Smith v. Smith

Levin, J.

(dissenting). I would hold that, although the Legislature, in the Age of Majority Act, reduced the age of majority to eighteen,1 the circuit court continues to be empowered, under § 17a of the divorce statute, in "exceptional circumstances” to require child support until the child attains twenty-one.2 I agree with the majority that the case has not been made for a construction of the statutes that would empower the circuit court to require support beyond twenty-one.

In 1939, the Legislature added § 17a and thereby empowered the circuit court to require a husband3 to pay for the support of "minor children” until they attain seventeen and "in its discretion in case of exceptional circumstances” to require "payment of such allowance for any such child after he attains that age.”4

This Court construed § 17a as empowering the circuit court in exceptional circumstances "to grant support until arrival at majority — majority being 21 years old.” Johnson v Johnson, 346 Mich 418, 426; 78 NW2d 216 (1956); Titus v Titus, 311 Mich 434, 437; 18 NW2d 883 (1945).

In 1971, the Legislature reduced the age of majority from twenty-one to eighteen, and provided that a person who had attained or thereafter attains eighteen would be deemed to be an adult of legal age "for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore *663acquired at 21 years of age.”5 The Age of Majority Act provides that it "supersedes all provisions of law prescribing duties, liabilities, responsibilities, rights and legal capacity of persons 18 years of age through 20 years of age different from persons 21 years of age including but not limited to the following enumerated public acts.”6 Section 17a was not so enumerated.

The majority concludes that since this Court had construed § 17a as empowering the circuit court to award child support in exceptional circumstances only until a "minor child” attained the age of "majority,” when the Legislature reduced the age of majority to eighteen the power of the circuit court to award child support beyond eighteen perforce came to an end.

Section 17a provides that "payment of such allowance for any such child after he attains that age,”7 eighteen, may be awarded in exceptional circumstances, thereby clearly indicating that the 1939 Legislature intended that a "minor child” is nevertheless a "child” for the purposes of the exceptional-circumstances clause beyond eighteen until twenty-one when, at the time § 17a was enacted, he would cease to be a "minor child.”

It is not suggested that the 1939 Legislature, when enacting § 17a, contemplated the possible subsequent enactment of legislation raising or lowering the age of majority and intended that whatever the age of majority might be from time to time would be the age beyond which child support could not be awarded. In Johnson and Titus, this Court concluded that the 1939 Legislature, in enacting in § 17a that child support might be contin*664ued in exceptional circumstances until arrival at majority, intended that support might in such a case be continued until the age, twenty-one, then the age of majority. By construction, there was thus read into § 17a the concept, expressed in Johnson and Titus, that child support could be awarded in exceptional circumstances beyond eighteen until, but not beyond, twenty-one.

It is contended that, in reducing the age of majority from twenty-one to eighteen, the 1971 Legislature repealed by implication the authority conferred in § 17a to award child support in exceptional circumstances until twenty-one. Clearly, child support is not a "duty], liability], responsibility],” or "legal capacity” of the child within the meaning of the Age of Majority Act.8 While child support might be a "right” of the child, the Age of Majority Act provides generally that rights theretofore acquired at twenty-one henceforth would be acquired at eighteen.

The language employed does not appear to reduce the rights of a person who is eighteen but who has not yet reached twenty-one. The Age of Majority Act does not appear to concern, or have as its purpose reducing, rights acquired at or before birth, but rather accelerating the age of acquisition of rights theretofore not acquired until twenty-one. Nor has our attention been directed to anything in the history of the enactment of the Age of Majority Act that justifies the majority’s conclusion that the 1971 Legislature intended that the exceptional-circumstances clause of § 17a — not concerning a right theretofore acquired at twenty-one nor enumerated in the list of acts "superseded” — be repealed by implication.

There are two other straws in the wind. The *665Child Custody Act9 was amended in 198010 by deleting the "exceptional-circumstances” clause from § 7(1) of the act.11 The Family Support Act12 continues to provide, however, that in "unusual circumstances, the court may order support for the child after the child reaches 18 years of age and until he or she reaches 21 years of age, or until the further order of the court.”13 The failure to amend the Family Support Act in the manner in which the Child Custody Act was amended dissuades me from deducing legislative intent, operative in the construction of § 17a, on the basis of the amendment of the Child Support Act._

1971 PA 79, adding MCL 722.52; MSA 25.244(52).

1939 PA 255, adding § 17a to the Revised Statutes 1846, ch 84, as amended, concerning divorce. The age was changed from seventeen to eighteen by 1970 PA 543. MCL 552.17a; MSA 25.97(1).

Later changed to "either parent” by 1970 PA 182.

See n 2.

1971 PA 79, adding MCL 722.52; MSA 25.244(52).

MCL 722.53; MSA 255.244(53). The enumeration includes sections of "public acts” as well as "public acts.”

See n 2 and accompanying text.

See n 5 and accompanying text.

MCL 722.21 et seq.; MSA 25.312(1) et seq.

1980 PA 161.

MCL 722.27(1); MSA 25.312(7X1). See ns 10 and 11 of the lead opinion, ante, pp 6Í4-615.

MCL 552.451 et seq.; MSA 25.222(1) et seq.

MCL 552.452(1); MSA 25.222(2). The substance of the quoted words were added by 1970 PA 153.