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11/27/72 OVAITT v. OVAITT

November 27, 1972

OVAITT
v.
OVAITT



Appeal from Genesee, John W. Baker, J.

McGregor, C. J., and Levin and Targonski,* JJ. All concurred.

SYLLABUS BY THE COURT

1. Divorce -- Child Support -- College Expenses.

A court may validly order either parent in a divorce action to pay the reasonable college expenses of a minor child after the child reaches 18 but not after he reaches 21 (MCLA 552.17a).

2. Divorce -- Property Agreement -- Support Agreements -- Modifications.

Property settlement agreements which are incorporated in the judgment of divorce cannot be set aside except for fraud, duress, mutual mistake, or comparable reasons, while support agreements are subject to court modification.

3. Divorce -- Child Support -- College Expenses -- Statutory Authority.

A court, acting under the statutory authority providing for support of minor children, has jurisdiction to make an order or judgment for support and college expenses for the children of the parties to a divorce who are minors at the time of entry of such order or judgment, and to provide that payments shall continue under the order or judgment beyond the minority of the children (MCLA 552.17a).

4. Divorce -- Child Support -- Enforcement -- Contempt Proceedings.

The terms of a valid support and college expense provision of a divorce judgment entered during the minority of the child and extending to a period beyond the minority are enforceable by contempt proceedings even though the child has reached majority (MCLA 552.151).

The opinion of the court was delivered by: Targonski

Complaint by Myron R. Ovaitt against Elaine J. Ovaitt for divorce. Defendant counterclaimed for divorce. Judgment for defendant on the counterclaim. Motion to modify judgment granted for plaintiff. Defendant appeals.

We are faced here with a novel question which apparently has never been decided on the precise point in Michigan. Can the circuit court enforce against the husband, by contempt proceedings, provisions in a judgment of divorce which require the husband to provide support (including college expenses) for his children after said children reach age 21, where the challenged provision was incorporated verbatim into the judgment from a written stipulation and property settlement agreement voluntarily executed by the parties prior to their divorce?

The defendant and cross plaintiff will hereafter be referred to as the defendant. The plaintiff and cross defendant will hereafter be referred to as the plaintiff.

A judgment of divorce was awarded to the defendant. The judgment which was entered on August 31, 1965, incorporated verbatim the terms of a written stipulation and property agreement entered into by the parties. The pertinent provision of the judgment which constitutes the gravamen of this appeal of right from an order of January 7, 1971, amending the judgment of divorce, provided as follows:

"B. It is further ordered and adJudged that when the cross-defendant's obligation to support Wendy J. Ovaitt and Myron M. Ovaitt terminates as described in subparagraph A hereof, the said cross-defendant shall pay to the cross-plaintiff, through the office of the Friend of the Court for Genesee County, Michigan, for the support and maintenance of Wendy J. Ovaitt and Myron M. Ovaitt while attending college as follows: the sum of one hundred ($100.00) dollars for each child, on the first day of each term or semester of college, and in addition thereto, the sum of one hundred ($100.00) dollars for each child, on the first day of each month that said child is in attendance at an accredited college or university; provided, however, that this provision shall limit the cross-defendant's obligation for support to a total of three (3) terms per year, if said college is on a term basis, or two (2) semesters per year, if said college is on a semester basis. Said support payments as heretofore described shall continue so as to provide four (4) years of college for each child. Thereafter, the cross-defendant shall be relieved of all obligations to support said children. Said support payments shall include the defrayment of ordinary health expenses incurred in behalf of Wendy J. Ovaitt and Myron M. Ovaitt."

The parties agree that at the time the stipulation was entered, plaintiff knew that the children would be more than 21 years of age by the time they completed four academic years of college.

Wendy became 21 years old on February 23, 1970, and plaintiff refused to pay her educational expenses subsequent to such birthday. On May 12, 1970, plaintiff filed a motion to terminate his support as to Wendy J. Ovaitt. Defendant responded with a motion to require plaintiff to comply with the above-cited provision of the divorce judgment relating to the payment of Wendy's college expenses after her twenty-first birthday.

No testimony was taken with respect to either motion as the parties submitted the issue to the court on stipulated facts. The order amended the judgment of divorce by terminating plaintiff's obligation to pay college expenses incurred by his children after the age of 21 years.

The statutes primarily relevant to the case at bar provide:

"Sec. 17a. The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age. However, on application for modification of a judgment or order where applicant is in contempt, for cause shown, ...


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