Opinion
Docket No. 53147.
Decided February 3, 1982.
Starr Cornell, for plaintiff.
Dunnings Canady, P.C., for defendant.
The parties were divorced on May 2, 1979. They agreed to joint custody of their two minor children. Plaintiff was granted physical custody of the children for 42 weeks each year. Defendant was granted physical custody for the 10 weeks of summer vacation.
The judgment of divorce provided under the heading of "CHILD SUPPORT" that plaintiff pay defendant $30 per week per child during those periods in which physical custody of the children was with defendant. Defendant was not ordered to pay any child support. The judgment further provided under the rubric "MEDICAL AND OTHER EXPENSES" that plaintiff pay all medical expenses of the children. Additionally, it was ordered that each party assume responsibility for clothing and other expenses of the minor children during those periods in which a particular party had physical custody of the children.
On June 4, 1980, the court heard oral arguments on plaintiffs' petition to require defendant to pay child support. At the conclusion of the hearing, the trial court gave the defendant the choice of paying $15 per week per child for 52 weeks or $20 per week per child for 42 weeks, thereby crediting defendant for the time in the summer when the children stayed with her. Ultimately, an order dated August 4, 1980, was entered which required defendant to make support payments in the amount of $15 per week for each child. It is from this order which defendant appeals as of right.
Defendant first asserts that the trial judge erred by ordering a change of support without requiring proof that a change in the circumstances of the children justified the same. On the facts of this case, we find no error.
Generally, support provisions may not be modified absent a change of circumstances. Andris v Andris, 77 Mich. App. 715, 718-719; 259 N.W.2d 203 (1977). However, when a divorce decree does not provide for support, such maintenance may be provided by the court and does not depend on a change of circumstances. West v West, 241 Mich. 679, 686; 217 N.W. 924 (1928), Ebel v Brown, 70 Mich. App. 705, 709; 246 N.W.2d 379 (1976). In this case, the parties agreed to the child support provisions in the original decree. However, an agreement by the parties on support will not suspend the authority of the court to enter a support order. West, supra, 683-684.
Defendant argues that the divorce decree in the present case did require her to pay support, and the above cases are therefore distinguishable. As noted above, the provision in the decree entitled "CHILD SUPPORT" did not order defendant to pay support for the time the children resided with their father. Plaintiff specifically relies on the provision in the decree entitled "MEDICAL AND OTHER EXPENSES", however, which required her to pay for the clothing and other expenses of the children during those periods when they were in her physical care and custody.
In our opinion, this provision does not constitute support. Support generally encompasses payments made by the noncustodial parent to the custodial parent for the support of the children. The noncustodial parent typically pays the children's expenses during visitation. However, assuming, arguendo, that the provision entitled "MEDICAL AND OTHER EXPENSES" is correctly construed as a requirement of child support, our result would be no different. We agree with Judge BRENNAN'S dissent in Ballard v Ballard, 40 Mich. App. 37, 42; 198 N.W.2d 451 (1972), that a support award may be so minimal as to constitute no real support obligation at all. In such cases, we believe Judge BRENNAN is correct in his conclusion that a change of circumstances need not be shown before the support award is modified.
Defendant also asserts that the trial court erred in basing the support order on the weekly income figure reported to be her earnings in the Friend of the Court's recommendation. Defendant argues that an evidentiary hearing should have been conducted and other factors considered in determining the support figure.
Defendant does not assert that her earnings were less than that reported by the Friend of the Court nor that an express request for an evidentiary hearing was denied. Consequently, we believe the following excerpt from Ebel, supra, 710, is applicable:
"Further, in that no change of circumstances need be shown where the court is involved with a decree of support not specified in the original divorce decree, the record need only indicate that the circumstances of the parents and the welfare of the child require support. Ballard v Ballard, supra, 42 (BRENNAN, J., dissenting), West v West, supra, 686. We do not feel an evidentiary hearing is necessary as would be the case if modification of an existing support order were the case. See Stolberg v Stolberg, 41 Mich. App. 305; 200 N.W.2d 110 (1972), Ewald v Ewald, 14 Mich. App. 665; 166 N.W.2d 49 (1968), Bowler v Bowler, 351 Mich. 398; 88 N.W.2d 505 (1958). However, where there has been one requested, the court should so grant. Here there was an express request for such a hearing." (Emphasis in original.)
Of course, nothing in this opinion precludes defendant from seeking a modification of the support award and an evidentiary hearing.
Affirmed.