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### STATE OF MICHIGAN

COURT OF APPEALS

LISA ANN WEAVER, formerly known as LISA ANN WEAVER-GIFFELS,

Plaintiff-Appellee, FOR PUBLICATION November 10, 2016

9:00 a.m.

v No. 327844
Kalamazoo Circuit Court JAMES MICHAEL GIFFELS, LC No. 2010-007630-DM

Defendant-Appellant.

Before: M URRAY , P.J., and H OEKSTRA and B ECKERING , JJ.

M URRAY

, P.J.

Typically a divorced parent’s ch ild support obligation ends wh en the child turns 18 years old, i.e., is no longer a minor. An exception to that rule exi sts, however, when the child turns 18 but is still attending high school and is residing on a “full-t ime basis” with the child support recipient. MCL 552.605b(2). This case presents the question o f what is meant by residing on a
“full-time” basis with the child support recipient. The circui t court, focusing on the parties’ argument over the meaning of “full-time basis,” concluded that residing on a “full-time” basis
meant that the child must stil l be residing with the support re cipient in full compliance with the child custody or parenting time order. We hold that the suppor t order is irrelevant to the analysis, and that an 18-year-o ld child is residing on a “full- time” basis with the support recipient
when the child is residing only with that parent. As a result, we reverse the circuit co urt order to the extent it ruled that compliance with the parenting time ord er constituted “full-time,” and
remand for the trial court to det ermine whether the 18-year-oldresided with her mother on a fulltime basis.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant were married on August 3, 1991, and ha d two children, KG and MG, during the marriage. Plaintiff filed for divorce, and the judgment of divorce eventually entered provided, among other things, that the parties would sh are joint legal and physical custody of the children. Specifi cally, the judgment provided t hat the children would reside primarily with plaintiff while d efendant would have parenting t ime in an amount agreed to by the-2- parties or, if no agreement could be reached, according to the schedule set forth in the judgment. Pursuant to the Uniform Child Support Order, incorporated by re ference into the judgment of divorce, defendant was ordered t o pay a total of $2,000 per mon th in child support. 1 The Uniform Child Support Order provided that defendant’s support o bligation for each child would
continue as follows:

through the end of the month of the later: 1) the child’s 18th birthday, or 2) the last day of regularly attending high school full-time with the reasonable expectation of graduating, as l ong as the child is residing ful l-time with the recipient of support or at an institution, but under no circums tances shall the support obligation continue after the month that the child reac hes age 191⁄2. 2

According to defendant, following entry of the judgment, the pa rties informally agreed to a parenting time arrangement that allowed the children to reside with plaintiff four days per week and with defendant three days per week. That arrangement conti nued for all times relevant to these proceedings.

KG turned 18 years old on November 26, 2014. At that time, sh e was still enrolled in high school, with an expected graduation date in the spring of 2015. After she turned 18, defendant filed a motion in the Family Division of the Kalamazo o Circuit Court praying for an order terminating his support obligation as to KG, retroactive to November 26, 2014. In support, defendant recited the pertinent portion of the Uniform Child Su pport Order providing that defendant’s support obligation ended either (1) at the end of t he month of KG’s 18th birthday or (2) at the end of the month in which KG no longer attended high school full-time while residing on a “full-time basis” with plaintiff. Defendant argued that the latter provision was inapplicable—and thus his suppo rt obligation ended upon KG’s 18 th birthday—because while KG was still enrolled full-time in high school, she did not, no r had she ever, live with plaintiff “on a full-time basis;” instead, the parents shared physical cu stody, with KG spending three days per week with defendant.

A hearing on defendant’s motion was held before a family divis ion referee, who agreed with defendant, concluding that “[t]he statute [MCL 552.605b] i s really quite clear:” it allowed for postmajority child support only where the child is “regular ly attending high school on a fulltime basis, with a reasonable e xpectation of completing suffici ent credits to graduate,” and is living with the recipient of support on a full-time basis. Wit h regard to the term “full-time basis,” the referee opined that the term “means what it says;” i.e., that the child must be living full-time with the recipient of support, not simply the full am ount of time allotted to the recipient under the custody agreement. On the basis of these conclusions , a recommended order was submitted granting defendant’s motion to terminate his support obligation to KG effective November 26, 2014.

1 Specifically, defendant was ordered to pay $1,350 for one chil d and an additional $650 for the second child, for a total of $2,000.

2 The Uniform Child Support Order comports with MCL 552.605b.-3- Plaintiff filed a written objection to the referee’s recommend ed order, asserting that the
referee’s definition of “full-ti me basis,” effectively requirin g KG to reside with plaintiff at all times rather than merely the time allotted to her under the par enting time arrangement, was erroneous. Plaintiff asserted that “it would be unlikely that any child for whom child support is presently being ordered in the S tate of Michigan resides ‘full- time’ with either parent given the progression of shared parenting time, joint custody, etc.” Thu s, she argued, to define the term “full-time basis” in such a way as to require the child to live with the recipient of child support at all times, irrespective of a parenting time arrangement, would lead to an “inequita ble” result, i.e., almost no parent supporting a postm ajority child in high school would receive support.

After a hearing on plaintiff’s objection, the circuit court en tered an order denying defendant’s motion to terminate his support obligation to KG as of her 18th birthday, holding that defendant’s support oblig ation extended beyond KG’s 18th b irthday because she resided with plaintiff in full complia nce with the c ustody order:

The general rule is and has bee n that child support terminates after the child reaches 18 years of age. MCL 552.605B [sic] states an ex ception to the general rule; that is, if a ch ild is regularly attending high s chool on a full-time basis with the reasonable expect ation of completing sufficient credits to graduate from high school while residing on a full-time basis with the r ecipient of support or an institution, no case after the child reaches 19 years and sixth months of age, child support may be ordered. This Court has dealt with many c ases where the
issue of whether the child is re gularly attending high school o n a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school [was in dispute]; however, this is the first case t hat this Court has considered where the issue of “residing on a full-time basis wi th the recipient of support” was at issue. No case law has been found that defines the term “residing full-time”. If full-time means all the time as is suggested by the Defendant and a child resided part-time with the payor of support pursuant to p arenting time which happens in most every case, child support for a child over 18 w ould hardly ever be ordered. If it is analogous to full-time employment, an ind ividual does not work all of the time, but only involving a standard number of h ours of working time, or for the entire time appropriate to an activity. It ma kes more sense that “full-time with the recipient of support” means spending all of the time with the recipient of support that she is ordered to be with, and not so mewhere else like a girlfriend’s, a boyfriend’s, or someone else’s place, and not e ither parent. For example, in the present case, [where] the child spends four day s with the mother and three days with the father, residing full-time with the rec ipient means that the child is residing the full four days with her mother.

Clearly, MCL 552.605(2) [sic] requires courts to use the Michi gan Child Support Formula which accounts for the parenting time split bet ween the parties. 2013 MCSF 3.03(B) says, “An offset for parenting time generally applies to every support determination whether in an in itial determinati on or subsequent modification, whether or not previously given.” This Court does not read MCL 552.605b(2) as conflicting with [the MCSF], otherwise we would have to consider whether any overnights with the payor renders the reci pient’s residence a-4- “part-time” residence, and thereby undermine the intent of the statute and the policies embodied in the Mich igan Child Support Formula.

. . . . Therefore, the Defendant would be required to continu e to pay child support at the ordered rate until the child graduates from high school as long as the child is residing with the mother the four days per week wh ich the child support was based upon.

Following entry of the trial court’s order, we ultimately gran ted defendant’s delayed application for leave to appeal, Weaver v Giffels , unpublished order of the Court of Appeals, entered October 15, 2015 (Docket No. 327844). We now reverse a nd remand for further proceedings. 3

II. ANALYSIS

This Court reviews a trial court’s decision to modify child su pport for an abuse of
discretion. Burba v Burba (After Remand) , 461 Mich 637, 647; 610 NW2d 873 (2000). However, we review de novo any attendant questions of law, whic h of course include the trial court’s interpretation of c ourt rules and statutes. Id .; Neville v Neville (On Remand) , 295 Mich App 460, 466; 812 NW2d 816 (2012). As we observed in Lee v Smith , 310 Mich App 507, 509; 871 NW2d 873 (2015), in determini ng the meaning of a statute,

[a] court’s primary goal when int erpreting a statute is to disc ern legislative intent first by examining the plain language of the statute. Courts c onstrue the words in a statute in light of their ordi nary meaning and their context within the statute as a whole. A court must give effect to every word, phrase, and cla use, and avoid an interpretation that renders any part of a statute nugatory or s urplusage. Statutory provisions must also be read in th e context of the entire act. It is presumed that the Legislature was aware of judicial interpretations of the ex isting law when passing legislation. When statut ory language is clear and unam biguous, courts enforce the language as written. A statutory provision is ambi guous only when it irreconcilably conflicts with ano ther provision or is equally s usceptible to more than one meaning. [Intern al citations omitted.]

If a word or phrase is defined in the statute itself, then it m ust be applied as expressly defined. Sanchez v Eagle Alloy, Inc , 254 Mich App 651, 662; 658 NW2d 510 (2003). “However, where a statute does not define a term, r esort to a dictionary for a de finition is appropriate.” Id

.

It is well-settled that “[t]he parents of a minor child have a duty to support that child.”

Paulson v Paulson , 254 Mich App 568, 571; 657 NW2d 559 (2002), citing Macomb Dep’t of

3 At oral argument before this C ourt, defendant argued that because plaintiff had paid the child support as required by the contes ted order, this appeal was moo t. We have specifically held to the contrary, Dean v Dean , 175 Mich App 714, 722; 438 NW2d 355 (1989), so we must resolv e the merits of this appeal.-5- Social Servs v Westerman , 250 Mich App 372, 377; 645 NW2d 710 (2002). Historically speaking, absent an agreement by the parties, a parent’s obliga tion to pay child support ended when the child reached 18 years of age; i.e., the age of majori ty. MCL 722.21(1)(a); Lee , 310 Mich App at 509-510. In fact, before 1990, courts were without authority to independently order a parent to pay postmajority child support. Smith v Smith , 433 Mich 606, 632-633; 447 NW2d 715 (1989), superseded by statute as explained in Lee , 310 Mich App at 509-510. In 1990, however, the Legislature enacted MCL 552.16a, which provided a narrow exception to the general rule that suppo rt obligations end at the age of majorit y. See 1990 PA 243; Rowley v

Garvin , 221 Mich App 699, 706; 562 NW2d 262 (1997); Lee , 310 Mich App at 510. Specifically, MCL 552.16a provi ded, in pertinent part:

(2) Beginning on the effective date of this section, the court may order support for the time a child is regularly attending high school on a full-t ime basis with a reasonable expectation of complet ing sufficient credits to grad uate from high school while residing on a full- time basis with the payee of su pport or at an institution, but in no case after the child reaches 19 years an d 6 months of age. . . .

See Lee , 310 Mich App at 510; Rowley , 221 Mich App at 705-706.

In 2001, the Legislature repealed MCL 552.16a and replaced it with the current statute, MCL 552.605b, which essentially mirrors the old version. See 2 001 PA 106; 2001 PA 107; Lee

, 310 Mich App at 511. Specifically, in its current form, MCL 55 2.605b provides, in pertinent
part:

(1) A court that orders child support may order support for a c hild after the child reaches 18 years of age as provided in this section.

(2) The court may order child support for the time a child is r egularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no c ase after the child reaches 19 years and 6 months of age. A complaint or motion re questing support as provided in this section may be filed at any time before the child reaches 19 years and 6 months of age.

(3) A support order entered unde r this section shall include a provision that the support terminates on the last day of a specified month, regard less of the actual graduation date.

* * *

(5) A provision contained in a judgment or an order entered und er this act before, on, or after September 30, 2001 [the date the statute took effe ct] that provides for the support of a child after the child reaches 18 years of age is valid and enforceable if 1 or more of the following apply:

(a) The provision is contained in the judgment or order by agre ement of the parties as stated in th e judgment or order.-6- (b) The provision is contained in the judgment or order by agre ement of the parties as evidenced by the approval of the substance of the ju dgment or order by the parties or their attorneys.

(c) The provision is contained in the judgment or order by writ ten agreement signed by the parties.

(d) The provision is contained in the judgment or order by oral agreement of the parties as stated on the record by t he parties or their attorne ys.

MCL 552.605b thus contains two mechanisms for continuing a pare nt’s obligation to pay postmajority support for a child ove r the age of 18. First, under subsection (5), the parties may—as they always could—expressly agree that the parent will continue paying support for the child past the age of 18, regardless of whether the child satisfies t he requirements for support in subsection (2). See Lee , 310 Mich App at 513. Second, un der subsection (2), the trial court has “limited authority” to order postmajority support for children between the ages of 18 and 191⁄2 who meet the requirements se t forth in that subsection. Id

.

The term “full-time basis” is not defined in MCL 552.605b or a nywhere else in the relevant statutes, and neither this Court nor our Supreme Court have previously construed the term as it pertains to the residency requirement. Because the term is undefined, we resort to the dictionary. Sanchez , 254 Mich App at 662. The most closely related definition fro m MerriamWebster’s Collegiate Dictionary (11th ed) is that “full-time” means, “devoting one’s full attention and energies to some thing.” “Full,” however, is defi ned in relevant part as “complete, esp in detail, number or duration.” Id . Together, these definitions reveal that in this context residing on a “full-time” basis means a child must completely reside with the child support recipient for the duration of high school. In other words, for support to continue, the child must

reside 4 only with the support recipien t while completing high school.

Aside from the dictionary def initions, the provisions of sever al related statutes support— if not compel—the conclusion that compliance with the parenting time order is not a factor in deciding what “full-time” means. Initially, MCL 552.17a(1) pro vides that a circuit court has jurisdiction over the custody of a child only until that child reaches the age of 18, while c hild support generally ends at 18 but with two exceptions:

The court has jurisdiction to make an order or judgment relative to the minor children of the 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 for the support of each ch ild until each child attains that age. Subject to section 5b of th e support and parenting time and enforcement act,1982 PA 295, MCL552.605b, th e court may

4 We emphasize “reside” because, as discussed later in this opin ion, that word is of equal importance in resolving this matter.-7- also order support as authorized in this chapter for a child of the parties to provide support for the child after the child reaches 18 years of age. [Emphasis supplied.]

Likewise, MCL 722.27(1)(a) provides that custody can only be aw arded until the child reaches the age of 18:

If a child custody dispute has been submitted to the circuit co urt as an original
action under this act or has aris en incidentally from another a ction in the circuit court or an order or judgment of the circuit court, for the bes t interests of the child the court may do 1 or more of the following:

(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age . [Emphasis supplied]

Hence, these statutes allow a ci rcuit court to exercise jurisdi ction over the custody of a child until she reaches the age of 18, the age of majority, Bowie v Arder , 441 Mich 23, 53; 490 NW2d 568 (1992); Heltzel v Heltzel , 248 Mich App 1, 30; 638 NW2d 123 (2001), but in limited
circumstances a court can orde r child support beyond the child turning 18.

Our Court has recognized these important but differing implica tions under the child custody and support laws from a child turning 18. In Hayford v Hayford , 279 Mich App 324, 327; 760 NW2d 503 (2008), we pointed out that an 18 year old is no longer subject to custody orders, but could be subject to child support orders:

Because petitioner reached majority age before seeking the PPO, the Child Custody Act was inapplicable with respect to custody issues, although it was still applicable regarding child support. The Child Custody Act defines “child” as ‘minor child and children. Subj ect to section 5b of the suppor t and parenting time enforcement act, 1982 PA 295, MCL 552.605b, for purposes of pro viding support, child includes a child and children who have reached 1 8 years of age.’ MCL 722.22(d). MCL 552.605b permits the entry of a child-suppo rt order in certain circumstances for a child who has reached 18 years of a ge. If the child is still in high school, MCL 552.605b provides that support may be ordered until he or she reaches 19 years and 6 months of age. Otherwise, as use d in the Child Custody Act, “child” means a minor. [Emphasis supplied.]

Reaching the age of majority is significant because, as we sai d some time ago, “the Age of Majority Act provides that a p erson who attains eighteen yea rs of age ‘is deemed to be an adult of legal age for all purposes whatsoever and shall have t he same duties, liabilities, responsibilities, rights and le gal capacity as persons heretofo re acquired at 21 years of age.’ ”

Adkins v Adkins , 181 Mich App 81, 83; 448 NW2d 741 (1989), quoting MCL 722.52. See also

Smith , 433 Mich at 614. Once KG turned 18, she was no longer subjec t to the custody order and was free to live with defendant, plaintiff, both (as she did wh en she was subject to the custody order), or somewhere else. But because of MCL 552.605b, she wa s still a “child” for purposes of the child support order, so l ong as the requirements of that statute were met.-8- Turning to the facts, there was no agreement in the parties’ j udgment of divorce obligating defendant, without qua lification, to pay child suppo rt for KG until she obtained the age of 191⁄2. Therefore, defendant’s continuing obligation to pa y child support for KG rested upon whether KG satisfied the requirements of MCL 552.605b(2) a nd the uniform support order incorporated into the divorce judgment; i.e., whether she was r egularly attending high school on a full-time basis with the reasonable expectation of graduating while residing with plaintiff on a full-time basis. As to the first requirement, the record refle cts—and defendant does not dispute—that KG was still attending high school on a full-time basis when she turned 18 on November 26, 2014, 5 and that she expected to graduate the following spring. Thus, the only dispute was whether KG was residing on a “full-time basis” with plaintiff. Based upon the law set forth above, the trial court erred in concluding that KG re sided with plaintiff on a “full-time basis” on the exclusive basis that, after she turned 18, she co ntinued living by the arrangements in the now inapplicable parenting time order.

However, this does not end the inquiry. Although the parties argue exclusively over the meaning of “full-time” basis, equally important—if not more so— is whether KG had the intent to “reside” full-time with the payee. In Kubiak v Steen , 51 Mich App 408, 413-414; 215 NW2d 195 (1974), we set forth both t he legal and popular definitions of “reside.”

The Legislature did not use the word ‘residence’ or ‘domicile’ but ‘resides.’ That the term ‘resides’ may have a different connotation than the te rm ‘residence’ is
without doubt.

‘It has been said that the word ‘reside’ has two distinct meani ngs, and that it may be employed in two senses, and, in what is sometimes referred t o as the strict, legal, or technical sense, it means legal domicile as distinguished from mere residence or place of actual abode. In this sense the word ‘reside’ means legal residence; legal domicile, or the home of a person in contemplation of law; the place where a person is deemed in law to live, which may not al ways be the place of his actual dwelling, and thus the term may mean something di fferent from being bodily present, and does not necessarily refer to the pla ce of actual abode. When employed in this sense, the word ‘reside’ includes not onl y physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.

‘In what is sometimes referred to as its popular sense, the wor d ‘reside’ means the personal, actual, or physical ha bitation of a person; actual re sidence or place of abode; and it signifies being phys ically present in a place and actually staying there. In this sense the term means merely residence, that is, personal residence,

5 With regard to the “regularly attending high school on a full- time basis” provision, this Court previously construed the term “full-time” consistent with the S tate School Aid Act, MCL

388.1601 et seq ., which provides that “students who take nine hundred hours of instruction over the course of a school year are considered ‘full-time’ equivale nt pupils.” Rowley , 221 Mich App at 708-709, citing MCL 388.1606(4)(t).-9- and it does not mean legal residence or domicile.’ (Emphasis s upplied.) 77 C.J.S. Reside, pp 285-286.

Utilizing the legal definition of “reside,” 6 which contains both a physical presence and an intent element, it is quite possible that KG could reside full-time wi th the payee based on her intent to make her mother’s home her permanent residence, while still spe nding some overnights with her father, so long as her intent was to reside full-time with her mother. Because this issue was not
raised before this Court or the t rial court, there are no factu al findings or decision to review. However, that issue must be decided by the trier of fact to pro perly resolve defendant’s motion. In doing so, the trial court should consider, where relevant, t he factors historically considered in determining where an individua l resides or has their domicile:

(1) the subjective or declared int ent of the person of remainin g, either permanently or for an indefinite or unlimited length of time, i n the place he contends is his “domicile” or “household”; (2) the formality or informality of the relationship between the person and the members of the househol d; (3) whether the place where the person lives is in the same house, within t he same curtilage or upon the same premises; (4) the existence of another place of l odging by the person alleging “residence” or “domicile” in the household. [ Workman v DAIIE, 404 Mich 477, 496-497; 274 NW2d 373 ( 1979) (citations omitted). ]

“ ‘In considering these factors, no one factor is, in itself, d eterminative; instead, each factor must be balanced and weighed with the others.’ ” Tienda v Integon National Ins Co , 300 Mich App 605, 615; 834 NW2d 908 (2013), quoting Workman , 404 Mich at 496. 7 The trial court must
make this fact-intensive deter mination, and only after doing so can it decide whether KG resided on a full-time basis with her mother. Consequently, we remand to the trial court for further proceedings consistent with this opinion.

6 The Child Custody Act refers t o the legal connotation of resid e when referring to a child’s legal residence under a custody order. MCL 722.31. See also McGrath v Allstate Ins Co , 290 Mich App 434, 443; 802 NW2d 619 (2010) (stating that “reside” may ha ve a legal or technical meaning under the Child Custody Act as recognized in Heniser v Frankenmuth Mut Ins Co , 449 Mich 155, 163; 534 NW2d 502 (1995)). Although the custody orde r is no longer applicable to KG, the fact that the Legislatur e utilized that connotation is relevant to how we construe that
term in a related statute.

7 The Workman factors are relevant to the determination of where KG resides, even though

Workman dealt with deciding one’s domicile, a term not specifically referenced in the statute. This is so because (1) the legal d efinition of “reside” relates that term to domicile, Kubiak , 51 Mich App at 413; (2) domicile and residence are sometimes treat ed as having the equivalent meaning under Michigan law, Grange Ins Co v Lawrence , 494 Mich 475, 498-499; 835 NW2d 363 (2013), which is the case with MCL 552.605b(2), as it denot es a more permanent, singular residence by associating “reside” with “full-time basis.” See Tienda , 300 Mich App at 615 (Noting that “the Workman Court set forth the following nonexhaustive list of factors to determine whether a person res ides or is domiciled in an insure d’s household.”).-10- Reversed and remanded for further proceedings. We do not reta in jurisdiction. No costs, an issue of first impressi on being involved. MCR 7.219(A).

/s/ Christopher M. Murray
/s/ Joel P. Hoekstra