Child support arrearage; Statute of limitations (SOL) defense; MCL 600.5809(4); Waiver; Distinguishing Alpena Friend of the Court ex rel Paul v Durecki; Wayne Cnty Soc Servs Dir v Yates

The court held that the trial court erred in ruling defendant-father waived his statute of limitations defense to the child support arrearage owed to plaintiff-mother. He argued on appeal that it “erred in concluding that he was required to file an original action and, as a plaintiff, raise the” SOL as an affirmative defense, and in determining MCL 600.5809(4)’s 10-year statute of limitations did not apply. The court agreed. The trial court denied his motion for reconsideration of his motion to terminate income withholding “by concluding that, to avail himself of the 10-year period of limitations, [he] was required to file a complaint and then raise the affirmative defense of the” SOL. But MCL 600.5809(4) “contains no such requirement. The trial court read into the statute prerequisites that simply do not exist.” It also did not “identify the cause of action that defendant would file to obtain relief, and how as a plaintiff, he would raise an affirmative defense.” The court next considered case law addressing the applicable 10-year statute of limitations as to child support arrearages. In the trial court, the FOC relied on Durecki, which the court found factually distinguishable. Defendant’s obligation to pay child support ended on 7/11/10. The 10-year limitations period expired on 7/11/20. He made no payments during that period. In 12/23, “the FOC sent an income withholding order to [his] employer and was able to secure funds through that order. The FOC failed to present evidence that defendant voluntarily made payments between 2010 and 2024 or that he negotiated with plaintiff or the FOC or notified them of his employment and consented to the income withholding order.” Thus, there was no evidence that his actions between 7/11/20 and 1/24 “revived or extended the period.” The court also concluded that its decision in Yates did not support affirmance. It was “undisputed that defendant did not pay child support for more than 10 years . . . when suddenly an income withholding order addressed to [his] employer caused a child support payment to be made on” 1/2/24. Reversed and remanded for entry of an order granting his “motion to terminate the income withholding order and direct repayment of monies obtained under it.”