” and again enacted new legislation in 1971 when it replaced the Colorado divorce statute with the Uniform Dissolution of Marriage Act.

The current Colorado statute, interpreted by the Koltay court, authorized support for a " 'child of the marriage’ after considering several factors, including the . . . physical and emotional condition [of the child].” Koltay at 1377. Therefore, Colorado falls under the category of jurisdictions that provide specific statutory language which authorizes postmajority child support. See ante, pp 628-630.

Finally, the dissent cites cases from the District of Columbia Court of Appeals⁴⁴ and from the Supreme Court of Ohio.⁴⁵ However, both of these cases are based on the absence of any statutory provision contrary to postmajority child support.⁴⁶ As amply demonstrated by this opinion, Michigan’s statutory provisions are expressly contrary to the award of postmajority child support.

Section 17a does contain the limiting language of "minor child.” Moreover, amendments of §§ 15-16 of the child support statute that occurred after the change of the majority act have only increased the use of this restrictive language. As one commentator has noted, "where statutes limit support orders to minors, only a legislative change can remove the obstruction.”⁴⁷ As inequitable as it may appear, Michigan remains in the majority of states that do not provide postmajority child support.⁴⁸

III. CONCLUSION

We have considered the legislative amendments of the child support statutes and the voluminous case law regarding the issue of postmajority child support. In weighing these factors against the Price footnote, we conclude that current Michigan law does not provide for postmajority child support.

In Price, this Court reiterated the words of the Court of Appeals Price decision: "[The Court of Appeals] sent a veiled message to the Legislature to 'settle the inconsistency between the support statute [§ 17a] and the Age of Majority Act.’ ” 395 Mich 9. The Legislature has declined the invitation this Court extended fourteen years ago in Price. We urge the Legislature to reconsider the child support laws in order to align them with the laws of those states that have expressly provided for postmajority child support. For, as desirable as it may be, we are restricted by the constitution of our state from reforming the moral obligation of a divorced parent of an adult child into that of a legal obligation.

The inescapable conclusion to be drawn is that the Legislature has acquiesced in the judicial construction given § 17a pursuant to the passage of the Age of Majority Act. Therefore, we hold that the Age of Majority Act renders nugatory the exceptional-circumstances provision of § 17a. Accordingly, we reverse the decision of the Court of Appeals.

Griffin, J., concurred with Riley, C.J.

1 MCL 722.51 et seq.; MSA 25.244(51) et seq., effective January 1, 1972.

2 163 Mich App 423; 414 NW2d 906 (1987).

3 430 Mich 890 (1988).

4 The Titus Court interpreted 1939 PA 255, which provided:

The court shall have jurisdiction in making such order or decree relative to the minor children of such parties as authorized in this chapter to award custody thereof to one of the parties or a third person until such children attain the age of 17 years and may require the husband to pay such allowance as may be deemed proper for their support until they respectively attain that age and may in its discretion in case of exceptional circumstances requiring the same, require payment of such allowance for any such child after he attains that age.

1939 PA 255 was then amended by 1954 PA 2 (interpreted by the Johnson Court). Finally, the current version of § 17a is a result of 1970 PA 182.

Part b of this opinion reviews a history of Michigan appellate court decisions which require a parent to provide support payments under § 17a only until a child attains the age of majority.

5 MCL 722.22(a); MSA 25.312(2)(a) defines "child”: " 'Child’ means minor child and children.”

6 We agree with the dicta provided in State v Stevens, 161 Ohio 432, 435; 119 NE2d 616 (1954), which offered: "The word 'children’ is employed frequently to indicate only persons of immature years, the terms 'son’ and 'daughter’ are not used in this narrow connotation.”

7 Section 15(1) provides:

After the filing of a complaint in an action to annul a marriage or for a divorce or separate maintenance, on the motion of either party or the friend of the court, or on the court’s own motion, the court may enter such orders concerning the care, custody, and support of the minor children of the parties during the pendency of the action as the court considers proper and necessary. For the purposes of this section, "support” may include payment of the expenses of medical, dental, and other health care, child care expenses, and educational expenses. If a support order is entered, the court shall require that 1 or both parents shall obtain or maintain any health care coverage that is available to them at a reasonable cost, as a benefit of employment, for the benefit of the minor children of the parties. If a parent is self-employed and maintains health care coverage, the court shall require the parent to obtain or maintain dependent coverage for the benefit of the minor children of the parties, if available at a reasonable cost. [Emphasis added.]

8 The pertinent part of the preamendment version of MCL 552.15; MSA 25.95 adopted before the Age of Majority Act, provided:

The court may, in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such suit, as shall be deemed proper and necessary, and for the benefit of the children .... [Emphasis added.]

9 1985 PA 214, § 1 amended both MCL 552.15; MSA 25.95 and MCL 552.16; MSA 25.96. Specifically, § 16 provides:

Upon annulling a marriage or entering a judgment of divorce or separate maintenance, the court may enter such orders as it considers just and proper concerning the care, custody, and support of the minor children of the parties. The court may require either parent to file a bond with 1 or more sufficient sureties, in a sum to be fixed by the court, guaranteeing payment of the support ordered in the judgment. For the purposes of this section, "support” may include payment of the expenses of medical, dental, and other health care, child care expenses, and educational expenses. The judgment shall require that 1 or both parents shall obtain or maintain any health care coverage that is available to them at a reasonable cost, as a benefit of employment, for the benefit of the minor children of the parties. If a parent is self-employed and maintains health care coverage, the court shall require the parent to obtain or maintain dependent coverage for the benefit of the minor children of the parties, if available at a reasonable cost. [Emphasis added.]

10 MCL 722.21 et seq.; MSA 25.312(1) et seq.

11 The specific sections of § 7(1) provide:

(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. The court may require that support payments shall be made through the friend of the court or clerk of the court.

(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. [MCL 722.27(1); MSA 25.312(7X1).]

12 MCL 722.1; MSA 25.244(1). This statute, as it appears in the Michigan Compiled Laws, is editorially entitled: "Status and Emancipation of Minors; Rights of Parents.”

13 The full text of the saving clause, 1972 PA 16, § 2 provides:

This act does not impair or affect any act done, offense committed, or right accruing, accrued, or acquired, or liability, penalty, forfeiture or punishment incurred prior to January 1, 1972, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if Act No. 79 of the Public Acts of 1971, being sections 722.51 to 722.55 of the Compiled Laws of 1948 had not been passed. Proceedings pending at the effective date of Act No. 79 of the Public Acts of 1971, and proceedings instituted thereafter for any act, offense committed, right accruing, accrued, or acquired, or liability, penalty, forfeiture or punishment incurred before the effective date of Act No. 79 of the Public Acts of 1971 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.

14 As a result of 1988 PA 403, this language now appears as MCL 722.4(2)(b); MSA 25.244(4)(2)(b).

15 The dissent points to the Family Support Act, MCL 552.451 et seq.; MSA 25.222(1) et seq., as "an indication of the Legislature’s intention to retain, not to repeal, provisions authorizing the courts to require the payment of postmajority support in certain circumstances.” Post, p 654. However, § 1 of the act provides:

Any married parent who has a minor child or children living with him or her and who is living separate and away from his or her spouse who is the noncustodial parent of the child or children, and who is refused financial assistance by the noncustodial parent to provide necessary shelter, food, care, and clothing for the child or children, if the spouse is of sufficient financial ability to provide such assistance, may complain to the circuit court for the county where either parent resides for an order for support for himself or herself and the minor child or children. The proceedings shall be commenced by the filing of a complaint verified by the petitioner and by issuance of a summons which shall be personally served upon the noncustodial parent of the children and spouse of the petitioner. A complaint shall not be ñled nor shall any summons issue if divorce or separate maintenance proceedings are then pending between the petitioner and his or her spouse. [Emphasis added.]

Thus, the Family Support Act is specifically directed toward married parents. Relief under this act is expressly precluded when the parents are divorced. In fact, the argument that the Family Support Act authorizes postmajority child support to the child of divorced parents was rejected by Justice Cavanagh when he participated in Sumerix v Sumerix, 106 Mich App 7, 9-10; 307 NW2d 727 (1981). Specifically, Sumerix held:

It does not appear to us that the Family Support Act is even applicable to proceedings to modify a judgment of divorce. The act appears to be applicable only where the marriage is still legally intact. Section 1 of the act, MCL 552.451; MSA 25.222(1), provides that "[n]o complaint shall be filed nor shall any summons issue if divorce or separate maintenance proceedings are then pending between the petitioner and her husband.” Since the parties in the present case were divorced in December, 1969, MCL 552.17a; MSA 25.97(1) is the child support statute applicable to this case. .

We thus ñnd defendant’s reliance on the Family Support Act misplaced because the statute is inapposite. [Emphasis added.]

As such, we conclude that the Family Support Act is not in pari materia with § 17a. Therefore, the dissent’s reliance upon it is erroneous.

11 "It is impossible for any person to fix the exact time when a child is capable of protecting itself. The legislative judgment in regard to the proper age at which such regulations shall become applicable to the child cannot be interfered with by the courts.” In re Weber, 149 Cal 392, 395; 86 P 809 (1906).

16 MCL 722.4(l)(b); MSA 25.244(4)(l)(b).

17 Article 3, § 2 provides:

The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

18 Article 4, § 1 provides:

The legislative power of the State of Michigan is vested in a senate and a house of representatives.

19 See part b of this opinion.

20 Ten years ago, Justice Cavanagh agreed that this was, in fact, the intent of the Legislature. See the emphasized language in the text below, post, pp 620-621, quoting McNames v McNames, 93 Mich App 477, 480; 286 NW2d 892 (1979).

21 This holding is limited to the issue whether a court may require postmajority child support payments pursuant to § 17a. We note that support for an adult child may be ordered pursuant to the Michigan poor law, MCL 401.1 et seq.; MSA 16.12Í et seq. Specifically, § 6 provides:

If it shall appear that any such relative is unable wholly to maintain such poor person, but is able to contribute towards his support, the court may, in its discretion, direct 2 or more relatives of different degrees to maintain such poor person, and shall prescribe the proportion which each shall contribute for that purpose; and if it shall appear that the relatives liable as aforesaid are not of sufficient ability wholly to maintain such poor person, but are able to contribute something therefor, the court shall direct the sum, in proportion to their ability, which such relatives shall severally pay weekly or monthly for that purpose.

The dissent correctly points out that parental support can be required for disabled adult children under the Michigan poor law, post, pp 654-655, thus revealing the internal inconsistency of the dissenting opinion and undercutting its claim that our decision places the financial responsibility "solely on the state and on custodial parents.” Post, p 641.

22 (1) A support order or final judgment must

(b) provide for payment for a child until a child reaches the age of majority or graduates from high school, whichever is later, or, in exceptional circumstances, until the further order of the court.

23 See Levin & Amsterdam, Legislative control over judicial rule-making: A problem in constitutional revision, 107 U Pa LR 1, 14 (1958), where the authors declare: "Nothing could be clearer than the fact that courts in the exercise of the rule-making power have no competence to promulgate rules governing substantive law.”

24 Justice Cooley concurred in this opinion.

25 Although this act was approved June 15, 1939, it was not given immediate effect.

26 As indicated above, Johnson was the first case in which the Court interpreted § 17a, together with the age of majority.

27 Specifically, this clause provides:

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 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. [MCL 722.54; MSA 25.244(54).]

28 In writing for the dissent, Justice Cavanagh states, "I find nothing in this provision [Age of Majority Act] to indicate that the Legislature intended to explicitly repeal the exceptional-circumstances clause of § 17a.” Post, p 647. We note that this is in conflict with several Court of Appeals cases in which Justice Cavanagh participated. See Boyd, supra (absent an express agreement between the parties to provide for support beyond the child’s eighteenth birthday, the Age of Majority Act precludes such a result), and Sumerix, supra (the Age of Majority Act negates any obligation for support beyond age eighteen absent a reservation in the original divorce judgment of the right to extend support in the future).

Thus, we read n 19 of the dissent as Justice Cavanagh’s acknowledgment that he has reversed the position he took in Boyd, Sumerix, and McNames.

29 395 Mich 11, n 5, provides:

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 Age of Majority Act does not purport to deprive persons between the ages of 18 and 21 of any rights theretofore enjoyed by them, but instead grants to persons of 18 the rights and legal capacities formerly withheld until they were 21. Since a college education has long come within the purview of "exceptional circumstances” recognized by the support statute, Johnson v Johnson, 346 Mich 418, 426; 78 NW2d 216 (1956), it would appear that such an order ought to be entirely proper for the period between the ages of 18 and 21 years. Further, to interpret the two statutes otherwise would render nugatory the entire provision concerning "exceptional circumstances” in the support statute.

30 See n 26.

31 The dissent cites with approval Price, 395 Mich 11, n 5, " 'Age of Majority Act does not purport to deprive persons between the ages of 18 and 21 of any rights theretofore enjoyed by them Post, p 647. However, it fails to acknowledge that the right to child support "theretofore enjoyed” was, in fact, limited by the age of majority. Thus, the footnote does not support the argument for postmajority child support. After observing that this Court’s Price decision was based on the saving provision of the Age of Majority Act, the dissent again cites footnote 5 for the proposition that "[although the Court in Price did not directly resolve the issue presented here, it stated that the two provisions [Age of Majority Act and § 17a] should be read so as to avoid rendering nugatory the exceptional-circumstances provision.” Post, p 649. However, it is interesting to note that had the Court chosen to read the exceptional-circumstances clause as providing for postmajority support, it could have provided the child with support for the full four year college curriculum. Yet instead, it resolved the matter pursuant to the saving provision, thereby limiting college support to three years (at the relevant majority age of twenty-one years, the child would have only completed three years of college).

32 See ns 17,18.

33 Ill Ann Stat, ch 40, ¶ 505.

34 A 1983 amendment of the Oregon child support statute employs similar language. See Or Rev Stat, § 107.105(c)(E).

35 Ind Code, § 31-l-11.5-12(a)(3).

36 Ind Code, § 31-l-11.5-12(d)(2).

37 Iowa Code Ann, § 598.1(2).

38 Id.

39 See Note, Domestic relations — post-minority child support in dissolution proceedings — Childers v Childers, 89 [Wash] 2d 592; 575 P2d 201 (1978), 54 Wash L R 459 (1979).

40 Wash Rev Code Ann, §26.09.100. This statute has subsequently been amended to provide, "the court may order either or both parents owing a duty of support to any child of the marriage dependent upon either or both spouses to pay an amount determined pursuant to the schedule adopted under [§] 26.19.040.”

The schedule adopted under § 26.19.040(2) includes such factors as, "ft)) [appropriate adjustments for significant changes in child rearing costs at different age levels; . . . (d) [provisions for health care coverage and, when needed, child care payments . . . .” Finally, §26.19.040 calls for a review of the schedule and any proposed changes "as needed each even-numbered year.”

41 See Horan, Postminority support for college education — A legally enforceable obligation in divorce proceedings? 20 Fam L Q 589 (1987).

42 French v French, 117 NH 696; 378 A2d 1127 (1977).

43 NH Rev Stat Ann, §458:35-c. Also, the State of Alaska, which previously provided for postmajority child support, no longer maintains this view. See Dowling v Dowling, 679 P2d 480 (Alas, 1984) (no postmajority educational support).

44 Nelson v Nelson, 548 A2d 109 (DC App, 1988).

45 Castle v Castle, 15 Ohio St 3d 279; 473 NE2d 803 (1984).

46 As with Brewington, supra, the District of Columbia and Ohio would fall under the category of jurisdictions whose courts have relied on a lack of restrictive statutory language.

47 Washburn, Post-majority support: Oh dad, poor dad, 44 Temp L Q 319, 331 (1971).

48 It would be misleading to say that there is a national trend toward permitting postminority support. While some states are indeed passing legislation toward that end, and some courts are interpreting ambiguous statutes in such a way to permit post-minority support for education, it remains a minority view. [Horan, n 41 supra, p 602.]