Opinion
No. 339592
01-23-2018
In re M. HAMMOND, Minor.
UNPUBLISHED Bay Circuit Court Family Division
LC No. 15-011898-NA Before: MURPHY, P.J., and SAWYER and BECKERING, JJ. PER CURIAM.
In October 2015, a family court judge entered an order terminating respondent's parental rights to his minor daughter, and almost immediately thereafter an amended termination order was issued by the judge, which added language indicating "that the child support obligations of [respondent] for the minor are hereby terminated . . . ." Well over a year later, the Department of Health and Human Services (DHHS) filed a motion to set aside the amended termination order, arguing that the order had been entered absent any notice to the county prosecutor and DHHS, that the termination of respondent's child support obligation was contrary to law under our Supreme Court's ruling in In re Beck, 488 Mich 6; 793 NW2d 562 (2010), and that the family court judge otherwise lacked the authority in the neglect proceedings to suspend support. DHHS failed to cite any court rule or statutory provision pertaining to relief from an order, such as MCR 2.612 (relief from judgment or order generally) or MCR 3.992 (encompassing postjudgment relief from a termination order). At the hearing on the motion, DHHS expressly asked the trial court to solely consider its Beck argument and not the other issues raised in the motion to set aside the amended termination order. The trial court, absent mention of any procedural rule on setting aside orders, granted the motion, concluding that, pursuant to Beck, the amended termination order could not contain the language suspending respondent's child support obligation and was thus void ab initio. The court's ruling effectively reinstated the original termination order and respondent's child support obligation. Respondent appeals as of right, and we vacate the trial court's ruling and remand for further proceedings.
Respondent had been obligated to pay child support pursuant to an earlier judgment of divorce entered in the Arenac Circuit Court. --------
Initially, DHHS argues on appeal that respondent does not have an appeal of right, contending that the original termination order was the only "final order" appealable by right in this case. Assuming that there is any validity to DHHS' position, we shall treat respondent's appeal as an application for leave, grant leave, and address his arguments. See Rains v Rains, 301 Mich App 313, 320 n 2; 836 NW2d 709 (2013). A trial court's decision to grant relief from an order is reviewed for an abuse of discretion. Dep't of Environmental Quality v Waterous Co, 279 Mich App 346, 364; 760 NW2d 856 (2008). "A trial court necessarily abuses its discretion when it makes an error of law." People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).
In Beck, 488 Mich at 15, the Supreme Court held that even after a parent's rights to a child have been terminated, the obligation to pay support for that child continues, unless a court of competent jurisdiction, exercising its discretion, modifies or terminates the support obligation; the court is not compelled to do so. The trial court in the instant case determined that Beck did not allow for the provision in the amended termination order that ceased respondent's child support obligation. It does not appear that the trial court reached this conclusion on the basis that the family court that issued the amended termination order was not a court of competent jurisdiction, although it is not entirely clear from the record.
Respondent interprets the trial court's decision as being based on a determination that the family court had not been a court of competent jurisdiction, framing his entire appellate argument around that issue. On appeal, DHHS argues that the amended termination order was unlawfully entered on either a sua sponte or ex parte basis, that said order was improper because the issue of child support had never been raised or litigated in the parental termination proceeding, and that the order was invalid given that it had never been served on DHHS and the prosecutor. Although DHHS had essentially raised these arguments below in the motion to set aside the amended termination order, it expressly declined to pursue them at the hearing on the motion, instead focusing exclusively on Beck, thereby creating a preservation problem. See Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95-96; 693 NW2d 170 (2005).
We conclude that the appropriate course of action is to vacate the trial court's order setting aside the amended termination order and remand for further proceedings with some specific directions to guide the parties and the trial court. First, for purposes of constructing the necessary analytical framework, DHHS shall identify a procedural rule regarding relief from judgment or order upon which it will rely in advancing its motion to set aside the amended termination order. Second, if the procedural rule, or the trial court's application of the rule, allows DHHS to go forward and obtain a substantive review of its motion, the court shall directly entertain the question whether the family court that entered the amended termination order constituted a court of competent jurisdiction under Beck. On this issue, the trial court is to consider, minimally, any relevancy of the fact that the Arenac Circuit Court was the court that ordered the underlying payment of child support prior to the termination proceeding. Third, should the trial court conclude that the family court had indeed been a court of competent jurisdiction, such that it generally would have had authority to modify or terminate respondent's child support obligation under Beck, the court shall determine whether the service, notice, or other arguments raised by DHHS justify setting aside the amended termination order within the parameters of any governing procedural rule or rules. Finally, although we have given some direction for purposes of proceedings on remand, nothing in this opinion should be construed as prohibiting the parties or the trial court from raising any additional pertinent issues or arguments in resolving the matter.
Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Jane M. Beckering