Edwards v. Edwards

481 N.W.2d 769, 192 Mich. App. 559

• Court: Michigan Court of Appeals
• Decided: January 21, 1992
• Docket: Docket 119768
• Status: Published

Opinions

Mackenzie, P.J.

The plaintiff-mother appeals as of right from an order modifying child support and awarding attorney fees. We reverse.

The parties were divorced in 1979. Plaintiff was awarded custody of the parties’ two minor children, Michelle (born November 7, 1973) and Michael (born May 31, 1977). The defendant-father was ordered to pay child support of $62.50 a week for each child.

In October 1981, the amount of support was increased to $80 a week for each child, or a total of $160 a week for both children.

Six years later, on November 13, 1987, plaintiff filed the instant motion for an increase in child support and for attorney fees. Defendant responded with a motion to change custody. Plaintiff requested $300 a week for both children, retroactive to the filing of her motion. Defendant indicated a willingness to pay, prospectively, $200 a week for both children. Although the child support guidelines set support at $295 a week, the friend of the court eventually recommended that the support level be modified to $277 a week for both children.

Following a June 1989 hearing, the trial court concluded that support should be set at $120 a week for each child, or a total of $240 a week for both children, with the increase retroactive to November 7, 1988. Additionally, the court denied plaintiff’s request for $5,336 in attorney fees, instead ordering defendant to pay $3,000 in costs and attorney fees. Defendant’s motion to change custody was adjourned for resolution at a later time.

On appeal, plaintiff first argues that the friend of the court’s child support recommendation, which was less than the amount recommended by the child support guidelines, was erroneous. A review of the record and the file indicates that plaintiff did not challenge the recommendation or the friend of the court’s method of calculation in determining the appropriate level of support. The issue is therefore not properly preserved. Bajis v Dearborn, 151 Mich App 533; 391 NW2d 401 (1986).

Plaintiff next argues that the trial court’s child support award, which was also less than the guidelines’ recommendation, constituted an abuse of discretion. We agree.

A trial court has the power under MCL 552.17; MSA 25.97 to modify a child support order upon a showing by the petitioning party of a change in circumstances justifying modification. Sayre v Sayre, 129 Mich App 249; 341 NW2d 491 (1983). Such modification is within the sound discretion of the court. Jacobs v Jacobs, 118 Mich App 16; 324 NW2d 519 (1982). When entertaining a petition for modification, all relevant factors should be considered, including the father’s income, the mother’s income, and the needs of the children. Sayre, supra. The trial court’s findings of fact are reviewed under the clearly erroneous standard. See Beason v Beason, 435 Mich 791; 460 NW2d 207 (1990). However, the court’s ultimate disposition is subject to de novo review. See Schubring v Schubring, 190 Mich App 468; 476 NW2d 434 (1991); Burkey v Burkey (On Rehearing), 189 Mich App 72; 471 NW2d 631 (1991). See also Beason, supra, p 798. Upon de novo review, this Court will not reverse that disposition unless convinced we would have reached a different result in the trial court’s place. Burkey, supra, p 78. We note that, effective October 10, 1990, the trial court may enter an order that deviates from the friend of the court support formula only if it determines that application of the formula would be unjust or inappropriate. See MCL 722.27(2); MSA 25.312(7X2), as amended by 1990 PA 245, § 1.

In this case, plaintiff testified that she was employed as a public school teacher. Her gross income in 1988 was $41,497. Plaintiff contributes $75 each pay period to a retirement annuity plan. At the time of the hearing, she had $10 in savings. Plaintiff has a mortgage on her home, a car loan, and owes money to twelve stores and financial institutions.

The parties’ younger child, Michael, is enrolled in school at St. Scholastica. His tuition and fees are approximately $2,000 a year. He also attends a "latchkey program” costing $90 a month. Plaintiff pays for his transportation to and from school. Both Michael and Michelle are involved in several extracurricular activities requiring some expense. Additionally, Michelle has weekly piano lessons. Michelle took dance classes and Michael took piano lessons until 1988, when they became too expensive. Michael would also like to take karate lessons.

Plaintiff is enrolled in a master’s degree program at Michigan State University. According to plaintiff, the degree is required by the state to maintain her position with the school system. In order to cover her tuition expense and Michael’s tuition, plaintiff was forced to withdraw almost $5,500 of her $6,200 retirement annuity.

Defendant has moved to Texas, where he is a manager employed by ibm Corporation. He pays the cost of transportation when the children visit him. Defendant had a 1988 gross income of $89,975, plus a contribution of $1,836 to a 401(k) plan. He has remarried and his new wife, also a manager at ibm, earns approximately $61,700 a year. They have no children. They have two cars, a Mercedes and a bmw. Their mortgage payment is $5,000 a month, or $1,250 a week. Additionally, defendant has an $11,000 debt consolidation loan and balances on three charge cards. According to defendant, he has $300 in savings.

On the basis of the evidence, we believe that the trial court abused its discretion in setting support at $240 a week for both children, and we are convinced that we would have reached a different result in the trial court’s place. The evidence indicates that these are two active teen-agers. According to the testimony, their educational and extracurricular activities alone cost more than $100 a week. They have incidental expenses, and of course they must be fed, clothed, and sheltered. The guidelines’ recommendation, although not then mandatory, was $295 a week for both children. Plaintiff’s annual income was less than half of defendant’s personal income. It was approximately $110,000 less than defendant’s household income. See Beverly v Beverly, 112 Mich App 657; 317 NW2d 213 (1981); Carlston v Carlston, 182 Mich App 501; 452 NW2d 866 (1990). We think that, under the circumstances of this case, including the needs of the children and the disparity in the parties’ incomes, the trial court’s child support award was insufficient.

Finally, we agree with plaintiff that the trial court erred in awarding increased support retroactive to November 1988 rather than to November 1987, the date of her petition, and in awarding plaintiff only a portion of her attorney fees. The trial court acknowledged that the previous support level of $160 a week for both children was unreasonably low. There was evidence that because of the insufficiency of the previous support order, plaintiff was forced to nearly deplete her retirement annuity. As noted above, there is a vast disparity between plaintiff’s household income and defendant’s. Moreover, there is some indication that both plaintiff’s attorney fees and the delay in ordering increased child support were caused in part by defendant’s adjourned request for a change in custody. Under these circumstances, we conclude that increased support should be retroactive to the date the petition was filed. See Johns v Johns, 178 Mich App 101; 443 NW2d 446 (1989). We also agree with plaintiff that the trial court abused its discretion in awarding plaintiff only a portion of her attorney fees. See Bone v Bone, 148 Mich App 834; 385 NW2d 706 (1986).

Reversed and remanded for redetermination of child support retroactive to November 1987 and award of $5,336 in attorney fees to the plaintiff. We retain no further jurisdiction.

Gribbs, J., concurred.