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01/12/76 TITLER v. TITLER

January 12, 1976

TITLER
v.
TITLER



Appeal from Jackson, Charles J. Falahee, J.

McGregor, P. J., and T. M. Burns and N. J. Kaufman, JJ.

SYLLABUS BY THE COURT

1. Parent and Child -- Husband and Wife -- Mother and Minor Child Support Act -- Support Order -- Divorce -- Statutes.

A support order for a plaintiff wife and her two children, pursuant to the mother and minor child support act, may not be denied on the grounds that any support order would be predestined to conflict with a support order subsequently entered in a divorce action where the defendant husband initiated a divorce action after the support action was filed; however, any order entered pursuant to the act is null and void upon the effective date of a judgment of divorce or separate maintenance (MCLA 552.455; MSA 25.222[5]).

2. Parent and Child -- Husband and Wife -- Mother and Minor Child Support Act -- Divorce -- Separate Maintenance -- Statutes.

No complaint shall be filed nor shall any summons issue for an action under the mother and minor child support act where divorce or separate maintenance proceedings are then pending between the petitioner and her husband (MCLA 552.451; MSA 25.222[1]).

The opinion of the court was delivered by: Per Curiam

Complaint by Diane K. Titler against Richard L. Titler for support payments for herself and two minor children. Judgment for defendant. Plaintiff appeals.

The plaintiff, Diane Kaye Titler, appeals of right from an order entered on April 30, 1975, by the Jackson County Circuit Court. The order denied the plaintiff's complaint for support payments for herself and her minor children under the mother and minor child support act, 1966 PA 138, MCLA 552.451 et seq.; MSA 25.222(1) et seq.

The parties were married on February 26, 1972. They have two sons, ages 1 and 3. Since January 9, 1975, the plaintiff and the defendant have maintained separate residences. Since that date, the Jackson County Bureau of Social Aid has been making payments to the plaintiff for the care and support of her children under the ADC program. The defendant has not provided any support payments for the children since he and the plaintiff stopped living together.

On March 20, 1975, the plaintiff filed a complaint in Jackson County Circuit Court requesting that the defendant be ordered to make payments for the support of her and their two children under the provisions of the support act. The plaintiff has been represented at all stages of these proceedings by the Jackson County prosecutor as provided by MCLA 552.454; MSA 25.222(4).

The defendant was served with a summons in this support action on April 1, 1975. A hearing was noticed for April 18, 1975. In the afternoon of April 1, 1975, the defendant initiated a divorce action, also in Jackson County Circuit Court.

At the support hearing on April 18, the defendant's attorney argued that entry of a support order would be inappropriate since it would be predestined to conflict with whatever interim support order was subsequently entered in the divorce action. The trial Judge agreed with this reasoning and refused to make any support order. He did, however, indicate that, if the divorce action were assigned to him, he would make the interim support order retroactive to April 18, the date of the hearing in the present action. He also indicated that, if the divorce action were assigned to another Judge in that circuit, the prosecutor should exercise his statutory power to intervene, MCLA 552.45; MSA 25.121, in order to argue for a similar retroactive application. He indicated that the prosecutor was authorized to tell whichever Judge heard the divorce action that he (the trial Judge) favored a retroactive order.

On appeal, plaintiff argues that the clear wording of the support act requires us to vacate the trial court's decision. We agree. We find that ยงยง 1 and 5 of the statute provide for a ...


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