DONNA L ADAMS V JAN ARNOLD LINDERMAN
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STATE OF MICHIGAN
COURT OF APPEALS
DONNA L. ADAMS,
FOR PUBLICATION
December 26, 2000
9:50 a.m.
Plaintiff-Appellant,
v
No. 217395
Van Buren Circuit Court
LC No. 81-019565-DM
JAN ARNOLD LINDERMAN,
Defendant-Appellee.
Updated Copy
March 2, 2001
Before: Smolenski, P.J., and Zahra and Collins, JJ.
SMOLENSKI, P.J.
Plaintiff appeals from a circuit court order rendered in postjudgment divorce proceedings,
in which the circuit court waived defendant's obligation to pay statutorily mandated surcharges
on the child support arrearage. We granted plaintiff 's application for leave to appeal. We
reverse and remand for further proceedings consistent with this opinion.
I. Factual and Procedural Background
Plaintiff and defendant divorced on February 24, 1983. Of the parties' five children, the
circuit court awarded plaintiff custody of three children and awarded defendant custody of two
children. The judgment of divorce provided that defendant was responsible for paying child
support for the three children in plaintiff 's custody until those children reached the age of
eighteen or completed high school. As the children progressively reached the age of eighteen,
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defendant was required to pay child support under the following formula: $150 a week for three
children, $132 a week for two children, and $90 a week for one child.
When the divorce became final, defendant owed no arrears in child support. However,
during the two years immediately following the entry of the divorce judgment, defendant failed
to pay any child support. Because defendant had moved to Florida, Michigan authorities sought
the assistance of Florida authorities to enforce defendant's Michigan support obligation under the
Uniform Reciprocal Enforcement of Support Act, MCL 780.151 et seq.; MSA 25.225(1) et seq.1
Two years after the parties' judgment of divorce was finalized, defendant signed a stipulation
with Florida authorities in which he agreed to pay $210 a month in child support. The stipulation
also provided that defendant would pay $30 a month toward the arrearage accumulated in
Michigan during the two years when defendant had failed to pay any support. These stipulations
were incorporated into an order of support entered on January 23, 1985, in a Florida circuit court.
Although defendant regularly paid the amounts ordered by the Florida court, those payments fell
substantially short of his support obligation under the Michigan divorce judgment. During the
next thirteen years, a child support arrearage of approximately $51,000 accumulated in Michigan.
On May 6, 1998, defendant filed a motion with the Van Buren Circuit Court requesting
the cancellation of his support arrearage. Defendant argued that the stipulation and order filed in
Florida modified the original Michigan support order. Defendant also argued that two of the
parties' children had stopped living with plaintiff before they reached the age of eighteen, and
that the court should award him a retroactive credit with regard to those children. Finally,
defendant argued that plaintiff was barred from collecting the child support arrearage under the
doctrines of laches and estoppel.
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The trial court rejected defendant's argument that the Florida stipulation and order
modified the terms of the Michigan support order. Accordingly, the circuit court confirmed
defendant's obligation to pay the accumulated support arrearage.
The circuit court further
rejected defendant's equitable arguments, holding that defendant had come to the court with
unclean hands because he had made no payments on his Michigan support obligation until forced
to do so by Florida authorities.
Nevertheless, the circuit court waived all past and future
surcharges statutorily imposed on defendant's child support arrearage. The circuit court based
this decision on its belief that the parties had not contemplated, at the time of the divorce
judgment, that interest would accrue on defendant's unpaid child support.
Plaintiff filed an application for leave to appeal, which this Court granted. Plaintiff
argues that the trial court lacked authority to waive past and future surcharges imposed on
defendant's child support arrearage, given the mandatory language contained in MCL 552.603a;
MSA 25.164(3a).2 We find merit in plaintiff 's argument and accordingly reverse the circuit
court order and remand for further proceedings consistent with this opinion.
II. Analysis
The sole issue presented on appeal is whether a circuit court has the authority to waive
the surcharges statutorily imposed on a party's child support arrearage by MCL 552.603a; MSA
25.164(3a).3 The answer to that question requires analysis of two closely related provisions of
the Support and Parenting Time Enforcement Act, MCL 552.601 et seq.; MSA 25.164(1) et seq.
The first relevant statutory provision, § 3a of that act, MCL 552.603a; MSA 25.164(3a), governs
surcharges on delinquent support payments:
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(1) As of January 1 and July 1 of each year, a surcharge calculated at an
8% annual rate shall be added to support payments that are past due as of those
dates. The amount shown as due and owing on the records of the friend of the
court as of January 1 and July 1 of each year shall be reduced by an amount equal
to 2 weeks' support for purposes of assessing the surcharge. . . .
(2) Upon receiving money for payment of support, the friend of the court
shall apply the amount received first to current support and then to pay any
support arrearage including any surcharges imposed under this section.
The second relevant statutory provision, subsection 2 of § 3 of the act, MCL 552.603(2);
MSA 25.164(3)(2), governs retroactive modification of support orders:
Except as otherwise provided in this section, a support order that is part of
a judgment or is an order in a domestic relations matter . . . is a judgment on and
after the date each support payment is due, with the full force, effect, and
attributes of a judgment of this state, and is not, on and after the date it is due,
subject to retroactive modification. Retroactive modification of a support
payment due under a support order is permissible with respect to any period
during which there is pending a petition for modification, but only from the date
that notice of the petition was given to the payer or recipient of support.
Statutory interpretation involves a question of law subject to review de novo. People v
Law, 459 Mich 419, 423; 591 NW2d 20 (1999). "'When a statute is clear and unambiguous, it
must be applied as written . . . .'" Harvey v Harvey, 237 Mich App 432, 438; 603 NW2d 302
(1999), quoting Waple v Waple, 179 Mich App 673, 676; 446 NW2d 536 (1989). Our review of
both § 3a and § 3 compels us to conclude that the circuit court committed error requiring reversal
when it waived the past and future surcharges applicable to defendant's child support arrearage.
A. Discretion to Modify Surcharges
First, plaintiff points to the plain language of § 3a, which provides that an eight percent
surcharge "shall be added to support payments that are past due." Plaintiff argues that the
Legislature's use of the term "shall" makes the imposition of the surcharge mandatory and
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deprives the circuit court of discretion to modify the surcharge. We agree. "In interpreting a
statute, we apply the rule of ordinary usage and common sense. Applying such a rule, the word
'shall' generally denotes a mandatory duty." People v Kelly, 186 Mich App 524, 528-529; 465
NW2d 569 (1990) (citations omitted). Further, "use of the term 'shall' rather than 'may' indicates
mandatory rather than discretionary action." People v Grant, 445 Mich 535, 542; 520 NW2d 123
(1994), citing Browder v Int'l Fidelity Ins Co, 413 Mich 603, 612 and n 7; 321 NW2d 668
(1982). We conclude that the plain language of § 3a mandates the imposition of an eight percent
surcharge on child support payments that are past due and deprives the circuit court of discretion
to modify such surcharges. Therefore, the circuit court's decision to waive defendant's past and
future surcharges must be reversed.
B. Retroactive Modification of Accumulated Surcharges
In addition to the plain language of § 3a, we find that the plain language of § 3 also
requires reversal of the circuit court's order. Section 3 provides that a child support order is not
subject to retroactive modification. This Court has previously held that § 3 prohibits a circuit
court from retroactively modifying a party's accumulated child support arrearage. Harvey, supra;
Waple, supra. We conclude that the statutory surcharge described in § 3a, once imposed by the
friend of the court, becomes part of a party's child support arrearage. Therefore, § 3 prohibits a
circuit court from retroactively modifying the statutory surcharges.
In Waple, supra, this Court considered whether a circuit court was authorized to reduce
an arrearage resulting from overdue child support payments. In that case, the judgment of
divorce fixed the defendant's support obligation at $108 a week.
During postjudgment
proceedings, the defendant filed a motion requesting a reduction in his support obligation. The
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circuit court ruled in the defendant's favor and reduced his weekly support obligation to $26,
primarily based on the fact that one of the children for whom he was paying support was living
with the defendant. The court made that support obligation retroactively effective to a date
preceding the filing of the defendant's motion to reduce support and forgave the arrearage that
had accumulated before the defendant filed his motion to reduce support. On appeal, this Court
examined the language of § 3 and concluded that the circuit court was not authorized to
retroactively modify the defendant's child support arrearage for those periods before the service
of the defendant's petition for modification of support. Waple, supra at 674.
In Harvey, supra, this Court again considered whether a circuit court was authorized to
retroactively modify a child support arrearage. In that case, the custody of the minor children
remained in flux for several years. After the plaintiff regained custody of all three children, she
moved from Marquette County to Alger County and requested that the postjudgment proceedings
be transferred to the Alger Circuit Court. In the transfer order, the Marquette Circuit Court stated
that the defendant owed no arrears on his child support obligations. After the Alger Circuit
Court assumed jurisdiction over the case, it recalculated defendant's support obligation and
imposed an arrearage of approximately $15,000 on the defendant, relating to the period when the
custody of the minor children had been in flux. This Court reversed, holding that the plain
language of § 3 prohibited the Alger Circuit Court from retroactively modifying defendant's child
support arrearage. Harvey, supra at 439.
Applying Waple and Harvey to the instant case, it is clear that the circuit court lacked the
authority to retroactively modify defendant's child support arrearage for any period before the
service of defendant's petition for modification of support. The question then becomes whether
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surcharges imposed by the friend of the court under § 3a become part of a party's arrearage. We
conclude that they do.
Section 3a provides that surcharges shall be calculated and assessed as of January 1 and
July 1 of each year. The statutory section then describes how the friend of the court shall apply
the support payments it receives:
(2) Upon receiving money for payment of support, the friend of the court
shall apply the amount received first to current support and then to pay any
support arrearage including any surcharges imposed under this section. [MCL
552.603a(2); MSA 25.164(3a)(2) (emphasis added).]
We believe that the plain language of subsection 3a(2) treats surcharges imposed on
unpaid child support as a portion of the party's arrearage. The prohibition against retroactive
modification of child support arrearages contained in § 3 therefore applies to child support
surcharges imposed by § 3a. Applying § 3 to the present case, we conclude that the circuit court
was not authorized to waive any surcharges that accrued before May 5, 1998, the date on which
defendant provided plaintiff with notice of the motion for modification of his child support
arrearage.
Defendant might have filed an earlier petition with the Michigan courts, seeking a
reduction in child support obligations for times when the minor children were not residing with
plaintiff. Plaintiff might also have acted to enforce the standing order of child support before she
did. However, the parties' various actions and inactions lead, under the applicable statutory
language, to this result. Harvey, supra at 441. We reverse the circuit court's order insofar as it
waived past and future surcharges on defendant's child support arrearage.
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Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Brian K. Zahra
/s/ Jeffrey G. Collins
1
That act was subsequently retitled as the Revised Uniform Reciprocal Enforcement of Support
Act.
2
Defendant did not appeal from the circuit court's final order and did not respond to plaintiff 's
appeal.
3
Because defendant did not appeal the circuit court's decision, we do not consider the merits of
the circuit court's holding that the Florida stipulation and order did not modify the terms of the
Michigan support order.
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