Michigan Court of Appeals, 2003

McLaughlin v. McLaughlin

McLaughlin v. McLaughlin
Michigan Court of Appeals · Decided May 6, 2003 · Fitzgerald, Wilder, Cooper
660 N.W.2d 784; 255 Mich. App. 475 (North Western Reporter, Second Series)

McLaughlin v. McLaughlin

Opinion

Cooper, J.

Defendant appeals by leave granted from a July 31, 2001, order denying his motion to terminate his child-support obligation during his period of incarceration. We affirm.

Plaintiff and defendant were divorced on August 21, 1987. Plaintiff was awarded custody of the two *476 minor children and defendant was ordered to pay plaintiff $40 a week for the support and maintenance of each minor child until age eighteen or graduation from high school. Defendant was further ordered to pay $10 a week for child-support arrearages under the ex parte order of child-support entered prior to the parties’ divorce.

On May 14, 1990, defendant was incarcerated for a term of six months to five years for bank robbery. He was released on October 10, 1990, but received another sentence of eight to fifteen years for third-degree criminal sexual conduct that he began to serve on March 11, 1991. Defendant was paroled on July 22, 1999, but returned to prison as a parole violator on July 6, 2000.

As of February 23, 2001, defendant owed $78,410.78 in child-support arrearage. Defendant requested an incarceration credit to his arrearage for the time he served in prison for the third-degree criminal sexual conduct conviction. The trial court in accepting the friend of the court recommendation, found that case law holding that a noncustodial parent’s support arrearage which accrued while the parent was imprisoned should be discharged was inapplicable. Pierce v Pierce, 162 Mich App 367; 412 NW2d 291 (1987). The trial court reasoned that Pierce, did not control in this case because “the defendant committed criminal sexual conduct with his own child, and — or at least one of them . . . .”

We find it unnecessary to address these arguments on appeal because retroactive modification of child-support is prohibited by statute. Pursuant to MCL 552.603(2):

*477 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 a 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. [Emphasis added.]

Consequently, defendant’s child-support order is not subject to retroactive modification for the time that he was incarcerated. See Howe v Detroit Free Press, Inc, 219 Mich App 150, 158; 555 NW2d 738 (1996).

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.