WAYNE CNTY SOCIAL SERVICES DIRECTOR V BRENDA J YATES
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STATE OF MICHIGAN
COURT OF APPEALS
WAYNE COUNTY SOCIAL SERVICES
DIRECTOR, on behalf of DAVID ALLEN
YATES, JR., and TRACIE LYNN YATES,
FOR PUBLICATION
March 9, 2004
9:10 a.m.
Plaintiff-Appellee,
v
No. 244191
Wayne Circuit Court
LC No. 77-728900-DS
DAVID ALLEN YATES,
Defendant-Appellant,
Updated Copy
May 21, 2004
and
BRENDA J. YATES,
Defendant.
Before: Neff, P.J., and Wilder and Kelly, JJ.
NEFF, P.J.
Defendant David Allen Yates appeals by leave granted from a trial court order denying
his motion to extinguish child support arrearage on the asserted ground that the period of
limitations had run. We affirm.
I
The essential facts are not in dispute.1 David and Brenda Yates were divorced in 1977.
There were two minor children of the marriage, but the divorce judgment did not contain a
provision for child support. Because Brenda Yates, the custodial parent, was a recipient of Aid
to Dependent Children payments, the Wayne County Social Services Director filed a complaint
for support on behalf of the children, and an order was entered in 1978 requiring David Yates to
pay $60 a week in child support.
1
Plaintiff has not filed a brief on appeal.
-1-
Mr. Yates was anything but diligent in meeting his support obligations. In 1981, the
matter was referred to the Tax Intercept Program. Modest payments were received in 1979 and
1988. After David Yates relocated to Florida where he was self-employed, the Wayne County
friend of the court filed an action under the Revised Uniform Reciprocal Enforcement of Support
Act, MCL 780.151 et seq., which resulted in the entry of an order of support in the Circuit Court
for Lee County, Florida. The order entered on February 16, 1990, required Yates to pay $72.10 a
week on current support and arrearages. There was income withholding in 1990, 1996, 1997,
and 1998; the amounts ranged from $246 to $2,447.50. By April 2002, the arrearage totaled
$40,678.94.
The younger of the two children reached the age of eighteen in 1990. On April 23, 2002,
David Yates filed a motion to extinguish the child support arrearage on the basis that the period
of limitations had expired. The motion was denied and David Yates appealed.
II
Where no factual dispute exists, as in this case, whether a claim is barred by the statute of
limitations is a question of law that we review de novo. Pitsch v ESE Michigan, Inc, 233 Mich
App 578, 600; 593 NW2d 565 (1999).
III
There is no question that the applicable statute of limitations is MCL 600.5809(3),2 which
provides for a ten-year period of limitations in child support enforcement actions. See Alpena v
Friend of the Court ex rel Paul v Durecki, 195 Mich App 635, 637; 491 NW2d 864 (1992);
Ewing v Bolden, 194 Mich App 95, 99; 486 NW2d 96 (1992). Because the younger of the two
children turned eighteen in 1990, the period of limitations would have expired in 2000, before
David Yates filed his motion to extinguish the child support arrearage, unless the running of the
period was extended. Yates's income withholding payments in 1990, 1994, 1996, 1997, and
1998, were made after the children turned eighteen but before the limitations period expired.
The sole question in this case is whether the period of limitations was extended by
payments made before the limitations period ran.3 That is, can partial payment within the period
2
This statute was amended by 1996 PA 275, effective January 1, 1997. However, this Court has
held that the amendment does not apply retroactively and that the pertinent section of the statute
that applies is determined by the date the youngest child turned eighteen, in this case 1990,
before the statute was amended. Rzadkowolski v Pefley, 237 Mich App 405, 411; 603 NW2d
646 (1999).
3
Partial payment of a child support obligation made after the expiration of the period of
limitations is an acknowledgment of the debt and a waiver of the defense. Durecki, supra at 638.
-2-
of limitations—the income withholding payments made during the 1990s—operate to extend it?4
We hold that it can.
IV
Defendant argues that because he made no payment, voluntary or otherwise, after the
period of limitations expired, there is no authority to support an extension of the limitations
period. We disagree.
In Yeiter v Knights of St Casimir Aid Society, 461 Mich 493, 494; 607 NW2d 68 (2000),
the Supreme Court held that partial payments on a debt, "some of which were within the
limitation period," constituted a renewal of the promise to pay the amount owed. In Yeiter, the
debt was a series of loans that the defendant partially repaid. However, when the plaintiff sued
for the remainder, the defendant claimed that the statute of limitations barred recovery. In
rejecting the defendant's statute of limitations argument, the Court pointed out that some of the
payments were made less than six years before the filing of the complaint,5 but were
unaccompanied by any declaration or circumstance that would rebut the presumption that they
were "an acknowledgment of the full obligation." Id. at 500. In discussing the effect of partial
payments on the statute of limitations issue, the Court cited Miner v Lorman, 56 Mich 212, 216;
22 NW 265 (1885), for the proposition that such payment implies a renewal as of the date of the
payment of the promise to pay. More specifically, the Court held:
[A] partial payment restarts the running of the limitation period unless it is
accompanied by a declaration or circumstance that rebuts the implication that the
debtor by partial payment admits the full obligation. [Yeiter, supra at 497.]
Although Yeiter did not involve a child support arrearage, the holding is clear that any payment
on a debt, whether before or after the running of the period of limitations, acts to extend the
limitations period. The child support obligation in this case was a debt, and payments were made
pursuant to the income withholdings.
Plaintiff argues, in essence, that his payments were involuntary because they were made
pursuant to an income withholding order. The logical thrust of the argument is that the payments
could not represent a renewed promise to pay under these circumstances. This Court's holding in
Durecki, supra, rejects that very argument. In Durecki, the defendant argued that his payments
were involuntary because they were made to avoid being held in contempt of court. This Court
held that the claim of duress and therefore involuntariness was without record and legal support,
citing both Miner, supra, and Neilands v Wright, 134 Mich 77; 95 NW 997 (1903). See also
4
The lower court record contains no indication of whether any order of surcharge for late
support payments was entered pursuant to MCL 552.603a. Whether any such order was entered
and, if so, what the effect might be on the running of the period of limitations is not considered
here.
5
The applicable statute of limitations was MCL 600.5807(8), which relates to contract actions.
-3-
Morehead v Hoffdal, unpublished memorandum opinion of the Court of Appeals, issued
September 25, 1998, (Docket No. 201019), where a panel of this Court held that successful
actions to collect a child support judgment by income tax refund intercepts within the limitations
period waived the statute of limitations defense without regard to the consent of the paying party.
Accordingly, we hold that the income withholding payments in the 1990s amounted to
renewals of the full child support obligation and thereby served to extend the period of
limitations.6 We further hold that the nature of the payments did not render them involuntary.
The order denying defendant's motion to extinguish child support arrearage is affirmed.
/s/ Janet T. Neff
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
6
The right to interpose a statute of limitations defense is not a vested right. Bessmertnaja v
Schwager, 191 Mich App 151, 154; 477 NW2d 126 (1991).
-4-
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