The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5114

February 18, 1977

ADOPTION OF CHILDREN:

Child Care Fund

SOCIAL SERVICES, DEPARTMENT OF:

Reimbursement to Child Care Fund for court-ordered support of adopted children

CHILDREN AND MINORS:

Child Care Fund

STATUTES:

Retroactive effect

The amount of an adoption subsidy prescribed by the Michigan Adoption Code, 1974 PA 296, may not be retroactively applied to court orders of adoption entered after January 1, 1975.

If a statute is to have retroactive effect, the legislature must indicate this intent in clear, direct and unequivocal terms.

Dr. John T. Dempsey

Director

Department of Social Services

Eighth Floor

Commerce Building

Lansing, Michigan 48926

You have requested my opinion on a question involving the Michigan Adoption Code, 1939 PA 288, Ch X; MCLA 710.21 et seq; MSA 27.3178(555.21) et seq, as added by 1974 PA 296 [hereinafter 'the Adoption Code'].

The Adoption Code, section 48, provides for certain court ordered support subsidies and requires the Department of Social Services to reimburse the Court Child Care Fund in the total amount of the subsidy. Section 48(1) sets the maximum subsidy that may now be ordered at an amount equal to the existing foster care rate, which ranges from $108.30 to $161.10 per month. This rate represents an increase in the maximum of $50.00 previously established by 1939 PA 288, Ch X, Sec. 13a. In the context of these statutory enactments you have asked:

'Is a court in conformity with the Michigan Adoption Code, P.A. 296 of 1974, when, for a case commenced before January 1, 1975, it issues an adoption subsidy support order at the higher established rate allowable for cases commenced after January 1, 1975?'

Section 70 of the Adoption Code reads as follows:

'(1) Adoption proceedings commenced before January 1, 1975, shall be consummated according to the provisions of this chapter which were in effect at the time the petition was filed, except that sections 64 and 65 shall apply to orders entered after January 1, 1975.

(2) An order of adoption entered before January 1, 1975, in conformity with the law then in effect is not affected or impaired by the repeal of sections 1 to 14 of this chapter, as amended.'

This section makes it clear that the legislature did not intend the Adoption Code to be applied to petitions filed before January 1, 1975. In addition, although the Adoption Code was ordered to be given immediate effect, section 3 of the act itself provides:

'This amendatory act shall take effect January 1, 1975.'

The gist of the question you have asked is whether the Adoption Code may be applied retroactively to petitions filed before January 1, 1975, contrary to the obvious legislative intent stated in section 70(1), supra.

It is a fundamental rule of law that, if a statute is to have retroactive effect, the legislature must give a clear, direct and unequivocal expression of its intent to that effect. In Olkowski v Aetna Casualty & Surety Co, 53 Mich App 497, 503; 220 NW2d 97 (1974), the Court of Appeals quoted from the Supreme Court Opinion in Detroit Trust Co v Detroit, 269 Mich 81, 84; 256 NW 811 (1934), as follows:

'We think it is settled law as a general rule in this state, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself.'

In Detroit Trust Co v Detroit, supra, the Supreme Court stated:

'Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute taken by themselves and in connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.' 269 Mich 81, 84; 256 NW 811, 813. (Emphasis Supplied)

See, Chesapeake and Ohio Railway Co v Michigan Public Service Comm, 382 Mich 8; 167 NW2d 438 (1969); Swift v Dodson, 6 Mich App 480; 149 NW2d 476 (1967); Moore v Parole Board, 4 Mich App 261; 144 NW2d 670 (1966), reversed on other grounds 379 Mich 624; 154 NW2d 437 (1967).

Therefore, the answer to your question is that 1974 PA 296 may not be applied to petitions filed before the effective date of the act. As there is no clear expression of legislative intent to apply 1974 PA 296 retroactively, and as the intent to have it apply prospectively only is clearly stated in the act itself, it is my opinion that adoption subsidy support orders entered on petitions that were filed before January 1, 1975 must be made under the former Adoption Code. Therefore, the subsidy amounts as increased under 1974 PA 296, supra, may only be applied prospectively, to petitions filed after January 1, 1975.

Frank J. Kelley

Attorney General