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finding partial payment waived statute of limitations defense even though made pursuant to income withholding order
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No. 244191.
Submitted February 11, 2004, at Detroit.
Decided March 9, 2004, at 9:10 a.m. Updated May 21, 2004.
Appeal from Wayne Circuit Court, LC No. 77-728900-DS.
Weisman, Young, Schloss Ruemenapp, P.C. (by John A. Ruemenapp), for David A. Yates.
Before: Neff, P.J., and Wilder and Kelly, JJ.
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. 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.
Plaintiff has not filed a brief on appeal.
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 N.W.2d 565 (1999).
III
There is no question that the applicable statute of limitations is MCL 600.5809(3), 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 N.W.2d 864 (1992); Ewing v. Bolden, 194 Mich. App. 95, 99; 486 N.W.2d 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.
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 N.W.2d 646 (1999).
The sole question in this case is whether the period of limitations was extended by payments made before the limitations period ran. That is, can partial payment within the period of limitations — the income withholding payments made during the 1990s — operate to extend it? We hold that it can.
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.
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.
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 N.W.2d 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, 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 N.W. 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:
The applicable statute of limitations was MCL 600.5807(8), which relates to contract actions.
[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 N.W. 997 (1903). See also 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. We further hold that the nature of the payments did not render them involuntary.
The right to interpose a statute of limitations defense is not a vested right. Bessmertnaja v. Schwager, 191 Mich. App. 151, 154; 477 N.W.2d 126 (1991).
The order denying defendant's motion to extinguish child support arrearage is affirmed.