Opinion
Docket No. 49296.
Decided July 23, 1980.
Robert C. Engels, Prosecuting Attorney, and Dale A. Crowley, Assistant Prosecuting Attorney, for plaintiff.
Van Hattum, Hickman Harrison, P.C., for defendant.
Defendant appeals from a decision of the circuit court denying his motion to set aside support arrearages and a contempt citation that was issued against him for the arrearages. On appeal a stipulated statement of facts has been submitted which provides as follows:
"1. On or about July 19, 1977, the Circuit Court for the County of Barry entered a modified order for support and alimony in the amount of $30.00 per week in Case #B76-230-DS.
"2. On or about May 11, 1978, the defendant-appellant filed a complaint for divorce in the Circuit Court for the County of Kent against the plaintiff-appellee, in Case #78-35026-DM.
"3. In said divorce proceedings in Kent County, the defendant-appellant, Arthur Seybold, disputed the paternity of the youngest child of the parties.
"4. On or about December 2, 1979, the Circuit Court for the County of Barry found the defendant-appellant guilty of contempt for failure to pay support and sentenced him to pay $500.00 or serve six months in the Barry County Jail.
"5. The defendant-appellant does not have the resources to pay $500.00 and therefore has been incarcerated since December 2, 1979.
"6. On or about December 28, 1979, a Judgment of Divorce was entered by the Circuit Court for the County of Kent, Judge Woodrow A. Yared. Said Judgment of Divorce provided, in part, as follows:
"` SUPPORT ARREARAGES
"`IT IS FURTHER ORDERED AND ADJUGED that any support arrearages are hereby set aside and held for naught, in consideration of the plaintiff's withdrawing his claim of non-paternity of the parties' youngest child.'
A copy of said Judgment of Divorce was attached to defendant-appellant's Exparte Application for Emergency Appeal.
"7. On January 2, 1980, the defendant-appellant moved the Circuit Court for the County of Barry to dismiss the within cause on the basis of MCL 952.455, claiming that the Judgment of Divorce as above set forth makes the prior order of support null and void and therefore unenforceable.
"8. Said motion was heard by the consent of the parties and the Court on January 4, 1980, and the Circuit Court for the County of Barry denied the motion holding that although no additional support could be accumulated under said prior order of support entered by the Circuit Court of the County of Barry, that any support arrearages existing up until December 28, 1979, could continue to be enforced."
Section 1 of the Family Support Act, MCL 552.451; MSA 25.222(1), provides that a married woman with minor children who lives separate from the father of the children may seek an order directing the father to support her and the children. The act further provides that the order becomes null and void if a judgment of divorce is entered between the parties. MCL 552.455; MSA 25.222(5). Under the language of the statute, the support order becomes void "upon the effective date of the judgment".
The statute does not provide that the support order is void ab initio. Any arrearage which was accrued under the support order prior to the effective date of the divorce judgment remains a valid obligation of the defendant and the support order can be enforced by contempt proceedings.
Defendant's claim that the Kent County judgment decided the question of arrearage and that the Barry County action is barred by res judicata is without merit. The Barry County court order preceded the judgment of the Kent County court and the Kent County action was not decided on the merits. Plaintiff's subsequent waiver of her right to the arrearages in the Kent County action does not affect the Barry County court's prior order of contempt or the right of the department of social services to collect the arrearages as provided by MCL 552.454; MSA 25.222(4).
Affirmed.