Ballard v. Ballard

198 N.W.2d 451, 40 Mich. App. 37, 1972 Mich. App. LEXIS 1183

• Court: Michigan Court of Appeals
• Decided: April 24, 1972
• Docket: Docket 10219
• Status: Published

Opinions

O’Hara, J.

To understand our holding in this matter, it is regrettably necessary to set forth the background of the marriage of the parties, the earlier years of their lives together, the disintegration of the relationship, and finally the acrimonious pleadings and testimony, together with court orders pro and contra that extended even to a division of the phonograph records owned by the parties.

The young couple was married while both were students at Ohio Wesleyan University. As is often the case, both parties worked off and on in the early years. At one period the defendant husband inherited $17,000 which the wife claims he squandered. He claims it was used for paying off debts incurred by the couple, to finance the completion of his wife’s postgraduate work on her master’s degree, and to support the family while he was at National Guard encampment.

The whole pattern is an oft-repeated tale, culminating in disagreements over money, drinking, and sex. At last, the inevitable—a divorce. In this case a rather weird settlement, which obviously troubled the learned trial judge, was the basis of the judgment of divorce. Under it the amount of support for the two minor children was hopelessly inadequate and far less than recommended by the Friend of the Court. It was a niggardly $2.84 a . week for each child. It represented only the return on certain bank stock owned by the husband. At that time plaintiff wife was being assisted financially by her father. The court inquired again and again as to the parties’ understanding of the agreement which contained a commitment by the wife never to seek modification of the support provisions of the judgment of divorce. While a disenchanted wife may stipulate herself out of court as to alimony, quite obviously she cannot do the same thing as to the support of minor children who are under the continuing jurisdiction of the court until majority, and in some instances longer. With this necessary prologue, we go to the precise question here presented.

Despite the stipulation, the wife filed a petition to modify the judgment as to child support. The matter was referred to the Friend of the Court. His recommendation was for $30.50 per week per child, arrived at by applying an arbitrary formula used by his office to the husband’s net salary. The trial judge adopted it. From this order of modification, the husband appealed of right. He included a prayer to set aside the original judgment of divorce as being a fraud on the court.

Only two things in this case are of significance to the trial bench and to the profession. The first is the claimed inviolability of the settlement agreement as to child support. It is void. As we earlier noted, irrespective of the agreement, the trial judge retained inherent jurisdiction to modify the judgment as to support payments upon a proper showing at any time.

The second question is, will we as an appellate court substitute our judgment for that of the trial chancellor in this area of recognized discretion in fixing the amount of support? The answer is, in all but unusual cases, we will not, even though our review is de novo and we are empowered to do so.

We think the case at bar falls within the exception. It is true that the court followed the formula figure recommended by the Friend of the Court. It was not obligated to do so. Neither are we. We find the change of circumstance shown here is not of sufficient substance to justify the drastic increase ordered. We modify it to provide for weekly payments of $25 per child per week.

Our holding here is to be given effect as of the effective date of the trial judge’s order increasing the support payments to $30.50 per week per child.

If the defendant has been complying with the trial court’s amended order, any excess over the amount specified in this opinion shall be applied to any arrearage due from the defendant. If no arrearage exists, any balance over shall be credited against future payments.

We retain no jurisdiction. This is to say, our order here is no more eternally inviolate than was that of the. trial court originally. The circuit court maintains continuing jurisdiction.

As to the petition to set aside the original judgment, the action of the trial judgé is affirmed.

No costs, neither party having prevailed in full.

Lesinski, C. J., concurred.