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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)



Opinion No. 5877

April 15, 1981


Funds held by Friend of the Court


Disposition of funds held for support of children

Unclaimed funds in a Friend of the Court child support account are subject to escheat in accordance with 1947 PA 329 and may not be deposited in the county general fund.

Scott T. Beatty

Prosecuting Attorney

County Building

Charlevoix, Michigan 49720

You have requested my opinion regarding disposition of funds totaling approximately $1,500 which are in the Friend of the Court Child Support Account in Charlevoix County. You ask specifically if it would be possible to transfer the surplus funds to the County General Fund since the Friend of the Court has been unsuccessful in locating the persons to whom the money should be paid.

The statute which deals with disposition of such funds as are here involved is 1947 PA 329; MCLA 567.21; MSA 26.1053(11), which provides:

'Whenever any officer of a court in this state, including federal courts, or any county officer is in possession of any money or other property collected or received pursuant to an order of court, and such officer is unable to distribute or pay out such money or property to the person or persons entitled thereto as prescribed by such order or decree of court, due to the failure of the distributee or distributees to claim the same, or for the reason that the whereabouts of such distributee or distributees cannot be ascertained and such inability shall continue for a period of 7 years from and after the receipt of such money or property by such officer, then it shall be the duty of such officer to report the same to the state board of escheats as abandoned property in conformity with the provisions of section 6 or 8 hereof.

'Upon the receipt of the report required by this section, the board of escheats shall immediately deliver a copy thereof to the attorney general whose duty it shall be to institute or cause to be instituted a proper suit or proceeding for an adjudication of abandonment and the descent of such property to the state as an escheat as provided in this act: . . ..'

The statute was considered by the Court in Pokorny v County of Wayne, 322 Mich 10; 33 NW2d 641 (1948). In that case, the facts were similar to those which you have described. The Court held that only 'public funds' could be placed into the general county fund. In its opinion the court distinguished between public funds and funds paid to the Friend of the Court (plaintiff in Pokorny) to be held by him until distribution to payees. The Court stated:

'The instant case is a prime example of a situation where the distribution must be drawn between funds held by governmental officers. If we are not to say that all funds held by such officers are public moneys, which we cannot say, then this is clearly a case where such funds must be held not to be public moneys. Here, the plaintiff is merely a depository, he has no interest in these funds other than to collect them and to see that they eventually, if possible, go to those parties entitled to them. These funds were never intended for the use of any public agency or any governmental unit, and to so appropriate them would be a misuse of them. To call these moneys public moneys merely because they have been deposited with the plaintiff would be the same as saying that these funds belong to the bank in which they are deposited, only because they are there so deposited. Such a result would, of course, be ridiculous.

'Notwithstanding the statute, which we construe to be consistent with this holding, public moneys mean those funds which are raised by a governmental unit or agency for the conduct of government and for governmental purposes, and not those funds such as the present, which incidentally fall into the hands of some governmental agent, while such agent is performing his lawful functions. These funds never were intended to belong to the county and were held by plaintiff merely in a fiduciary capacity, not for the benefit of the county, even incidentally, but for the benefit of those parties entitled to them by virtue of appropriate court orders.' Pokorney v Wayne County, supra, 322 Mich 10, 15.

The Court went on to hold that the statute provided specifically for the situation in controversy and, therefore, the fund in question shall escheat to the state.

In view of the foregoing, it is my opinion that unclaimed funds in the Friend of the Court's child support account are subject to escheat in accordance with 1947 PA 329, supra, and may not be deposited in the county general fund.

Frank J. Kelley

Attorney General

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