Opinion
Docket Nos. 138948, 140385.
Submitted March 4, 1993, at Grand Rapids.
Decided July 6, 1993, at 9:10 A.M.
Terry R. Ekdahl, for Marlin J. Godlove.
Shirley Dorfman, in propria persona.
Before: McDONALD, P.J., and REILLY and FITZGERALD, JJ.
Both parties appeal from an April 15, 1991, order regarding defendant's child support obligations. We affirm in part and reverse in part.
Pursuant to the parties' 1983 judgment of divorce, defendant was ordered to pay monthly child support of $250 ($125 for each of his two minor children) and to maintain medical, hospitalization, and dental insurance adequate to protect the minor children. On or about October 28, 1983, defendant voluntarily began making monthly payments of $300. The friend of the court recorded the excess payments as credits to defendant's account. On November 8, 1988, plaintiff filed a motion to modify the judgment of divorce and increase defendant's support obligation. Following a hearing, the court entered a February 13, 1989, order increasing defendant's child support obligation to $63.50 a week for each child. The order provided the child support was retroactive to November 8, 1988, the date plaintiff filed her motion, and that all arrearages and credits were to be preserved.
After entry of the order, defendant began paying child support of $425 a month rather than the court-ordered amount of approximately $550 a month. Payment of the reduced amount gradually reduced the credit previously recorded in defendant's account. On September 26, 1989, following this Court's release of Pellar v Pellar, 178 Mich. App. 29; 443 N.W.2d 427 (1989), plaintiff moved to prevent defendant from "crediting" his current support obligation with prior overpayments. The Pellar opinion stated that voluntary overpayments of child support could not be applied to create a credit against or diminish the amount of the obligor's court-ordered support obligation. Before there was a decision on plaintiff's motion, defendant petitioned the court to obtain a $2,646 credit toward his child support obligation for monies he paid in orthodontic expenses. Both motions were heard on January 9, 1991. The court held defendant was not entitled to a credit for his voluntary overpayment of child support, finding the parties did not agree on the effect of the overpayments and that there were no equitable considerations present to merit a different result. The court established November 8, 1988, the date plaintiff filed her motion to increase support, as the date from which defendant could not credit his account with voluntary overpayments. The court also held defendant was not entitled to credit for monies expended on orthodontic bills because the language in the judgment of divorce was broad enough to include the requirement that defendant provide adequate insurance to cover the orthodontic services at issue. Although the application of these findings placed defendant in arrears on his child support obligation, the court ruled plaintiff could not enforce the arrearage until defendant's support obligation for the younger child terminated. The trial court's holdings were eventually embodied in the April 15, 1991, order from which both parties now appeal.
On appeal, defendant first contends the court erred in establishing November 8, 1988, as the date from which defendant's overpayments could not be used to offset his current support obligation. We agree.
Pellar, a case of first impression, was not decided until July 5, 1989. Before Pellar's release, overpayments of child support were regularly treated as prepayments or credits to current support obligations. Retroactive application of the decision would have a severe effect on friend of the court offices responsible for maintaining obligors' support accounts, as well as on individual obligors who may have managed their financial affairs in substantial reliance on the practice of prepaying their support obligations. We therefore afford the prohibition against prepaying support obligations contained in Pellar prospective application. Accordingly, we find the instant trial court erred in calculating defendant's arrearage on the basis of a prepayment cutoff date of November 8, 1988, rather than July 5, 1989, the date Pellar was decided. On remand, defendant's arrearage should be recalculated utilizing the later date.
We find no merit to defendant's remaining claim that his support obligation should be reduced by the amount he paid for certain orthodontic services provided to his younger child. The trial court's findings regarding this issue are adequately supported by the record, and defendant has failed to provide any authority or adequate argument to support his position. In re Toler, 193 Mich. App. 474; 484 N.W.2d 672 (1992).
Plaintiff raises one issue on appeal. Plaintiff contends the court erred in ordering that action on defendant's arrearages be held in abeyance until defendant's support obligation for the younger child terminated. We agree.
Although it is obvious the court was attempting to temper the harsh effect of the "Pellar" rule to the facts of this case, the court provided no authority or reasoning to support the imposition of such a unique prohibition. We find the court's prohibition against the enforcement of defendant's arrearage to be contrary to the policies underlying a parent's child support obligation as set forth in Pellar, supra. We therefore reverse that portion of the April 15, 1991, order that prevents plaintiff from instituting action upon defendant's arrearage. We also remand for redetermination of the amount of defendant's arrearage as previously set forth in this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
REILLY, J., concurred.
I disagree with the majority's position because I believe Pellar v Pellar, 178 Mich. App. 29; 443 N.W.2d 427 (1989), was wrongly decided. In that case, this Court held that voluntary child support overpayments do not create a credit against the obligor's subsequent court-ordered obligations. In imposing that rule, this Court sought to prevent obligors from building up a substantial credit and then suddenly refusing to make subsequent scheduled payments contrary to the custodial parent's expectations. The rationale for denying a credit in such instances is to insure that the minor children receive "regular, uninterrupted income. . . ." Id. at 34.
However, where, as in Pellar and also in this case, the support payments are made to the friend of the court, there is no risk of interruption of support payments to the custodial parent should the obligor unilaterally cease making scheduled payments. If the obligor has made previous payments in excess of the court-ordered obligation, the friend of the court would, nonetheless, continue to pay the custodial parent only the scheduled amounts as ordered by the court, with the remainder held in escrow. Thus, the custodial parent would continue to receive regularly scheduled payments from the friend of the court until the surplus was exhausted.
In my view, conscientious and responsible fathers who pay their child support in advance should be commended, not penalized. Furthermore, considering the sophisticated accounting technology in use by the friend of the court offices, the crediting of excess child support payments should not overburden their staffs. Accordingly, I would hold that plaintiff is entitled to a child support credit in the amount paid in excess of his court-ordered obligations.