Kosch v. Kosch

592 N.W.2d 434, 233 Mich. App. 346
CourtMichigan Court of Appeals
DecidedMarch 23, 1999
DocketDocket 197683
StatusPublished
Cited by32 cases

This text of 592 N.W.2d 434 (Kosch v. Kosch) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kosch v. Kosch, 592 N.W.2d 434, 233 Mich. App. 346 (Mich. Ct. App. 1999).

Opinions

Per Curiam.

Defendant appeals by leave of this Court an order modifying the parties’ judgment of divorce to increase child support and denying her motion for attorney fees. We affirm.

Plaintiff and defendant were married in 1984 and divorced in 1991. They share joint legal and physical custody of their two minor children, each having physical custody 372 days each week. The judgment of divorce provided that plaintiff would pay to defendant $192.31 a week, for each child, in child support and stated that, by agreement of the parties, this amount of support was not based on or in accordance with the Michigan Child Support Guidelines, but, rather, was based on the parties’ average income as reflected in their joint tax returns for the tax years 1984 through 1990. The trial court failed to follow the prescribed statutory requirements in deviating from the child support guidelines pursuant to MCL 552.16; MSA 25.96.1

The facts of this case establish that both parents, despite their separation from each other, remain deeply involved in the fives of their children. Plaintiff testified that the children participate in a wide variety [349]*349of activities, including ice skating, baseball, and soccer. He takes the children to his private country club and pays for golf lessons. He travels with the children to his condominium in Florida and has taken them on trips to Jamaica, Las Vegas, Harbor Springs, and Puerto Rico. Plaintiff attends the theater and movies with his children. They have visited Busch Gardens, Jungle Larry’s, Disney World, and Cedar Point.

Defendant testified that she does not see any deficiencies in her children’s lives in terms of culture, education, or travel. It is undisputed by either party that the children are healthy and well-adjusted. The parties agree that their physical custody arrangement is working out well. Defendant states that if she is given an increase in child support payments, she will use the money to take the children on educational trips to Hawaii, Africa, and space camp in Florida. She would also increase the children’s exposure to art, music, and dance. Defendant believes the children are not living the lifestyle that they are entitled to. Plaintiff states that he is willing to pay for everything the children need, not necessarily everything that they want.

In September 1994, defendant filed a motion to modify the judgment of divorce to increase child support on the basis of changed circumstances. Specifically, plaintiff’s income had increased substantially, from $1,033,193 to $1,588,454, and the children’s needs had increased as they had gotten older. After a three-day evidentiary hearing, the trial court found that plaintiff’s income had increased by fifty-four percent and ordered that child support be increased proportionately to $312.50 a week, for each child, for a total of $625 a week.

[350]*350Defendant first argues on appeal that the trial court erred in deviating from the amount of support established by the Michigan Child Support Formula, $786.50 a child or $1,573 a week for the two children, and relying instead on an agreement made by the parties at the time of the divorce when it originally approved the stipulated child support award. Modification of a child support order is a matter within the sound discretion of the trial court. Good v Armstrong, 218 Mich App 1, 4-5; 554 NW2d 14 (1996). The burden is on the party appealing a child support order to show that the trial court clearly abused its discretion. The trial court’s findings of fact are reviewed for clear error, but its ultimate decision is subject to review de novo. Reversal of the trial court’s decision is appropriate only if this Court is convinced that it would have reached a different result. Id.

A trial court may modify a child support order if modification is justified by changed circumstances. MCL 552.17; MSA 25.97; Nellis v Nellis, 211 Mich App 226, 229; 535 NW2d 240 (1995). The requirements governing modification of child support are set out in MCL 552.17; MSA 25.97, which provides in subsection 2 that a court shall order support in accordance with the child support formula, but may deviate from the formula if the court determines that application of the formula would be unjust or inappropriate. If it deviates, the court must set forth in writing or on the record how the order deviates from the formula and the reasons why it finds that application of the formula would be unjust or inappropriate. See Nellis, supra at 231-232. MCL 552.17(3); MSA 25.97(3) allows the court to enter a support order agreed to by the [351]*351parties that deviates from the formula, if the court complies with the requirements of subsection 2.

Defendant contends that the trial court erred in deviating from the amount of child support established by the formula when it modified the child support order because the amount established by the formula is presumptively correct and provides for the reasonable needs of children of wealthy parents. Defendant further argues that the court erroneously relied on the parties’ earlier agreement because, in deviating from the amount established by the formula when it entered the divorce judgment without explaining why, the trial court did not comply with the provisions of MCL 552.17(2); MSA 25.97(2). Moreover, the agreement was erroneous. on its face, because the stipulated support amount was not the amount established by the child support formula for the parties’ average income for the years., 1984 through 1990.

We find that the trial court complied with the provisions of MCL 552.17(2); MSA 25.97(2) in modifying the child support order by first identifying the support amount established by the child support formula and then specifying in what manner it was deviating from the amount established by the formula and why. The court found that the child support established by the formula would be inappropriate in this case because the parties’ earlier agreement evidenced their intent that the children enjoy a more modest standard of living than that provided for by the formula and because the children’s reasonable needs were being met. The court went on to reason that, in keeping with the spirit of the stipulated child support award in the divorce judgment, an increase in child support [352]*352should mirror the increase in plaintiffs average income. Also, the trial court noted that if it believed the reasonable needs of the children were not being met, it would not follow this approach. As the court stated:

The children’s welfare must be the first priority of the Court. And in the absence of the agreement made by the parties[,] this Court sees no reason why it would deviate from the guidelines.

The trial court then referenced the value of the property settlement in which defendant received approximately $1,200,000 in marital assets. Moreover, under § 12 of the judgment, a college trust fund was referenced and plaintiff was held responsible for all the costs of four-year college educations for the children. The court then stated that the court’s resolution provides for the reasonable needs of the children while discouraging the parties from negotiating a favorable property settlement or alimony award by agreeing to a child support amount below the guidelines’ recommendation and then later petitioning the trial court for an increase in child support payments.

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Bluebook (online)
592 N.W.2d 434, 233 Mich. App. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosch-v-kosch-michctapp-1999.