Report on Intervention of Prosecuting Attorneys in Divorce Actions, M.C.L. § 552.45, and Recommendation to the Legislature
In October 2000, Circuit Judge Charles W. Johnson of the 57th Judicial District wrote to the Commission to inform it of M.C.L. § 552.45. In his letter Judge Johnson wrote:
In connection with the Law Revision Commission’s obligation to examine statutes or the purpose of discovering defects and anachronisms in the law, I am writing to recommend a review of MCL 552.45.
This statute appears to have been originally enacted in the 1800's. It requires that in every divorce case involving minor children, the complaint must be served on the prosecuting attorney. The prosecutor must then enter an appearance, “and when, in his judgment, the interest of the children or the public good so requires, he shall introduce evidence and appear at the hearing and oppose the granting of a decree of divorce.”
In my tenure as a circuit judge, there has not been one time when a prosecutor has actually appeared in a divorce case to oppose granting the divorce. Since the enactment of the no fault divorce law, I am unaware of any grounds upon which this could be done. The above statute was obviously enacted before the advent of no fault divorce. To the extent that the intent was to have some independent person or agency in divorce proceedings watching out for the interests of the minor children, that purpose is now well served by the office of the Friend of the Court.
In my view, MCL 552.45 is an anachronism. It should be repealed.
The statute in issue, M.C.L. § 552.45 provides as follows:
552.45. Children; enumeration in complaint; notice to prosecutor or friend of court; opposition to decree, fee; interest of prosecutor or partners in case
Sec. 45. Every bill of complaint filed shall set forth the names and ages of all children of the marriage, and when there are children under 17 years of age a copy of the summons issued in the cause shall be served upon the the [sic] prosecuting attorney of the county where suit is commenced, or upon the friend of the court in those counties having a population of 500,000 or more which have a friend of the court. The prosecuting attorney or friend of the court so served shall enter his appearance in the cause, and when, in his judgment, the interest of the children or the public good so requires, he shall introduce evidence and appear at the hearing and oppose the granting of a decree of divorce. In any case wherein there are no children the issue of such marriage under the age of 17 years, when it shall appear to the court that the public good so requires, an order may be entered requiring the prosecuting attorney or friend of the court in counties having a population of 500,000 or more to appear and oppose the granting of a decree of divorce. For every case which the prosecuting attorney investigates, and in which he appears by and with the consent of the court, he shall receive the sum of $5.00, to be paid by the county treasurer upon the certificate of the circuit judge that such services have been performed. Nothing in this act contained shall be construed as preventing prosecuting attorneys or their partners from acting as solicitors or counsel for either party to the suit. If a prosecuting attorney or friend of the court is in any way interested as solicitor or counsel for either of the parties the court shall appoint some reputable attorney to perform the services of prosecuting attorney, as provided in this act, who shall receive the compensation provided for such service.
Should M.C.L. § 552.45 be repealed?
The Commission recommends that the Legislature repeal M.C.L. § 552.45.