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Limitations Period On Unpaid Child Support Tolled By Trial Court’s ‘Continuing Jurisdiction’

Posted on Wednesday, November 28, 2018

A father remained responsible for more than $40,000 in unpaid child support from a 1992 paternity case because the 10-year statute of limitations for enforcing child-support orders was tolled by the trial court’s continuing jurisdiction, the Michigan Court of Appeals has ruled. 

In Parks v Niemiec (Docket No. 337823), the defendant-father alleged he was entitled to a discharge of the unpaid support because the last payment was due in 2017 when the child turned 18 and, as a result, he claimed the 10-year statute of limitations barred enforcement of the support order. The Macomb County Circuit Court denied the defendant’s motion to cancel the unpaid child support.

The Court of Appeals affirmed in a published decision, although it noted the trial court erred in finding that “no statute of limitations barred recovery of unpaid support in a civil case.”

“A civil action to enforce a child support order is subject to a 10-year statutory limitations period,” the Court of Appeals wrote, citing MCL 600.5809(4) and People v Monaco, 474 Mich 48 (2006). “For this reason, the trial court’s reasoning that no statute of limitations barred recovery of unpaid support in a civil case was erroneous. Nonetheless, we affirm the trial court’s order because the statutory limitations periods were tolled by the trial court’s continuing jurisdiction.”

Limitations Period Tolled

The Court of Appeals explained that, if a person is ordered to pay child support and fails to do so, and if an order of income withholding is inapplicable or unsuccessful, a recipient of support or the Friend of the Court (FOC) can begin a civil contempt proceeding under MCL 552.631(1).

Meanwhile, the 10-year limitations period in MCL 600.5809(4) runs “from the date that the last support payment is due under the support order regardless of whether or not the last payment is made,” the Court of Appeals said, noting that typically the date the last support payment is due is the child’s 18th birthday.

“A statute of limitations is tolled when a complaint is properly filed or ‘[a]t the time jurisdiction over the defendant is otherwise acquired,’” the Court of Appeals said, citing MCL 600.5856(a) and (b). “Pertinent to this case, a trial court ‘has continuing jurisdiction over proceedings brought under’ The Paternity Act, MCL 722.711 et seq., to change the amount of child support or to enforce a support order.”

According to the Court of Appeals, it was undisputed the defendant’s oldest child turned 18 on December 25, 2005, and that his younger child turned 18 on May 21, 2007. “The statutory limitations periods for recovery of unpaid support in a civil case for each child would have expired on December 25, 2015, and May 21, 2017, respectively.”

However, the limitations periods were tolled by the trial court’s continuing jurisdiction, the Court of Appeals said. “The trial court began exercising jurisdiction in 1992 when it entered a judgment of filiation and a support order. The trial court continued to exercise jurisdiction by entering orders for [the defendant] to show cause for failure to pay support, issuing multiple bench warrants and enforcement orders, and temporarily suspending [his] support obligation beginning in June 2007 while he was in prison.”

Moreover, the suspension of the defendant’s support obligation for the nearly 10 years of his incarceration did not affect the tolling of the limitations periods because the plaintiff had already tried to recover unpaid support many times before either child turned 18, the Court of Appeals observed. “That temporary suspension merely reflected the trial court’s continuing jurisdiction. Therefore, even after the statutory limitations periods began to run in December 2005 and May 2007, respectively, they were tolled by the trial court’s continuing jurisdiction.”

In conclusion, the Court of Appeals ruled that although the trial court wrongly determined that no statute of limitations applied to civil proceedings to enforce a child-support order, it nevertheless reached the correct result because the trial court’s continuing jurisdiction in this proceeding tolled the limitations periods.

“Therefore, [the defendant] remains liable for unpaid child support in this civil proceeding,” the Court of Appeals held.

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