author: D. C. Riley, P.J. Bronson, J.

text:
    PEOPLE v HOOKS
    Docket No. 77-4902.
    Submitted November 20, 1978, at Detroit.
    Decided March 19, 1979.
    Phyllis Hooks was convicted, on her plea of guilty, of issuing a check without account or credit and was sentenced to a term of probation. Subsequently, she was charged with violation of probation for having three times been convicted of larceny under $100 and for not reporting to her probation officer. She pled guilty to the probation violations and was sentenced to imprisonment for a term of 1 year 11 months to 2 years, Recorder’s Court of Detroit, Thomas L. Poindexter, J. Defendant appeals, alleging that she was not advised of her right to a probation violation hearing and that her sentence is in violation of the indeterminate sentencing act. Held:

    1. The defendant was sufficiently advised of her right to a hearing on the probation violation charge where she was given sufficient notice of the violation which informed her of a hearing and her right to present witnesses, where she was fully represented by counsel, and clearly admitted her probation violations to the court. In addition, any error would not be prejudicial because the violations forming the basis for the revocation were three unappealed convictions, and the defendant was aware of her opportunity to present extenuating circumstances to be considered in sentencing.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 495, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    Comment note — Procedural requirements, under Federal Constitution, applicable to revocation of probation or parole. 36 L Ed 2d 1077.

       21 Am Jur 2d, Criminal Law §§ 540, 592.

       21 Am Jur 2d, Criminal Law §§ 19, 585.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 15.
    Court’s right in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant. 96 ALR2d 768.

       21 Am Jur 2d, Criminal Law §§ 567, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    Comment note — Procedural requirements, under Federal Constitution, applicable to revocation of probation or parole. 36 L Ed 2d 1077.

      2. The indeterminate sentencing act applies to the defendant, regardless of whether her previous convictions were punishable by more than one year in prison and therefore qualify as felonies for purposes of the indeterminate sentencing act, because the defendant has not been charged in a supplemental proceeding as a habitual offender. Her minimum sentence should be no more than two-thirds of the maximum.
    Affirmed, but sentence modified.
    Bronson, J., dissented. He would reverse the defendant’s conviction because there is no indication in the record that the defendant had read the notice of violation and was aware of her right to a hearing and that she understood what that right entailed.
    Opinion op the Court
    1. Criminal Law — Probation Violation — Right to Hearing — Plea op Guilty — Waiver.
    A probationer charged with violating the terms of probation must be advised of his right to a hearing on the charge before a trial court may accept a plea of guilty, and if the probationer is so informed, his subsequent plea of guilty waives his right to such a hearing.
    2. Criminal Law — Probation Violation — Right to Hearing.
    A probationer was sufficiently advised of her right to a probation violation hearing where she was given sufficient notice of the violation which informed her of a hearing and her right to present witnesses, where she was fully represented by counsel, and clearly admitted her probation violations to the court; any error in the proceeding would not be prejudicial because the violations forming the basis for revocation of probation consisted in part of three convictions from which no appeal was taken, and the defendant pled guilty while aware of her opportunity to present extenuating circumstances to be considered in sentencing.
    3. Criminal Law — Sentencing — Indeterminate Sentencing Act — Jail Sentences — Statutes.
    The indeterminate sentencing act does not apply to any jail sentence imposed pursuant to the statute regarding commitments or sentences to incarceration for a maximum of one year or less (MCL 769.8, 769.28; MSA 28.1080, 28.1097[1]).
    4. Criminal Law — Felony — Misdemeanor — Sentencing — Indeterminate Sentencing Act — Statutes.
    A felony is defined by the Code of Criminal Procedure as an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than one year or an offense expressly designated as a felony; therefore, if a defendant’s previous convictions were punishable by more than one year’s incarceration, even though qualifying as misdemeanors under other statutory provisions, they should be treated as felonies for purposes of the code, including the indeterminate sentencing act (MCL 761.1[g], 769.8; MSA 28.843[g], 28.1080).
    5. Criminal Law — Habitual Offenders — Sentencing — Indeterminate Sentencing Act — Statutes.
    A defendant who is chargeable under the Code of Criminal Procedure as a habitual offender because of previous felony convictions ' but against whom no supplemental proceedings have been instituted is to be afforded the protection of the indeterminate sentencing act, and the minimum sentence imposed may be no more than two-thirds of the maximum (MCL 769.8; MSA 28.1080).
    Dissent by Bronson, J.
    6. Criminal Law — Violation of Probation — Right to Hearing.

      It cannot be assumed from a silent record that a defendant knew that he or she had a right to a probation revocation hearing and intelligently and voluntarily waived that right; therefore, when the trial court has not personally informed a defendant of this right to a hearing and there is no indication anywhere in the record that the defendant had read any other notice of the right or had otherwise been made aware of the right, the probation revocation should be reversed and the case remanded for a revocation hearing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.

      John C. Mouradian, for defendant.

      Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. C. Riley, P.J.

This is an appeal from a probation revocation. Phyllis Hooks pled guilty to issuing a check without account or credit, MCL 750.131a; MSA 28.326(1), in February of 1972. She was sentenced to a term of 3 years probation, the first 6 months to be served in the Detroit House of Correction. On September 13, 1976, a notice of probation violation was filed, charging that during probation, defendant had three times been convicted of larceny under $100, MCL 750.356; MSA 28.588, and further had not reported to her probation officer since April 20, 1976. Apparently no appeals have been taken from the larceny convictions.

Defendant’s probation violation notice included the following provision:

"Wherefore this Court is requested to issue a warrant for probationer’s apprehension and detention pending a hearing and to set a date for a hearing on said alleged violation.
"Defendant to be notified by a service of a copy of the petition and of this order, to present witnesses if he desires.”

At a later hearing before the court the ensuing colloquy occurred:

"THE COURT: * * * Now, have you — do you have a copy of that notice of probation violation?
"MS. HOOKS: Yes.
"THE COURT: And you’ve seen this thing and the Court appointed Mr. Arduin as your attorney in the case. Are you satisfied with his representation?
"MS. HOOKS: Yes.
"THE COURT: All right. How does she plead as to — .
"MR. ARDUIN: She pleads guilty, your Honor, to the charge of violation of probation and she has extenuating circumstances and places herself upon the mercy of the Court.
"THE COURT: What extenuating circumstances are there for having criminal convictions while she’s on probation?
"MR. ARDUIN: Oh, that, your Honor, she does not deny but she has served the first six months as your Honor has ordered. * * *”

Defendant’s probation was revoked and sentence was imposed of 1 year 11 months to 2 years.

Defendant initially alleges on appeal that she was not advised of her right to a probation violation hearing. There is no doubt that a defendant charged with breaching the terms of probation is afforded certain minimal procedural due process rights, including a contested hearing on the charge. MCL 771.4; MSA 28.1134, People v Michael Brown, 72 Mich App 7, 10-12; 248 NW2d 695 (1976). This Court has frequently held that a probationer must be advised of that right before a guilty plea can be accepted, and if so informed, defendant waives the right by the subsequent plea. People v Michael Brown, supra, People v Allen, 71 Mich App 465; 248 NW2d 588 (1976), People v Hardin, 70 Mich App 204; 245 NW2d 566 (1976).

Defendant relies on People v Radney, 81 Mich App 303; 265 NW2d 128 (1978), and People v Michael Brown, supra. In Radney defendant appeared before the court for arraignment without an attorney present, and in response to the court’s questioning stated that he had no answer to the charges. It was held that neither the form language on the notice of violations nor the trial judge’s mention of the word "hearing” in his eolioquy with defendant was sufficient to inform the defendant of his right to rebut the charges. Significantly, however, the Court noted that the record did not show that defendant had, in fact, admitted the charged violations.

In Brown, defendant was served with written copies of charges of probation violation. Defendant appeared at the hearing, rejected the trial judge’s offer of appointed counsel and admitted the probation violations. The Court reversed the revocation of defendant’s probation because "defendant was not informed on the record of the possibility of a hearing”, 72 Mich App at 14, and because the Court could not find anything in the record before it which indicated that defendant was aware of the availability of a hearing.

The prosecution argues that both Radney and Brown are distinguishable from the instant case. We see merit in this contention. Here defendant was given sufficient notice of probation violation. Defendant was fully represented by counsel and clearly admitted her probation violations to the court. In People v Darrell, 72 Mich App 710, 713-714; 250 NW2d 751 (1976), a bench warrant was served on the defendant, notifying him of the charges and containing language similar to the present case:

"Wherefore, Your Petitioner Prays that a Bench Warrant be issued for the apprehension and detention of said probationer pending violation hearing by this court to determine whether or not said probation order shall be revoked.”

As defendant was represented by counsel and also admitted the probation violation, the Darrell Court concluded that, under the totality of the circumstances, defendant’s due process procedural rights were adequately safeguarded, despite the fact that the defendant had not been told on the record by the trial judge of his right to a contested hearing.

Although we note the existence of a disavowed intent to impose a "checklist format” on trial judges, see People v Gaudett, 77 Mich App 496, 501-502; 258 NW2d 535 (1977), we affirm our concern for close adherence to those due process rights given defendants involving probation revocation. Nevertheless, under the present facts, any error was, as a practical matter, non-prejudicial inasmuch as the violations forming the basis for probation revocation consisted in part of three convictions from which no appeal was taken. See People v Darrell, supra at 713. Unlike situations where the grounds for revocation are subject to refutation, convictions leave a defendant little room for polemics. The record also suggests that defendant pled guilty while aware of her opportunity to present extenuating circumstances to be considered in sentencing.

Defendant next alleges that her sentence of 1 year, 11 months to 2 years contravenes the provisions of the indeterminate sentencing act, MCL 769.8; MSA 28.1080, and therefore runs afoul of the rule promulgated in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The statute provides that:

"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. * * *”

Tanner held that a sentence which exceeds two-thirds of the maximum does not comply with the act. Thus, if the indeterminate sentencing act applies to the instant case, the trial judge’s imposition of sentence was erroneous.

The prosecution maintains that reference to MCL 769.8; MSA 28.1080 is inappropriate since defendant had been convicted of misdemeanors antecedent to the offense at bar. It argues that misdemeanors are crimes and that the punishment for some misdemeanors includes imprisonment in the Detroit House of Correction (hereinafter referred to as DeHoCo).

The act applies "[w]hen any person [is] convicted for the first time of crime” punishable by terms of imprisonment in the enumerated facilities. All the facilities are state prisons with the exception of DeHoCo.

DeHoCo plays a unique and dual role in the state’s corrections system. It operates as an equivalent to a state prison when, pursuant to MCL 802.51; MSA 28.1841, it receives women prisoners convicted of crimes or offenses punishable by imprisonment in a state prison. However, DeHoCo is classified as an equivalent to a county jail by MCL 769.28; MSA 28.1097(1). That section provides that persons convicted of crimes punishable by imprisonment for a maximum of one year or less shall be sentenced to a county jail or to DeHoCo and not to the state penal institution.

This Court has held that the indeterminate sentencing act is inapplicable to any jail sentence imposed pursuant to MCL 769.28; MSA 28.1097(1). People v Lyles, 76 Mich App 688; 257 NW2d 220 (1977), People v Leonard, 51 Mich App 368; 214 NW2d 888 (1974), lv den 391 Mich 827 (1974). These cases would suggest that the act applies only to DeHoCo’s role as a state prison.

The record fails to disclose the circumstances surrounding defendant’s previous misdemeanor convictions. Nevertheless, it is unnecessary to remand this case to determine whether defendant’s prior convictions were punishable by more than one year in prison, for the result in either situation requires modification of the present sentence.

If defendant’s misdemeanors were punishable by less than one-year imprisonment, defendant’s present felony conviction, for the reasons cited above, would be governed by the indeterminate sentencing act and Tanner would therefore apply. At the same time, however, the definitional section of the Code of Criminal Procedure, MCL 760.1 et seq.; MSA 28.841 et seq., of which the indeterminate sentencing act is a part, interprets a felony as "an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year or an offense expressly designated by law to be a felony”. MCL 761.1(g); MSA 28.843(g).

If defendant’s previous convictions were punishable by more than one year, even though qualifying as misdemeanors under other statutory provisions outside the Code of Criminal Procedure, they would be treated as felonies for purposes of those laws contained in the code, which laws include the indeterminate sentencing act.

In Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978), the Michigan Supreme Court held that defendants, chargeable under the Code of Criminal Procedure as habitual offenders, MCL 769.10-769.12; MSA 28.1082-28.1084 (because of previous felony convictions), against whom no supplemental proceedings were instituted are to be afforded the protection of the act and the concurrent benefit of Tanner.

Thus, according to either possibility, defendant’s sentence for issuing a check without account or credit is modified to 1 year 4 months to 2 years.

Affirmed in part, modified in part.

T. Gillespie, J., concurred.

Bronson, J.

(dissenting). I dissent for the reasons stated in People v Radney, 81 Mich App 303, 307; 265 NW2d 128 (1978), People v Darrell, 72 Mich App 710, 714; 250 NW2d 751 (1976) (Bronson, J., dissenting), and People v Michael Brown, 72 Mich App 7; 248 NW2d 695 (1976).

Defendant was given a notice of violation which stated that she had a right to a hearing. I would affirm defendant’s conviction even in the absence of the court directly informing the defendant of her right to a hearing if there had been any indication on the notice itself or anywhere in the record that defendant had read the notice and was aware of her right to a hearing and understood what that right entailed. However, there was no such indication. I cannot assume from a silent record that defendant knew that she had a right to a hearing and intelligently and voluntarily waived that right. I would reverse.

       MCL 771.4; MSA 28.1134 provides that if probation is terminated or revoked, the trial court may sentence a probationer in the same manner and to the same penalty as it might have done if the probation order had never been made. The maximum jail term upon conviction of issuing a check without account or credit in violation of MCL 750.131a; MSA 28.326(1) is 2 years.

       This result is also necessary to avoid a constitutional problem with the indeterminate sentencing act. It appears that the only way a person can be sent to DeHoCo under MCL 769.28; MSA 28.1097(1) is if the county board of supervisors of the county in which a defendant was convicted has an agreement with DeHoCo that the county could send its prisoners there. MCL 802.8; MSA 28.1818. If the indeterminate sentencing act were to apply to DeHoCo’s role as a county jail, it would present serious equal protection problems since the statute would distinguish between prisoners sentenced from a county which has an agreement with DeHoCo and those sentenced from counties which had no such agreement. .

       See, e.g., MCL 750.324; MSA 28.556, which defines negligent homicide as a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years or by a fine of not more than $2,000, or by both such fine and imprisonment.

       MCL 761.1(g); MSA 28.843(g) was amended in 1974 by 1974 PA 63, § 1. The previous definition of felony was "an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison”. Assuming any of defendant’s previous convictions predate the amendment, the result would remain the same by virtue of MCL 769.28; MSA 28.1097(1) which requires that persons convicted of crimes punishable by imprisonment for one year or less shall not be sentenced to the state penal institution.


source: Caselaw Access Project

author: D. E. Holbrook, Jr., J.

license: Public Domain

text:
    LOCAL 1383 OF THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO v CITY OF WARREN
    Docket No. 77-5147.
    Submitted October 11, 1978, at Detroit.
    Decided March 19, 1979.
    Leave to appeal applied for.
    Local 1383 of the International Association of Fire Fighters, AFL-CIO, executed a collective bargaining agreement covering wages, hours and conditions of employment for members of the fire department for the City of Warren. The contract provided that seniority and its application shall be governed by the firemen and policemen civil service act except that promotions were to be based upon seniority and reasonable qualifications as determined by the fire department after consultation with the union. The city Fire Commissioner submitted a list of names to the Civil Service Commission from which he would make promotions. The Civil Service Commission advised the Fire Commissioner that the firemen and policemen civil service act required that the qualifications and fitness of firemen for promotions be ascertained through competitive examinations and that that civil service act was constitutional because the city’s electors had never voted to rescind or repeal the act’s effectiveness. Local 1383 then filed an action against the City of Warren and the Police and Fire Civil Service Commission for the City of Warren for a declaratory judgment in Macomb Circuit Court. Subsequently, both parties filed motions for summary judgment. Walter P. Cynar, J., granted summary judgment to defendants finding that the agreement to promote firemen through selection by the fire department after consultation with the union was void and of no effect because of its conflict with the firemen and policemen civil service act and the charter of the City of Warren. Plaintiff appeals. Held:

    1. The firemen and policemen civil service act provides that qualifications and fitness for appointments and promotions of firemen can only be ascertained by competitive examinations. Once the civil service act was adopted by the City of Warren it remained in full force and effect and prevailed over any conflicting provisions in the collective bargaining agreement between the local and the City of Warren.

      References for Points in Headnotes

       15A 15A Am Jur 2d, Civil Service §§ 38, 41.

       15A Am Jur 2d, Civil Service § 9.

       48A Am Jur 2d, Labor and Labor Relations §§ 1770, 1790-1792.

       51A Am Jur 2d, Civil Service §§ 1, 2, 27.
    56 Am Jur 2d, Municipal Corporations § 110.

       48A Am Jur 2d, Labor and labor Relations § 1764 et seq.

       48 Am Jur 2d, Labor and Labor Relations §§ 1799,1800.

      2. A constitutional provision insures that no merit system for public employees can be modified without a vote of a majority of the electors of the political entity involved. The constitution controls conflicting provisions in a collective bargaining agreement; therefore, an attempt to change the procedure for appointment and promotion of firemen without having held an election is in violation of the constitution and the contract provision in the bargaining agreement is void and unenforceable.
    Affirmed.
    1. Labor Relations — Municipal Corporations — Firemen and Policemen — Civil Service — Appointments and Promotions — Examinations — Statutes.
    The firemen and policemen civil service act establishes a merit promotional system for policemen and firemen, and under that act qualifications and fitness for appointments and promotions can be ascertained only by competitive examinations (MCL 38.507; MSA 5.3357).
    2. Labor Relations — Municipal Corporations — Firemen and Policemen — Civil Service — Public Vote — Repeal — Statutes.
    A public vote is required to establish a civil service system for firemen and policemen in a city; once the system has been adopted, the firemen and policemen civil service act continues in full force and effect until rescinded and repealed by a majority of the electors at an election at which the question of rescission and repeal has been properly presented (MCL 38.518; MSA 5.3369[1]).
    3. Labor Relations — Municipal Corporations — Collective Barbaining — Public Employer — Statutes.
    The public employment relations act requires a public employer to bargain collectively with its employee’s representative with respect to wages, hours, and other terms and conditions of employment (MCL 423.215; MSA 17.455[15]).
    4. Municipal Corporations — Public Employees — Merit Systems — Appointments and Promotions.
    Merit systems for appointments and promotions of public employees, once properly adopted by a unit of local government, cannot be modified without a vote of the electorate of the political entity involved (Const 1963, art 11, § 6).
    5. Labor Relations — Public Employees — PERA — Constitutional Law.
    The public employment relations act (PERA) is the dominant law regulating public employee relations with public employers; however, the statutory provisions of PERA do not control over conflicting constitutional provisions.
    6. Labor Relations — Collective Bargaining Agreements — Legal Standards — Constitutional Law.
    Contract provisions in collective bargaining agreements are unenforceable where such provisions violate another applicable legal standard; while parties involved in collective bargaining are permitted wide latitude in their own contractual agreements, such agreements cannot disregard other laws or be in conflict with the constitution.

      Gregory, Van Lopik & Korney, for plaintiff.

      John J. Murray, Chief Assistant City Attornéy, for defendants.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr. and N. J. Kaufman, JJ.
   D. E. Holbrook, Jr., J.

Plaintiff is a labor organization and is the recognized collective bargaining representative of all employees of the fire department of the City of Warren, except the Fire Commissioner and civilian employees. Pursuant to this relationship, plaintiff and defendant City of Warren executed a collective bargaining agreement covering wages, hours and conditions of employment for those members of the fire department of the City of Warren represented by plaintiff. This contract provided in part as follows:

"Article 12 — Seniority
"(a) Seniority and its application shall be governed by the provision of Act 78, Public Acts of 1935, except as provided in Section (b) below.
"(b) It is agreed that the promotional system for employees in the Local 1383 bargaining unit shall provide for promotions based upon seniority and reasonable qualifications as may be determined by the Fire Department after consultation with the union.”

Pursuant to this agreement the Fire Commissioner advised the Police and Fire Civil Service Commission for the City of Warren that he was in the process of qualifying men for the next higher position and would submit a list of names to the Civil Service Commission from which he would make promotions. The Civil Service Commission responded by advising the Fire Commissioner that under 1935 PA 78, as amended, MCL 38.501 et seq.; MSA 5.3351 et seq., the Police and Fire Civil Service Commission ascertains through competitive examinations the qualifications and fitness for promotions for any paid members of the fire department. Further the Commission indicated it was unaware of any election in which the electors of the City of Warren had voted to rescind or repeal the act’s effectiveness within the City of Warren. Plaintiff then filed an action for declaratory judgment claiming that the terms of the collective bargaining agreement prevailed over any contrary provisions of 1935 PA 78, as amended, and/or any rules or regulations adopted pursuant to the act. Both parties filed motions for summary judgment. The trial court granted summary judgment to defendants finding that art 12, § (b) of the agreement between the parties was void and of no effect because of its conflict with 1935 PA 78 and the Warren charter. From this order plaintiff appeals as of right.

On appeal plaintiff argues that promotional criteria for firemen is a mandatory subject of bargaining under PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq., thus making it proper to include a provision concerning promotional criteria within the collective bargaining agreement. Plaintiff further contends that the provision concerning promotions contained in the collective bargaining agreement, which was entered into under the authority of PERA, controls over contrary provisions of the firemen and policemen civil service act which was incorporated by reference in the charter of the City of Warren. We disagree with the plaintiff and affirm the trial court.

The firemen and policemen civil service act, 1935 PA 78, MCL 38.501 et seq.; MSA 5.3351 et seq., establishes a merit promotional system for policemen and firemen. The statute provides specifically that,

"On or after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of cities, villages or municipalities of any population whatsoever shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said departments regardless of rank or position, in any fire or police department of any city, village or municipality in the state of Michigan, in any manner or by any means other than those prescribed in this act.” MCL 38.507; MSA 5.3357.

Section 12 of the act specifies the procedure to be followed to accomplish any promotion. In order to establish an Act 78 civil service system a vote of the public is required. Once Act 78 has been adopted by a city, the act itself is explicit concerning the method of rescinding or repealing the established civil service system. The act states:

"The foregoing provisions of this act shall continue in full force and effect in any city, village or municipality at which it has been properly adopted until rescinded and repealed by a majority of the electors voting thereon at an election at which the question of rescission and repeal of this act for that city, village or municipality is properly submitted.” MCL 38.518; MSA 5.3369(1).

In 1956 a proposed charter for the City of Warren, which incorporated by reference Act 78, was adopted by the electors. The Police and Fire Civil Service Commission for the City of Warren created by this voter approval has continued in existence since there has been no repeal or rescission of the commission by a vote of the electors as required by MCL 38.518; MSA 5.3369(1).

Pursuant to the authority granted to the Legislature by Const 1963, art 4, § 48, the Legislature enacted the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. Section 15 of PERA sets forth the collective bargaining responsibilities of the public employer and the representative of the employees. Under this section the standards and criteria for promotion are "terms and conditions of employment” and the mandatory subject of collective bargaining. Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 494; 233 NW2d 49, lv den, 395 Mich 756 (1975), reh den, 396 Mich 989 (1976). Pursuant to this obligation to bargain, the City of Warren and Local 1383 concluded a contract which included the contested Article 12. The provisions of this article, if implemented, would modify the existing Act 78 civil service system without a vote of the electors of the City of Warren as required by MCL 38.518; MSA 5.3369(1).

Implementation of Article 12 of the collective bargaining agreement would also conflict with Const 1963, art 11, § 6, which states that:

"By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis.”

The intent of this constitutional provision was to insure that no merit system for public employees would be modified without a vote of the electorate of the political entity involved.

While the Michigan Supreme Court has construed PERA to be the dominant law regulating public employee relations, Rockwell v Crestwood School Dist, 393 Mich 616, 629; 227 NW2d 736 (1975), it has held that the statutory provisions of PERA do not control over conflicting constitutional provisions. In Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96, 109; 204 NW2d 218 (1973), the Court stated that some conditions of employment normally the subject of collective bargaining under PERA could not be a subject of bargaining because there would be a violation of Const 1963, art 8, § 5. Were the instant conflicts solely between the statutory provisions of PERA and Act 78, we would probably find Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974), controlling so as to require a finding that the provisions of the collective bargaining agreement prevailed over conflicting Civil Service Commission promotional guidelines. However, in the face of conflict with Const 1963, art 11, § 6, we hold that the provisions of the collective bargaining agreement cannot modify or alter an existing civil service system.

Holding as we do concerning the conflict between PERA and the Const 1963, art 11, § 6, we affirm the decision of the trial court that Article 12 of the collective bargaining agreement is void. Implementation of this article would violate the mandate of Const 1963, art 11, § 6. While the parties involved in collective bargaining are permitted wide latitude in their own contractual agreement, the agreement reached may not disregard other laws. United Mine Workers of America v Pennington, 381 US 657; 85 S Ct 1585; 14 L Ed 2d 626 (1965). Where, as in this instance, part of the agreement reached does violate another applicable legal standard, the contract provision is unenforceable. Detroit Police Officers Ass’n v Detroit, supra at 54, fn 6.

Affirmed. No costs, a public question being involved.

       MCL 38.512; MSA 5.3362.

       MCL 38.517a; MSA 5.3368 states:
      "The foregoing provisions of this act shall not take effect in any city, village or municipality until approved by a majority of the electors voting thereon at an election at which the question of adoption of this act for that city, village or municipality is properly submitted.”

       MCL 423.215; MSA 17.455(15) states:
      "A public employer shall bargain collectively with the representatives of its employees as defined in section 1Í and is authorized to make and enter into collective bargaining agreements with such representatives. For the purpose of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times to confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

         The debate concerning intent behind Const 1963, art 11, § 6, is found at 2 Official Record, Constitutional Convention 1961, pp 2796-2797:
      "Mr. Allen: Mr. President, may I ask a question of Mr. Martin?
      "President Nisbet: Mr. Martin.
      "Mr. Allen: I wonder how this would be interpreted. I know the intent here is to broaden civil service opportunities for local units of government but I wonder if, inadvertently, there may not be some narrowing of it in this sort of situation. The city charters of some of our cities provide that the local governing body may put in a civil service plan. This is done by ordinance and it is not referred to a vote of the people. However, when the charter was adopted, the people voted on the charter. Now, I am wondering, under the language which is offered here, whether or not a city which has a charter which authorizes the city council to put in a civil service plan without a vote of the people would be permitted to do so.
      "Mr. Martin: Mr. President, Mr. Allen, I think it would. I think that the provisions of the charter would, in that case, control the rights of the people in that particular community, that charter having been adopted under the home rule provisions.
      "Mr. Allen: The language, Mr. Martin, if literally read, seems to say that the ordinance and resolution must be approved by a vote of the people.
      “President Nisbet: Mr. Martin.
      “Mr. Martin: Mr. Allen, if you wanted to make it clear by an amendment that the provisions of home rule charter shall in any event prevail, I would see no objection to that. The committee certainly would not object, I’m sure.
      "Mr. Allen: Could I ask another question in connection with the same thing? We have also a number of cities which in their charter have provided, or even by an ordinance which had been referred to a vote of the people, have set up a civil service plan, but then they want to abolish it or they want to modify it in some way. Would your amendment require, in case civil service was to be given up, a vote of the people, even though the city charter provided that the city counsel could do it on its own vote?
      "Mr. Martin: Mr. President, I think not. I think the local governing body would have authority in that situation without a further vote of the people. The vote of the people refers to — let’s see, reading it here —refers to 'establish, modify or discontinue.’ I’m sorry, I’ll change my answer. I think a vote of the people would be required to modify or discontinue.
      "Mr. Allen: Despite what the charter said?
      "Mr. Martin. No. I am proposing that we add a sentence to the effect that no part of this proviso or this proposal, section, shall in any way abrogate the provisions of existing charters.
      "Mr. Allen: Mr. President, I don’t have such an amendment ready; because this language having just come in, there hasn’t been the opportunity. I would be willing to have style and drafting do this.
      "Mr. Martin: We have no objection to that, Mr. Allen.
      "Mr. Allen: As long as our intent is clearly understood.
      "Mr. Martin: It is clearly understood.
      "Mr. Allen: That will be satisfactory. Thank you.”

       Our decision should not be read as prohibiting bargaining on this subject. In this instance it is not the actual bargaining that violates the Constitution of 1963, art 11, § 6, but rather the effect of the implementation of the agreement reached.


author: J. H. Gillis, J.

text:
    LEARY v RUPP
    Docket No. 77-5228.
    Submitted January 16, 1979, at Detroit.
    Decided March 20, 1979.
    Leave to appeal applied for.
    Jane F. B. Leary and Cornelius F. Leary, her husband, brought a complaint against Edson Rupp, M.D., and William Beaumont Hospital alleging medical malpractice in the treatment of Jane Leary. The hospital was subsequently dismissed from the action by stipulation of the parties. The Oakland Circuit Court, Richard D. Kuhn, J., thereafter granted the motion of defendant Rupp for accelerated judgment based on the two-year statute of limitations for medical malpractice. Plaintiffs appeal. Held:

    1. An action based on malpractice of a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice.
    2. Accelerated judgment grounded on the statute of limitations is improper, in an action alleging medical malpractice, where material factual disputes exist regarding discovery of the asserted malpractice.
    3. In order to discover asserted malpractice a person must know of the act or omission itself and have good reason to believe the act itself was improper or was done in an improper manner; under certain circumstances mere knowledge of the act will be sufficient because it alone gives good reason to believe it was improper.
    4. The accelerated judgment should not have been granted since the parties disputed the date plaintiff discovered or by reasonable diligence could have discovered the asserted malpractice and reasonable minds could differ as to when she should have realized that the doctor had acted improperly.
    Reversed and remanded.
    References for Points in Headnotes

       51 Am Jur 2d, Limitation of actions §§ 102, 105, 107.

       51 Am Jur 2d, Limitation of Actions § 470.

      1. Negligence — Malpractice — Limitation of Actions — Termination of Services — Discovery of Injury — Statutes.
    An action based on the malpractice of a state licensed person must, under the discovery rule, be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later (MCL 600.5805[3], 600.5838; MSA 27A.5805[3], 27A.5838).
    2. Judgment — Accelerated Judgment — Statute of Limitations — Material Disputes — Discovery of Malpractice.
    Accelerated judgment in an action for malpractice based on the statute of limitations is improper where material factual disputes exist regarding discovery of the asserted malpractice; a person must know of the act or omission itself and have good reason to believe the act itself was improper or was done in an improper manner in order to discover asserted malpractice; mere knowledge of the act will be sufficient, under certain circumstances, where it alone gives good reason to believe the act was improper.

      Philo, Atkinson, Darling, Steinberg, Harper & Edwards, for plaintiffs.

      Kerr, Wattles & Russell (by James R. Dashiell), for defendant.
    Before: D. C. Riley, P.J., and J. H. Gillis and MacKenzie, JJ.
   J. H. Gillis, J.

Plaintiffs appeal from an order of the Oakland County Circuit Court granting accelerated judgment to defendant, GCR 1963, 116.1(5), based on the two-year statute of limitations for medical malpractice. MCL 600.5805(3), 600.5838; MSA 27A.5805(3), 27A.5838.

Plaintiff, Jane Leary, began consulting with defendant as her family physician in 1961. In 1963 she was treated by defendant for rheumatic fever. During the course of this treatment both defendant and plaintiff learned that plaintiff was allergic to penicillin.

The events giving rise to this action began on March 24, 1967, when plaintiff presented herself to defendant with a fever, red throat and headaches. A respiratory infection was diagnosed and polycillin was prescribed.

Polycillin is closely related to penicillin and a number of other antibiotics to which plaintiff is allergic. Dr. Rupp prescribed polycillin because it was the only antibiotic effective against streptococcus which plaintiff had not taken previously.

Plaintiff proved to be allergic to polycillin and a reaction set in. The symptoms included a severe skin rash, blood in the urine, fever, and pain in the joints. Plaintiff was admitted to the hospital and informed by both defendant and an emergency room physician that her condition was a reaction to the polycillin.

Defendant considered plaintiffs situation to be life threatening and put plaintiff on another drug, prednisone, to combat the allergic reaction. Plaintiffs condition improved and she was released from the hospital a few weeks later, although she continued to experience some problems.

June 10, 1967, was the date of plaintiffs last treatment by defendant. In relating her medical history from that date on, plaintiff indicated she experienced on-going bladder problems as well as pain in her back and legs. The bladder problems led her to a urologist and the back and leg pain worsened over the course of the next several years until plaintiff sought medical care in November, 1972. Plaintiff thereafter learned her condition was asceptic necrosis, most probably caused by the drugs she had taken in March and April, 1967.

Plaintiff filed her complaint against Dr. Rupp on April 2, 1974. The specific acts of malpractice alleged include, inter alia, (1) prescribing polycillin when it should have been known that plaintiff was allergic to it, (2) prescribing prednisone when it was unnecessary and contraindicated under the circumstances, (3) prescribing excessive dosages of prednisone, and (4) withdrawing plaintiff from prednisone in a sudden, abrupt and unsafe manner.

Under the "discovery rule”, an action based on malpractice of a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later. Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973).

In granting accelerated judgment, the trial court stated that plaintiff was aware of the act, harm and possible malpractice in 1967 and her claim was, therefore, barred by the statute of limitations.

Accelerated judgment grounded on the statute of limitations is improper where material factual disputes exist regarding discovery of the asserted malpractice. Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976).

In the instant case the parties dispute the date plaintiff discovered or by reasonable diligence could have discovered the asserted malpractice. Part of this dispute arises out of confusion over what is meant by the term "asserted malpractice”. Defendant contends that because plaintiff knew of the act and resulting harm in 1967 she, therefore, knew of the asserted malpractice and the statute of limitations began to run at that time.

A person usually visits a doctor because of a physical or mental problem. Therefore, it is easy to assume that subsequent developments are due to the problem which initiated the contact rather than negligence on the part of the doctor. In addition, the doctor himself may allay any suspicions the patient might have. See Kelleher, supra, Cates v Frederick W Bald Estate, 54 Mich App 717; 221 NW2d 474 (1974). For these reasons knowledge of the act and resulting injury alone may be insufficient to commence the running of the statute of limitations. On the other hand, it is not necessary that the plaintiff recognize that she has suffered an "invasion of a legal right”. Patterson v Estate of Flick, 69 Mich App 101; 244 NW2d 371 (1976). We conclude that in order to discover "asserted malpractice” a person must know of the act or omission itself, i.e., prescribing polycillin, and have good reason to believe the act itself was improper or was done in an improper manner.

Under certain circumstances mere knowledge of the act will be sufficient because it alone gives good reason to believe it was improper. For example, in Patterson, supra, the defendant severed a femoral nerve during an appendectomy resulting in paralysis.

In contrast, a person may know of both the act and some resulting pain but not be aware of any wrongdoing by defendant. In Kelleher, supra, the plaintiff knew of the act, the fitting of dentures, and resulting discomfort. However, because of the dentist’s statement indicating plaintiff "didn’t know how to wear dentures” it was held to be a question of fact whether plaintiff discovered or should have discovered the asserted malpractice.

In the instant case, while plaintiff knew of some of the acts, i.e., the prescribing of polycillin and prednisone, and the resulting harm, allergic reaction and pain in the legs, reasonable minds could differ as to when she should have realized that the doctor had acted improperly. For this reason, accelerated judgment should not have been granted. Schalm v Mt Clemens General Hospital, 82 Mich App 669; 267 NW2d 479 (1978), Weiss v Bigman, 84 Mich App 487; 270 NW2d 5 (1978).

Reversed and remanded for proceedings consistent with this opinion. Costs to appellant.


author: M. B. Breighner, J.

text:
    UNION LAKE ASSOCIATES, INC v COMMERCE & INDUSTRY INSURANCE COMPANY
    Docket No. 78-157.
    Submitted November 14, 1978, at Lansing.
    Decided March 20, 1979.
    Plaintiff Union Lake Associates, Inc., owned a shopping center insured by defendant Commerce and Industry Insurance Company. A storm seriously damaged a store in the shopping center and plaintiff filed a claim of loss with defendant. The parties failed to agree on the valuation of the damage. Pursuant to the policy’s appraisal provision each party then selected an appraiser and an umpire was appointed upon the parties’ petition to the Mason Circuit Court. The appraisers subsequently determined the amount of loss to the building, which amount the defendant did not dispute and has paid in full. The question of the amount of compensable rental loss sustained by the plaintiff remained unsettled until the umpire proposed an award for six months rental loss and the plaintiff’s appraiser signed the award. Plaintiff then filed a motion for summary judgment on the appraisal award and defendant made a motion to set aside or modify the appraisal award. The Mason Circuit Court, Charles A. Wickens, J., denied the defendant’s motion, granted the plaintiff’s motion, and held that the defendant was bound by the decision of the appraisal panel. Defendant appeals. Held:

    1. The defendant is bound by the compromise decision of two out of the three members of the appraisal panel since there is no evidence that the umpire had either acted fraudulently, in bad faith, or had committed a patent mistake of law.
    2. The appraisal panel was authorized to determine the amount of actual cash value and loss of the rentals.
    3. Plaintiff’s appraiser did not necessarily adopt the umpire’s underlying rationale by merely signing the umpire’s monetary award.
    4. The record does not indicate that the umpire made any manifest legal error and does not give a basis for overturning the award.

      References for Points in Headnotes

       44 Am Jur 2d, Insurance § 1708.

       5 Am Jur 2d, Arbitration and Award § 136.

       5 Am Jur 2d, Arbitration and Award § 163.

       44 Am Jur 2d, Insurance § 1719.

      5. The arbitrator was not bound, in determining the amount of rental loss, by a preliminary agreement between the plaintiff and a potential tenant for the damaged building whereby the tenant was to have the first three months of occupancy under the lease free of rent since no lease to such effect had been signed at the time the store was damaged.
    Affirmed.
    1. Insurance — Appraisal — Arbitration Agreements — Standard Policy Form — Statutes.
    A submission to appraisal under an appraisal clause contained in an insurance contract which conforms to the form required of a standard insurance policy constitutes a common law arbitration agreement (MCL 500.2832; MSA 24.12832).
    2. Insurance — Arbitration Agreements — Scope — Issues — Power.
    The scope of an arbitration agreement between parties dictates the issues to be addressed by the arbitrators because they derive their power solely from the parties’ agreement; an arbitration award must not exceed the authority granted the arbitrators.
    3. Arbitration and Award — Common Law — Grounds for Contesting Award.
    The standard of review for common law arbitration agreements in general is limited; bad faith, fraud and misfeasance affecting the integrity and impartiality of the proceedings are always grounds for attacking an appraisal award.
    4. Insurance — Arbitration Agreements — Settlements — Validity — Manifest Legal Error.
    An insurance settlement figure which was agreed upon by two of three members of an appraisal committee which was selected pursuant to an arbitration agreement in an insurance policy is valid where the record does not indicate manifest legal error or any basis for overturning the award.

      Bacalis & Associates, P.C. (by Jesse R. Bacalis and Christopher J. Wiggins), for plaintiff.

      Denenberg, Tuffley & Thorpe (by Charles R. Tuffley and Ilene Gordon), for defendant.

      Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   M. B. Breighner, J.

Defendant insurance company appeals from the circuit court’s refusal to modify or set aside an appraisal award made pursuant to the statutorily mandated appraisal procedure in plaintiff’s fire insurance policy. MCL 500.2832; MSA 24.12832.

Defendant was the insurer of a shopping center in Ludington, Michigan, owned by plaintiff. On February 3, 1976, a storm seriously damaged a store in the shopping center. Plaintiff filed a claim of loss with defendant under its insurance policy, but the parties failed to agree on the valuation of the damage. Pursuant to the statutorily required appraisal provision of plaintiffs policy, MCL 500.2832(1); MSA 24.12832(1), the parties each selected an appraiser. Upon petition, the circuit court appointed Ronald K. Johnson to serve as umpire on July 27, 1976. The appraisers and umpire subsequently determined that the amount of loss to the building was $69,107.40. Defendant does not dispute this part of the appraisal award and has paid it in full.

However, the amount of compensable rental loss sustained by plaintiff remained unsettled. Although the parties stipulated that the fair rental value of the premises was $8,748 per month, the appraisers and umpire could not agree on the length of the indemnity period.

The dispute focused upon the following provisions of plaintiffs insurance policy:

"2. The Company shall be liable for:
"a. the actual loss sustained by the insured resulting directly from necessary untenantability, but not exceeding the reduction in rents less charges and expenses which do not necessarily continue during the period of untenantability for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace such part of the property herein described as has been damaged or destroyed commencing with the date of such damage or destruction and not limited by the date of expiration of this policy.
"6. Additional Exclusions and Limitations:
"a. the Company shall not be liable for any increased loss which may be occasioned by:
"(3) the suspension, lapse or cancellation of any lease, contract or order unless such suspension, lapse or cancellation results directly from the untenantability of the premises and then the Company shall be liable for only such loss as affects the rents of the premises during and limited to the period of indemnity under this policy.”

Immediately prior to the damage incurred, plaintiff had been negotiating with the S. S. Kresge Company for the lease of the store. On January 27, 1976, one week before the damage occurred, Kresge had sent plaintiff a letter announcing its intent to lease subject to concluding a satisfactory lease agreement based on certain stated terms and conditions. Among the terms listed in the letter was a provision that rent payments would not commence until "90 days from consummation of lease or from date of delivery of premises to Kresge, whichever occurs later”. Plaintiff had approved the terms.

At a final meeting of the appraisers and umpire held on March 22, 1977, the umpire concluded that the period required to make building repairs was six months and that plaintiff should be awarded $52,488 for consequent rental loss. Because neither appraiser concurred, the meeting ended without agreement. But in June, 1977, plaintiff’s appraiser signed the umpire’s proposed award.

On July 27, 1977, plaintiff filed for summary judgment on the appraisal award, alleging that no issue of material fact remained. Defendant moved to modify or set aside the appraisal award based on an alleged error of law by the umpire. Defendant contended that the umpire had erroneously interpreted the policy provisions regarding coverage of rental loss and had allowed plaintiff to recover for a three-month period when it could not have collected rent regardless of damage to the store. Plaintiff argued in response that, given the standard of review for such statutory appraisal awards, defendant had shown no adequate reason for the circuit court to interfere with or overturn the award.

The trial court first ruled that defendant had failed to prove that the appraisal award incorporated any mistake of law. The record only showed agreement between the umpire and plaintiff’s appraiser as to the amount of rental loss sustained, and not as to the legal theory supporting the award. Second, even if defendant could attack the award on the basis of only one signer’s mistake, the court found no evidence that the umpire had acted fraudulently or in bad faith, or that he had committed a patent mistake of law. The trial court concluded that defendant was bound by the compromise decision of two out of the three members of the appraisal panel. We affirm.

MCL 500.2832(1); MSA 24.12832(1), which includes the statutorily required appraisal procedure incorporated into plaintiffs policy, provides in pertinent part as follows:

"In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.”

The total amount of loss as contained in the appraisal award is payable 60 days after the award is filed with the insurer. The policy provides that neither party may seek court review of a claim until the appraisal process has been invoked and completed:

"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”

See, also, Thermo-Plastics R & D, Inc v General Accident Fire & Life Assurance Corp, Ltd, 42 Mich App 418; 202 NW2d 703 (1972), Innis v Fireman’s Fund Ins Co, 218 Mich 253; 187 NW 268 (1922).

Although appraisal is generally distinguished from arbitration, the terminology used is not necessarily conclusive of the nature of the process. The Michigan Supreme Court has held that a submission to appraisal under MCL 500.2832; MSA 24.12832 constitutes a common law arbitration agreement. Manausa v Saint Paul Fire & Marine Ins Co, 356 Mich 629, 633; 97 NW2d 708 (1959), Davis v National American Ins Co, 78 Mich App 225, 232; 259 NW2d 433 (1977). It is a well-settled arbitration principle that the scope of the agreement between the parties dictates the isues to be addressed by the arbitrators. Likewise, the arbitration award must not exceed the authority granted the arbitrators, who derive their power solely from the parties’ agreement. Carr v Kalamazoo Vegetable Parchment Co, 354 Mich 327; 92 NW2d 295 (1958), Smith v Highland Park Board of Education, 83 Mich App 541; 269 NW2d 216 (1978).

The statutory appraisal agreement here at issue limits the scope of the appraisal proceedings to a determination of the amount of actual cash value and loss suffered by the policyholder. Plaintiff and defendant further specifically agreed, pursuant to plaintiff’s policy, to submit the question of plaintiff’s rental loss to the appraisers and umpire. The appraisal panel was thus authorized to determine "the amount of actual case value and loss” of rentals.

The standard of review for common law arbitration agreements in general, and for the instant statutory appraisal process in particular, is limited. E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221; 230 NW2d 556 (1975), Davis, supra. Bad faith, fraud and misfeasance affecting the integrity and impartiality of the proceedings are always grounds for attacking an appraisal award. Davis, supra. Defendant has not, however, alleged any such dereliction by the appraisers or umpire.

Defendant instead contends that this Court should set aside the appraisal award because of the umpire’s manifest error of law in awarding plaintiff rental loss for a period during which, by the terms of the policy, defendant could not be held liable for such loss. Defendant also alleges that plaintiff’s appraiser joined in the manifest error by signing the umpire’s appraisal award.

We first note that, by merely signing the umpire’s monetary award, plaintiff’s appraiser did not necessarily adopt the umpire’s underlying rationale. It is equally probable that he compromised his own conclusions in order to resolve the dispute. Cf., Davis, supra, at 237-238.

As for the umpire’s appraisal, the record does not indicate that he made any manifest legal error or that we have any basis for overturning the award. Defendant’s whole argument rests on the premise that plaintiff had previously contractually bound itself not to collect rent from Kresge for three months of the period required to repair the damaged building. Thus, defendant argues, rental loss was not attributable to damage for which defendant could be liable. This is simply not true. While plaintiff had expressed preliminary agreement to such a term, no lease had been signed at the time the store was damaged. Suspension of plaintiffs rental income due to circumstances other than damage covered under the policy was merely a factual possibility for the umpire and appraisers to consider, not an established fact mandating a firm legal conclusion as to plaintiffs coverage under the policy.

The statutory appraisal procedure has been called "a substitute for judicial determination of a dispute concerning the amount of loss”, and "a simple and inexpensive method for the prompt adjustment and settlement of claims”. ThermoPlastics, supra, at 422, Davis, supra, at 231. If it is to fulfill these functions, umpires and appraisers must be allowed to freely weigh speculative considerations affecting determinations of loss. Compare Port Huron & Northwestern R Co v Michael Callanas 61 Mich 22, 26; 34 NW 678 (1887). We decline to interfere with a resolution particularly within the intended scope of the umpire’s and appraisers’ powers.

Affirmed. Costs to plaintiff.

       In an affidavit filed with the trial court, plaintiff’s appraiser alleged that he had claimed nine months as an appropriate indemnity period and had submitted an award for $67,500. He further alleged that defendant’s appraiser had contended no rental loss was due plaintiff.

       The appraisal award signed by plaintiff’s appraiser only stated the total amount of rental loss and not the length of the indemnity period.

       See Noble v Grandin, 125 Mich 383, 390; 84 NW 465 (1900), Campbell v Michigan Mutual Hail Ins Co, 240 Mich 167; 215 NW 401 (1927), E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221, 246; 230 NW2d 556 (1975).

         Defendant would have us adopt the reasoning in Jefferson Ins Co of New York v Superior Court of Alameda County, 3 Cal 3d 398; 90 Cal Rptr 608; 475 P2d 880 (1970), in which the California court held that appraisers generally have more limited powers than arbitrators. We decline since Michigan precedent directs us to look to the scope of the appraisal agreement between the parties under MCL 500.2832; MSA 24.12832.

       Defendant argues on appeal that, in resolving the dispute between the parties as to compensable rental loss under the policy, the umpire and appraisers only had the power to decide the amount of rental loss per month and the number of months required to make the building tenantable. It was then the trial court’s responsibility to apply those factual findings to the terms and provisions of the policy. Contrary to defendant’s contention, the statutory appraisal provision states that the appraisers and umpire shall assess separately actual cash value and loss to each item. Since rental loss was an item submitted, the appraisal panel in this case was authorized to determine the rental loss as a whole.

       In his affidavit to the trial court, plaintiffs appraiser stated, "The decision on loss and damage was the result of a compromised decision and did not represent the adoption of any one point of view, theory of law, or agreement on the facts.”

       At the circuit court hearing on defendant’s motion to set aside the appraisal award, the umpire testified in part as follows:
      "I would like to back up so far as to inform the Court of what I considered concerning the K-Mart lease. There was a letter dated January 27th to the plaintiff from Kresge Company detailing a consent or an agreement of lease. It isn’t a formal lease. This is a business letter. We relied quite heavily on this letter to establish the dollar value, because it apparently is an arms length transaction. And, one of the terms that’s spelled out in here, it details that ninety days after the consummation of the lease or the date of delivery of the premises, the rent would start. It doesn’t specifically refer to May 8th, or anything. It just says ninety days after possession. And, as I considered this, having, and I am sure we will speak to this, having determined a six-month indemnity period, it was my feeling that one way to consider this thing, anyway, was that after the six-month indemnity period, possession would again then be delivered and there would be another three months before any rent would come due. Or, another way of considering the whole matter was that this is merely the best evidence we have of the rental value, since this is a twenty-year lease and we have no idea why the parties determined that no rent would be due in the first three months, and I felt it would conversely be appropriate to just ignore that as some sort of baiting or concession that had been made for one reason or another that didn’t seem to have anything to do with the rental value of the premises.
      "In looking at the policy and my main concern was that it was actually nine months until rental monies would start flowing into this after this loss. The term of the three-month delay from possession until commencement of rent, I felt it was delayed six months and this six months’ delay, or read it nine-month delay, is also a direct result of the collapse. And, I believe the matters, as I read the policy, were covered. There is a provision in the policy for, well, perhaps I could find it, that would, as I interpreted it, would cover this additional three months on the other end. If we are to say that this is the word, this Kresge letter saying that there is no rent due for this first three months, and that is to be considered in this matter, then it must be considered at the other end and the three months tagged on the end, as a consequent loss. Or, it could just as easily be considered that this Kresge letter had nothing at all to do with it and was merely evidence of the rental value, whereupon it doesn’t matter.”

       Most of the parties’ argument on appeal concerned the scope of appraisers’ and umpires’ powers to decide legal questions of liability and coverage under the terms of insurance policies. Because we conclude that the facts of the instant case do not squarely raise this issue, we do not address it. See Schreiber v Pacific Coast Fire Ins Co,
        195 Md 639; 75 A2d 108; 20 ALR2d 951 (1950). But see, contra, Atlas Construction Co, Inc v Indiana Ins Co, Inc, 160 Ind App 33; 309 NE2d 810 (1974), Jefferson Ins Co of New York v Superior Court of Alameda County, 3 Cal 3d 398; 90 Cal Rptr 608; 475 P2d 880 (1970).


author: D. F. Walsh, P.J. C. J. Byrns, J.

text:
    BROWN v TURNBLOOM
    Docket No. 78-719.
    Submitted October 5, 1978, at Grand Rapids.
    Decided March 20, 1979.
    Plaintiff Shirley Brown and defendant Richard Turnbloom were divorced in Wisconsin in 1975. Plaintiff was awarded custody of their four children, but due to the lack of personal service on defendant, the amount of child support was left open for later determination. In 1977 plaintiff initiated proceedings in Wisconsin under the Uniform Reciprocal Enforcement of Support Act (URESA) to compel the defendant, a Michigan resident, to pay reasonable child support. The Wisconsin court found that defendant owed a duty of support to his children and transmitted the necessary documents to the Wexford County Friend of the Court who recommended that the defendant be ordered to pay $14 per week per child. The Wexford Circuit Court, Walter F. Ransom, J., thereafter heard the plaintiffs complaint for child support under the URESA and ordered the defendant to pay $7 per week per child. The trial judge noted that in determining the amount of child support he had considered the fact that the defendant had not been allowed to visit with his children. Plaintiff appeals. Held:

    1. The circuit judge erred in considering the alleged denial of visitation rights in determining the amount of child support to be paid by defendant.
    2. The purpose of the URESA is to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.

      References for Points in Headnotes

       23 Am Jur 2d, Desertion and Nonsupport § 128.

       23 Am Jur 2d, Desertion and Nonsupport §§ 131, 136.
    24 Am Jur 2d, Divorce and Separation §§ 801, 802.

       23 Am Jur 2d, Desertion and Nonsupport § 136.
    Construction and application of state statutes providing for reciprocal enforcement of duty to support dependents. 42 ALR2d 768.

       24 Am Jur 2d, Divorce and Separation § 801.
    Complete denial of visitation rights of divorced parent. 88 ALR2d 148.

       23 Am Jur 2d, Desertion and Nonsupport § 131.

       23 Am Jur 2d, Desertion and Nonsupport § 133.

       24 Am Jur 2d, Desertion and Nonsupport §§ 810, 811.

       23 Am Jur 2d, Desertion and Nonsupport § 135.
    24 Am Jur 2d, Divorce and Separation §§ 810, 811.

      3. The URESA contemplates ex parte proceedings where only duties of support are adjudicated; it does not provide for adversary proceedings where other matters are to be decided and has no mechanism for requiring the custodial parent to appear to answer allegations of the noncustodial parent as to the denial of visitation privileges.
    Reversed and remanded.
    C. J. Byrns, J., dissented and would hold:
    1. The trial judge should have the same options open when the noncustodial parent is complaining of denial of visitation rights in a URESA action as he or she would have in proceedings based on a Michigan divorce order or judgment.
    2. The Court of Appeals should not read into URESA a mandatory rule that it is the noncustodial but supporting parent who must always go to the other state to obtain enforcement of visitation rights which have been denied by the custodial parent.
    3. It creates two classes of citizens and is a denial of equal protection to deny a Michigan-resident obligor-parent the right to have a court enforce visitation rights by suspending or modifying child support obligations just because the matter before the court is a URESA petition rather than a Michigan judgment.
    4. Defendant’s duty of support should be decided in accordance with Michigan law.
    5. The Court of Appeals, rather than reading the act as automatically denying the hearing and decision of any claim of abuse or denial of visitation rights, should interpret the URESA to permit the trial judge to consider such a claim and act in accordance with the best interests of the child as he would do in any other case.
    Opinion of the Court
    1. Divorce — Parent and Child — Support of Children — Uniform Reciprocal Enforcement of Support Act — Purpose — Statutes.
    The purpose of the Uniform Reciprocal Enforcement of Support Act is to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto (MCL 780.152; MSA 25.225[2]).

      2. Divorce — Parent and Child — Support of Children — Visitation Rights — Uniform Reciprocal Enforcement of Support Act •— Appeal and Error.
    A trial court erred, in a Uniform Reciprocal Enforcement of Support Act action where Michigan is the responding state, in considering the alleged denial of visitation rights to the defendant in determining the amount of child support to be paid by the defendant; the responding court is without subject matter jurisdiction over matters of visitation and may not condition payment of support on the observance of visitation rights.
    3. Divorce — Parent and Child — Support of Children — Adversary Proceedings — Uniform Reciprocal Enforcement of Support Act — Statutes.
    The Uniform Reciprocal Enforcement of Support Act is expressly limited in its scope to the adjudication of a party’s duty of child support; the act contemplates ex parte proceedings for such purpose and does not provide for adversary proceedings where other matters are to be decided (MCL 780.151 et seq.; MSA 25.225[1] et seq.).

    Dissent by C. J. Byrns, J.
    4. Divorce — Parent and Child — Support of Children — Uniform Reciprocal Enforcement of Support Act — Visitation Rights — Denial of Visitation — Remedy.

      The Uniform Reciprocal Enforcement of Support Act should be interpreted to permit a trial judge in the responding state to consider a claim of abuse or denial of visitation rights and act in accordance with the best interests of the child to fashion a suitable remedy, such as the suspension or reduction of child support, in order to win for the child visitation with a parent.

    5. Divorce — Parent and Child — Support of Children — Visitation Rights — Denial of Visitation — Uniform Reciprocal Enforcement of Support Act.

      A trial judge should have the same options open in a Uniform Reciprocal Enforcement of Support Act action where a noncustodial parent is complaining of a denial of visitation rights as he or she would have in proceedings based on a Michigan divorce order or judgment.

    6. Divorce — Parent and Child — Support of Children — Uniform Reciprocal Enforcement of Support Act — Visitation Rights.

      The Uniform Reciprocal Enforcement of Support Act should not

      be read as containing a mandatory rule that it is the noncustodial but supporting parent who must always go to the other state to obtain enforcement of visitation rights which have been denied by the custodial parent.

    7. Divorce — Parent and Child — Support op Children — Modification op Obligation — Visitation Rights.

      Trial judges in Michigan have the authority to suspend or modify child support obligations to enforce visitation rights granted in a Michigan judgment as long as the child is not adversely affected.

    8. Divorce — Parent and Child — Support op Children — Uniform Reciprocal Enforcement op Support Act — Statutes.

      The section of the Michigan Uniform Reciprocal Enforcement of Support Act regarding enforceable duties of support requires that an obligor’s duty of support be decided in accordance with Michigan law (MCL 780.158; MSA 25.225[8j).

    9. Divorce — Parent and Child — Visitation Rights — Support op Children — Uniform Reciprocal Enforcement op Support Act — Equal Protection.

      The practice of denying a Michigan-resident obligor-parent the right to have a court enforce child visitation rights by suspending or modifying child support obligations, where the matter before the court is a Uniform Reciprocal Enforcement of Support Act petition rather than a Michigan judgment, creates two classes of citizens and is a denial of equal protection of the law.

      Burton A. Hines, Jr., Wexford County Prosecuting Attorney, for plaintiff.
    Before: D. F. Walsh, P.J., and T. M. Burns and C. J. Byrns, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. F. Walsh, P.J.

Plaintiff Shirley Brown and defendant Richard Turnbloom were divorced in Wisconsin in 1975. Plaintiff was awarded custody of their four children. Because of the lack of personal service on defendant, the amount of child support was left open for determination at a later date. In 1977 plaintiff initiated proceedings in Wisconsin under the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA) to compel defendant, a Michigan resident, to pay reasonable child support. Plaintiff was then receiving $411 per month from the Portage County, Wisconsin, Department of Social Services for the support of the children. The Wisconsin court found that defendant owed a duty of support to his children and transmitted the necessary documents to Wexford County, Michigan. The Wexford County Fried of the Court recommended that defendant be ordered to pay $14 per week per child. The Wexford County circuit judge ordered defendant to pay $7 per week per child.

At the Wexford County hearing on the URESA petition the judge, over the objection of the prosecuting attorney who represented plaintiff, heard testimony by defendant that he had not been allowed to visit with his children. In ordering defendant to pay $7 per week per child, the judge noted that, in determining the amount of child support, he had considered the fact that defendant had not been allowed to visit with his children. The prosecutor’s petition for reconsideration was denied. Plaintiff appeals.

The issue presented for our determination here is this. In a URESA action where Michigan is the responding state, may the Michigan circuit judge, in determining the amount of support, take into consideration the alleged denial of the obligor’s visitation rights?

The purpose of URESA (MCL 780.151 et seq.; MSA 25.225(1) et seq.) is "to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto”. MCL 780.152; MSA 25.225(2). (Emphasis supplied.) To effectuate these purposes we hold that the circuit judge erred in considering the alleged denial of visitation rights in determining the amount of child support to be paid by defendant.

We find persuasive the reasoning of the Florida court in Vecellio v Vecellio, 313 So 2d 61 (Fla App, 1975), where it was noted that URESA focuses on only one aspect of domestic relations — the duty of support. The act does not contemplate that the custodial parent come to the responding state to defend against claims arising from other domestic relations matters. Aggrieved noncustodial parents should return to the state of divorce to adjudicate other matters. Id. at 62. Accord, Grosse v Grosse, 347 So 2d 1099 (Fla App, 1977).

In the following cases courts of various jurisdictions have held that the responding court is without subject matter jurisdiction over matters of visitation and may not condition payment of support on observance of visitation rights: Kline v Kline, 260 Ark 550; 542 SW2d 499 (1976), Pifer v Pifer, 31 NC App 486; 229 SE2d 700 (1976), Hoover v Hoover, — SC —; 246 SE2d 179 (1978). In each case the reviewing court cited that portion of the act which provides, "Participation in any proceedings under this act shall not confer upon any court jurisdiction of any of the parties thereto in any other proceedings”. MCL 780.172; MSA 25.225(22).

In Robinson v Harris, 87 Mich App 69; 273 NW2d 108 (1978), the defendant father, a Michigan resident, challenged a court order requiring him to pay child support. The plaintiff mother had been awarded custody of the parties’ children following their divorce. Since the divorce, the children had become increasingly embittered toward defendant. There was no longer any possibility of a meaningful relationship between defendant and his children. The plaintiff was an Ohio resident and a URESA petition was filed in her name seeking child support payments from defendant. The following language of this Court is particularly relevant to the stiuation of the instant plaintiff, a welfare recipient:

"The custodial parent, the mother in this case, is receiving aid from the State of Ohio for the support of her minor children. Under the Uniform Reciprocal Enforcement of Support Act, adopted in both Ohio and Michigan, the State of Ohio is entitled to reimbursement from a person liable under a proper order of support where the state has itself made support payments. MCL 780.159; MSA 25.225(9). Thus, the real party in interest on the side of the plaintiff is the State of Ohio. Whatever the decision of this Court, the named plaintiff will not be affected. To speak in terms of punishing the named plaintiff for her conduct regarding the children or of forcing compliance with court orders by withholding support misses the mark.” Id. at 71.

We adopt the view expressed in the foregoing cases. URESA makes no mention of visitation matters. Its scope is expressly limited to support. The act contemplates ex parte proceedings where only duties of support are adjudicated. It does not provide for adversary proceedings where other matters are to be decided. There is no mechanism for requiring the custodial parent to appear to answer allegations of the noncustodial parent as to the denial of visitation privileges. Adjudication of visitation matters is, therefore, best left to the state of divorce.

Our holding finds support in the history of Michigan’s adoption of the Uniform Reciprocal Enforcement of Support Act. There have been two major versions of the act approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association — the original act, as adopted in 1950 and amended in 1952 and 1958, and the revised act of 1968. 9 ULA, Uniform Reciprocal Enforcement of Support Act, Historical Note, p 805. Michigan adopted most of the 1950 act and only the 1952 amendments. Id., General Statutory Notes, p 892. Of particular significance to the issue raised in the instant case was the Michigan Legislature’s failure to adopt § 21 of the 1950 act as amended in 1958. That section provided that, if the complainant was absent from the responding state and the respondent presented evidence constituting a defense, the responding court was to continue the case for further hearing and submission of evidence by both parties. Id. at 922. See id. Commissioners’ Prefatory Note (1958), p 886. Since the Michigan statute contains no provision suggesting that an adversary proceeding was contemplated by the Legislature, we are convinced that a streamlined process focusing solely on the issue of support was intended. The lack of due process protections for the absent custodial parent compels this conclusion.

Although it has not been adopted in Michigan it is of interest to note that, with particular reference to visitation, the 1968 revised act expressly provides, in § 23, that "the determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court”. Id. at 862. The comment of the commissioners with regard to this amendment suggests that it was perhaps not intended to indicate a change in their original intent as to the scope of inquiry in URESA proceedings. According to the commissioners, the 1968 amendments, like previous amendments, were designed only "to plug loop holes and cure defects in the enforcement procedure”. Id., Commissioners’ Prefatory Note, p 806.

The Legislature failed to provide for adversary proceedings in URESA matters. We decline to engraft into Michigan’s version of the act the due process protections which would be necessary before issues such as visitation could be fairly considered.

Accordingly, we reverse the order setting the amount of child support and remand for further proceedings consistent with this opinion.

No costs, a public question.

T. M. Burns, J., concurred.

C. J. Byrns, J.

(dissenting). I must respectfully dissent from the decision of the majority because I believe, that in protecting the best interests of the children, the trial judge should have the same options open when the noncustodial parent is complaining of denial of visitation rights in a URESA action as he or she would have in proceedings based on a Michigan divorce order or judgment.

This is a real problem frequently faced by circuit judges of this state especially considering the frequency of divorce in a nation whose people are becoming more migratory. Children of broken homes have a natural right and need — sometimes more than those in homes with both parents — for the love, affection and companionship of both separated parents. Visitation is often more important to such a child than it may be to the noncustodial parent. In some cases visitation may be more important to a child’s welfare than monetary support from the absent parent.

Each divorce case involving children, each child involved in a divorce case, is different and matters affecting them must be decided individually where their best interests may be at issue.

It is not wise or equitable to absolutely deny the trial judge in URESA cases the right, when he or she finds a need for child visitation, to fashion a suitable remedy (e.g., deny, suspend or reduce support, or hold the same in escrow with the clerk or friend of the court) in order to win for the child visitation with a parent.

Presumably a trial judge, who each year has hundreds of divorce cases involving children on the docket, is skilled and experienced enough, where lack or loss of visitation is claimed in defense of a support obligation, to recognize the difference between a parent who is merely trying to avoid paying support and one who is sincerely concerned for the children.

While it is important to protect the pecuniary rights of taxpayers, who my experience would indicate are more often than not supporting URESA children, it is also essential to protect the child’s, as well as the parent’s rights of visitation, and, in the appropriate case, to use a support order to encourage the absent custodial parent or the authorities in the petitioning state to give visitation rights to the respondent parent or at least give serious consideration to the matter. I cannot make the differentiation between who the real complainant is in a URESA action a basis for decision as Robinson v Harris, 87 Mich App 69; 273 NW2d 108 (1978), appears to do.

It does not seem to me that we should read into URESA a mandatory rule that it is the noncustodial but supporting parent who must always go to the other state to obtain enforcement of visitation rights which have been denied by the custodial parent. There are cases where the custodial parent is much more able to travel than the other parent.

The judge in Michigan, if permitted to hear the facts of a denial of visitation claim, may determine that a denial, suspension, reduction or escrow of support money will best persuade the custodial parent to cooperate in respecting visitation for the other parent. If the real motivation to collect or enforce support in the demanding state is a social or public agency rather than the custodial parent, then it may be the one to either encourage the custodial parent to cooperate in visitation, or else to take action in a court having jurisdiction over such parent to compel visitation rights.

Michigan recognizes in the enforcement of visitation rights granted in a Michigan judgment that as long as the child is not adversely affected, trial judges have the authority to suspend or modify child support obligations to enforce visitation rights. McLauchlin v McLauchlin, 372 Mich 275; 125 NW2d 867 (1964), Pronesti v Pronesti, 368 Mich 453; 118 NW2d 254 (1962), Myers v Myers, 143 Mich 32; 106 NW 402 (1906).

To deny a Michigan-resident obligor-parent the same right to have a court enforce visitation rights by such use of support orders, just because the matter before the court is a URESA petition rather than a Michigan judgment, creates two classes of citizens and is a denial of equal protection of the law. Such result also is contrary to MCL 780.158; MSA 25.225(8), which I interpret as requiring the duty of support to be decided in accordance with Michigan law.

Where this issue of the authority of the responding court to consider visitation in URESA proceedings has arisen, some states have taken what to me is the better position, which is that a court can consider the issue and condition payment of support on observation of visitation rights. New Jersey v Morales, 35 Ohio App 2d 56; 299 NE2d 920 (1973), Porter v Porter, 25 Ohio St 2d 123; 267 NE2d 299 (1971), Chandler v Chandler, 109 NH 477; 256 A2d 157 (1969), Curry v Felix, 276 Minn 125; 149 NW2d 92 (1967), Daly v Daly, 39 NJ Super 117; 120 A2d 510 (1956), aff’d 21 NJ 599; 123 A2d 3 (1956).

In leaving to the judge in a URESA proceeding the right to consider and in the appropriate case protect visitation rights by an appropriate support order, it is axiomatic that the best interest of the child is paramount. First among the questions to be asked is how the child’s interest will be affected by the support order. Is the custodial parent unable to adequately provide for the child’s needs absent support from the other parent? Is a public agency supporting the child, and, if so, can it be enlisted to help persuade the custodial parent to make visitation available?

It is assumed that the judge, before using support as a vehicle for enforcement of visitation, has first been satisfied that the noncustodial parent is sincere; that he or she is a proper person with the necessary facilities for visitation; and that the custodial parent is denying or abridging visitation without good cause. The judge should not hesitate to use the local friend of the court and prosecutor as well as any appropriate agency in the locale of the custodial parent to secure such information. If reasonable, the custodial parent should be asked to appear to give evidence, or, if possible, evidence can be supplied by deposition or interrogatories. It is also within the realm of possibility to request the petitioning court to hold a hearing on visitation and make its findings or recommendations.

I recognize that what I recommend would mean more work for the trial courts than obtains if they are in the position to say that visitation complaints cannot be heard in URESA cases, but I believe our courts have a duty to the children involved, even though those children are located in another state. We also have a duty to the Michigan-resident parent who is being denied rights available to other residents not involved in a URESA action.

I submit that, rather than to read the act as automatically denying the hearing and decision of any claim of abuse or denial of visitation rights in URESA cases, this Court in this case of first impression in Michigan should interpret the act as I do to permit the trial judge to consider such a claim and act in accordance with the best interests of the child as the judge would in any other case.

In Chandler v Chandler, supra, the New Hampshire Supreme Court specifically found (as hopefully the appellate authority of this state will) that the provision of the act reading: "Participation in any proceeding under this chapter shall not confer upon any court jurisdiction of any of the parties thereto in any other proceeding” did not "preclude a court from reducing a support order until such time as agreement may be reached by the parties as to reasonable rights of visitation”. 109 NH at 479, 480.

It seems to me that limiting URESA actions to consideration of support only, on grounds of ability to pay, can work harm to those most vitally involved, the children.

I would affirm the trial court.

       Defendant’s testimony was not entirely clear as to the reasons he was unable to visit with his children. At one point he indicated that he did not go to their home because the police were after him. He also testified that plaintiff did not cooperate with him with regard to visitation. For purposes of this appeal, we interpret defendant’s testimony as indicating that plaintiff prevented him from visiting with the children.

       Although there is some Michigan authority suggesting that support obligations and visitation rights are interrelated, see, e.g., McLauchlin v McLauchlin, 372 Mich 275; 125 NW2d 867 (1964), Pronesti v Pronesti, 368 Mich 453; 118 NW2d 254 (1962), the recent trend is contrary, see, Stevenson v Stevenson, 74 Mich App 656, 658, fn 1; 254 NW2d 337 (1977), Henshaw v Henshaw, 83 Mich App 68; 268 NW2d 289 (1978), Robinson v Harris, supra. In any event, the nature of a URESA proceeding is significantly dissimilar to that of an action involving enforcement of support obligations between parties divorced in Michigan and present at the Michigan enforcement proceedings.