GRANT STEVEN FISHER V JOANNE MARIE FISHER
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STATE OF MICHIGAN
COURT OF APPEALS
GRANT STEVEN FISHER,
FOR PUBLICATION
August 16, 2007
9:00 a.m.
Plaintiff-Appellant,
v
No. 270241
Wayne Circuit Court
LC No. 92-219611-DM
JOANNE MARIE FISHER,
Defendant-Appellee.
Official Reported Version
Before: Davis, P.J., and Schuette and Borrello, JJ.
DAVIS, P.J.
Plaintiff appeals by leave granted the trial court's order denying his motion for
reimbursement of overpaid child support but giving him a credit against his child support
arrearage. We affirm.
The parties were previously married, and they had one child born in 1987. The parties
separated in 1989, at which time plaintiff was ordered to pay child support by means of income
withholding. A default judgment of divorce was entered in 1992. Plaintiff 's withholding was
initially $80 a week, and in 1998 it was later increased to $117 a week. In 1999, the trial court
determined that plaintiff 's sole source of income was Social Security disability (SSDI) benefits;
in 2000, the Friend of the Court began withholding $510.80 a month from plaintiff 's Social
Security checks. Plaintiff had accumulated an arrearage on his child support obligations at the
time he became disabled. However, when he became disabled, defendant began receiving SSDI
benefits directly on behalf of the child, and those benefits exceeded plaintiff 's support
obligations. Defendant continued to receive the amounts withheld from plaintiff 's SSDI checks
and the direct Social Security payments.
Plaintiff moved to abate his child support obligation, to credit the excess payments
against his arrearage, and to obtain a refund of any remaining overpayments. Defendant
admitted receiving the Social Security payments, and she conceded that the excess payments
could be credited against any arrearages that had accumulated since plaintiff 's disability.
Defendant contended that plaintiff was otherwise seeking an impermissible retroactive
modification of child support. The trial court concluded that the direct Social Security payments
could be credited only against any arrearages accumulated since the date of his disability, but
that the withholdings from plaintiff 's SSDI checks could be used to satisfy any predisability
arrearages. However, the trial court also concluded that the excess child support payments
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remaining after satisfying both categories of arrearages could not be used for any future
obligations.1 This Court granted plaintiff leave to appeal.
Generally, this Court reviews child support orders and orders modifying support for an
abuse of discretion. Peterson v Peterson, 272 Mich App 511, 515; 727 NW2d 393 (2006).
Whether the trial court properly acted within the child support guidelines is a question of law
that this Court reviews de novo. Id. at 516. This Court also reviews questions of statutory
construction de novo. Perry v Golling Chrysler Plymouth Jeep, Inc, 477 Mich 62, 65; 729
NW2d 500 (2007).
We first address whether plaintiff was properly entitled to a credit against his arrearages,
and we hold that the trial court properly credited him. In Frens v Frens, 191 Mich App 654,
656-658; 478 NW2d 750 (1991), this Court explained that Social Security benefits paid directly
to a custodial parent, on behalf of a minor child and as a result of the disability of the
noncustodial parent, may be credited against child support obligations that arise during the
disability, but may not be applied to any prior arrearages. The trial court therefore properly
applied the direct Social Security payments to give plaintiff credit against his postdisability
arrearage.
The excess payments withheld from plaintiff 's checks were from plaintiff 's own income,
and the trial court properly applied them to the predisability arrearage.
The significant issue in this case concerns the remaining overpayment. The trial court
calculated that an arrearage of $8,056.47 accrued before plaintiff 's disability. Plaintiff
accumulated an additional arrearage of $10,216 between the date he became disabled and the
date the Friend of the Court began withholding money from his SSDI checks. Plaintiff 's child
support obligations after he began receiving Social Security benefits amounted to $33,712.80.
Therefore, his total postdisability support obligation was $43,928.80. Defendant ultimately
received $49,302 in direct Social Security payments for the child, which alone exceeded
plaintiff 's postdisability obligation (including the postdisability arrearage) by $5,373.20.
Defendant also received $26,561.60 in withholdings from plaintiff 's Social Security checks. The
withholdings from plaintiff 's Social Security checks exceeded his outstanding predisability
arrearage by $18,505.13. Plaintiff asserts that he is entitled to a refund of the overpayments
withheld from his checks.2
The trial court relied in part on Pellar v Pellar, 178 Mich App 29, 33-36; 443 NW2d 427
(1989), in which this Court explained that voluntary overpayments made before the existence of
1
Given that the child is now 20 years old and all arrearages have been paid, a credit against
future obligations would likely be useless to plaintiff.
2
Plaintiff does not seek a refund for the direct SSDI payments. We note that, in any event, the
Michigan Child Support Formula Manual explains that Social Security disability payments made
directly to a child can be credited against child support obligations only up to the full amount of
those obligations, and no more. See 2004 MCSFM 2.05(C), (D).
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an obligation cannot later be credited against that subsequent obligation. Plaintiff argues that his
overpayments were not voluntary, and he seeks reimbursement rather than a credit against a
future obligation. We conclude that the relief plaintiff seeks is precluded by MCL 552.603,
which, among other things, establishes that "each support payment [is] the equivalent of a final
judgment and prohibit[s] retroactive modification" thereof. Waple v Waple, 179 Mich App 673,
677; 446 NW2d 536 (1989). One of the ramifications of this statute is that a court may not
retroactively modify an accumulated child support arrearage.3 Adams v Linderman, 244 Mich
App 178, 185-186; 624 NW2d 776 (2000). In fact, this has been described as "the rule against
retroactive child support orders," and it not only precludes retroactive reductions in child
support, but also retroactive increases. Harvey v Harvey, 237 Mich App 432, 437-439; 603
NW2d 302 (1999).
The policy underlying this rule is an important one: ensuring the welfare of children and
their right to support by their parents. Harvey, supra at 438-439. Child support is for the benefit
of the child, and it is important to protect children against disruptions in child support payments.
Pellar, supra at 34-36. In light of this policy, parents should be able to rely on not only
receiving the payments that are ordered, but also on using them. Hall v Novik, 256 Mich App
387, 398-399; 663 NW2d 522 (2003). Although this Court in Hall discussed the need to protect
custodial parents from "fear that reimbursement will be later required following a change in the
law," id. at 399, the same principle applies to any future reimbursement. Although the statute
provides for a handful of exceptions not at issue here, the general rule is that the protection of
children mandates the finality of child support obligations and child support payments.
The gravamen of plaintiff 's argument is that he should not have had to make all the child
support payments that he was ordered to pay. However, those payments were properly paid
pursuant to valid court orders at the time. The only way to "undo" those payments is by
retroactively determining that plaintiff was not, in fact, under an obligation to pay them and
retroactively rescinding those court orders. Doing so contravenes the literal dictates of MCL
552.603, as well as its spirit and intended goals. Obtaining a refund for those payments is not
functionally distinguishable from retroactively negating the obligation to pay them. Therefore,
having made child support payments, plaintiff may not get them back. The fundamental goal of
child support is to protect the child, and an essential step toward accomplishing that goal is to
provide certainty for all parties. The recipient of child support payments should be able to rely
on them. Likewise, a noncustodial parent who makes child support payments should be able to
rely on his or her court-determined obligation when making payments.
This case graphically illustrates the need for payers and payees of child support to keep
the Friend of the Court and each other appraised in a timely manner of significant changes in
economic circumstances. In particular, the statute explicitly permits retroactive modification of
child support obligations "with respect to a period during which there is a pending petition for
3
We note that the statute does contain exceptions that are not applicable here, such as a prior
agreement between the parties or certain temporary or interim orders.
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modification, but only from the date that notice of the petition was given to the payer or recipient
of support." MCL 552.603(2). This Court has previously explained that Social Security benefits
paid directly to a child should be treated like any other change in circumstance. Jenerou v
Jenerou, 200 Mich App 265, 267-268; 503 NW2d 744 (1993). This Court explained that a party
seeking benefits should petition for modification on the basis of the anticipated change of
circumstances, and the trial court could then defer ruling on the petition until the change occurs
or until it becomes clear that the change will not occur. Id. "This would give the trial court the
power to retroactively modify the support order to take into account all the changes in
circumstance, while at the same time providing the custodial parent with notice that such a
modification is a possibility." Id. at 268. The same approach applies to other anticipated
changes in circumstance. It is incumbent on the parties to keep each other and the court apprised
of any change in circumstances.
Having paid his court-ordered child support obligations, and in the absence of any
exceptions to the general rule against retroactive modification of child support obligations,
plaintiff may not obtain a refund.
Affirmed.
/s/ Alton T. Davis
/s/ Bill Schuette
/s/ Stephen L. Borrello
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