Dunn v. Dunn

307 N.W.2d 424, 105 Mich. App. 793

• Court: Michigan Court of Appeals
• Decided: April 23, 1981
• Docket: Docket 49685
• Status: Published

Opinions

Per Curiam.

Plaintiff appeals by right the order of the trial court modifying a previous divorce judgment and providing in part that he pay a total of $27 per week for the support of his two minor children.

Plaintiff and defendant were married in 1965 while plaintiff was attending a seminary in preparation for ordination in the United Methodist Church. During their marriage, one child was born to the parties, and they adopted another. During the summers of 1968, 1969, and 1971, the parties were involved with the Ecumenical Institute and a related religious order, the Order Ecumenical. It was during this period that plaintiff became interested in pursuing his ministry through full-time involvement with the order. After leaving the seminary, plaintiff was assigned to a church in Comstock, Michigan, and was ordained a minister in the United Methodist Church.

In May of 1974, the parties were divorced. Plaintiff was granted custody of the two minor children and no support order was entered against defendant. In September of 1974, plaintiff joined the Order Ecumenical. He is currently assigned to the order by the bishop of the West Michigan Conference of the United Methodist Church. Pursuant to his work with the order, plaintiff was assigned to various places in the United States. The parties’ two children accompanied him on these assignments until 1977 when plaintiff voluntarily relinquished custody of the parties’ oldest child to defendant. Plaintiff has recently relinquished custody of the youngest child as well, as a result of his pending assignment to Calcutta, India.

At the hearing, the parties testified as to their relative financial positions. As a member of the Order Ecumenical, plaintiff has taken vows of poverty and obedience. Members of the order are given a place to live and a food allowance for their families and are paid a stipend roughly commensurate with the poverty level of the nation to which they are assigned. Plaintiff testified that while assigned to various locations in the United States with his two children this stipend amounted to approximately $84 per month. He further testified that when he took up his assignment in India the stipend would be closer to $12 per month. Assignments are made by the superiors of the order, and plaintiff testified that members are sometimes assigned to take secular employment. When so employed, members of the order continue to receive only their stipend, and all remaining net income is turned over to the order. Plaintiff testified that he had been assigned to such jobs by the order and that he had earned as much as $14,000 per year through such jobs. All of the net income plaintiff earned in these jobs was turned over to the order. The order provides medical, dental, and optical insurance for the families of its members, and plaintiff agreed to continue to carry such coverage for his children. Defendant is employed by radio station WJR as a producer and at the time of the hearing earned a monthly take-home pay of $916. Defendant also testified that she had recently purchased a home in Grosse Pointe Woods, Michigan, for $38,900.

At the close of the hearing, the trial court held that plaintiffs actions constituted a willful disregard for the interest of his children and ordered, inter alia, that he pay $27 per week in child support until the oldest child reached the age of 18 and $19 per week thereafter until the youngest child reached the age of 18.

On appeal, plaintiff claims that the trial court erred in determining the amount of child support ordered. Although our review of child support matters is traditionally de novo, we do not exercise that review in a vacuum. Much discretion is vested in the trial court, and the exercise of that discretion generally is presumed to be correct. Hakken v Hakken, 100 Mich App 460, 464; 298 NW2d 907 (1980), Causley v LaFreniere, 78 Mich App 250, 254-255, fn 2; 259 NW2d 445 (1977). The party appealing from the child support order bears the burden of showing a clear abuse of discretion. Hakken, supra. Because of the historically equitable nature of child support proceedings, however, such an abuse may be established more readily than in cases historically heard at law, and we will reverse or modify the award if convinced that we would have reached a different result if in the position of the trial court. Hakken, supra, Vaclav v Vaclav, 96 Mich App 584, 589; 293 NW2d 613 (1980), Causley, supra.

With these principles in mind, we note first that one of the factors to be considered in determining the amount of child support is the parent’s ability to pay. The court is not, however, limited to consideration of the parent’s actual income and may also look to the parent’s unexercised ability to earn. Vaclav, supra, 588, Heilman v Heilman, 95 Mich App 728, 733; 291 NW2d 183 (1980), lv den 409 Mich 893 (1980), Travis v Travis, 19 Mich App 128, 130; 172 NW2d 491 (1969). The trial court’s award of child support in the instant case was based largely on the fact that plaintiff had demonstrated in the past an ability to earn much more than the amount of his stipend from the order.

Recent decisions concerning modification of existing child support orders make it clear, however, that there are factors which limit a court’s reliance on a parent’s unexercised ability to earn. In Moncada v Moncada, 81 Mich App 26, 31; 264 NW2d 104 (1978), this Court held that "absent bad faith or willful disregard for the interests of the dependent children, a voluntary reduction of income is not an adequate reason for refusing modification of a support order”. See Hakken, supra, 464, Rutledge v Rutledge, 96 Mich App 621, 625; 293 NW2d 651 (1980).¹ If a voluntary reduction in income made in good faith and without an intent to jeopardize the welfare of dependent children can justify a reduction in child support payments despite necessarily strong proof of unexercised ability to earn, the same rule should apply to cases such as that now before us where the issue of child support is being considered for the first time. Accordingly, absent bad faith or willful disregard for the interests of the dependent children, the fact that a parent is voluntarily earning less than is possible is not an adequate reason for ordering child support at a rate much higher than the parent’s actual income would dictate.

In the instant case, the record clearly establishes plaintiffs good faith and the lack of willful disregard for the interests of his children. Plaintiffs interest in and association with the Order Ecumenical began long before his divorce from defendant and there is no hint in the record before us that plaintiff became involved in the order merely to avoid his obligations to his children. The order makes provisions for the care of the children of its members, and it is undisputed that plaintiff and the order adequately provided for his children while he retained custody. Plaintiff has voluntarily agreed to continue medical, dental, and optical insurance coverage on his children through the order and has agreed to pay child support commensurate with his actual income. Keeping in mind the appropriate standards of review discussed earlier, we believe that the trial court has committed a clear abuse of discretion. Child support should be ordered on the basis of plaintiffs actual income, and this cause is accordingly remanded for a redetermination of the child support award. While plaintiffs actual income is made up of both his stipend and the reasonable value of the room and board which he receives, the award should reflect plaintiffs ability to pay.

Given our disposition of this case, there is no need to address the other issues raised by plaintiff on appeal.

Reversed and remanded.

1 In Gerlach v Gerlach, 82 Mich App 605; 267 NW2d 149 (1978), this Court affirmed the trial court’s refusal to modify an award of alimony. The modification was sought on the basis of an apparently voluntary reduction in income. This Court’s one-page decision did not directly address the issue of whether the reduction in income was made in bad faith, but the fact that the Court cited Moneada while finding no abuse of discretion under the circumstances presented suggests that the court implicitly found a lack of good faith.