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stating that there is a "rebuttable presumption in favor of setting support at the level recommended by the child support formula"
Summary of this case from Ellis v. DomalikOpinion
Docket No. 142033.
Decided December 8, 1992, at 9:30 A.M.
Brian K. Kirkham, P.C. (by Brian K. Kirkham), for the plaintiff.
Dobbins Sherman, P.C. (by Vicki Mae Sherman), for the defendant.
Before: HOOD, P.J., and WAHLS and McDONALD, JJ.
Plaintiff appeals as of right from an order of the Calhoun Circuit Court that modified an earlier judgment of divorce. We affirm.
Plaintiff and defendant were divorced in May 1986. The judgment of divorce granted the parties joint legal custody of their two minor children, Shawn and Jeffrey, with defendant having physical custody. Plaintiff was ordered to provide support in the amount of $100 a week a child for a period of six years. Plaintiff later petitioned the trial court for a change in custody of the parties' elder child, Shawn, and, if a change was granted, for cancellation of support with regard to that child. Defendant agreed to a six-month trial period during which plaintiff would have temporary custody of Shawn, but asked that no change be made in the support previously ordered. The trial court granted plaintiff temporary custody, abated plaintiff's support obligation with respect to Shawn, and ordered a friend of the court investigation. Following an evidentiary hearing, plaintiff was granted physical custody of Shawn and ordered to pay support in the amount of $220 a week for Jeffrey pursuant to the friend of the court's child support formula.
The judgment also provided that the amount of support "cannot be changed regardless of the circumstances during said period." This provision does not restrict the power of the trial court to alter the amount of child support ordered by the judgment. Johns v Johns, 178 Mich. App. 101, 106; 443 N.W.2d 446 (1989).
The award of child support rests in the sound discretion of the trial court, and its exercise of discretion is presumed to be correct. Thames v Thames, 191 Mich. App. 299, 306; 477 N.W.2d 496 (1991). The party appealing a support order has the burden of showing that a mistake has been made. Beason v Beason, 435 Mich. 791, 804; 460 N.W.2d 207 (1990). A trial court may enter a support order that deviates from the friend of the court's child support formula only if it determines that application of the formula would be unjust or inappropriate. MCL 722.27(2); MSA 25.312(7)(2).
Plaintiff first argues that the trial court erred in modifying his support obligation because defendant did not plead or prove a change in circumstances that would justify the modification. Rather, plaintiff argues, the trial court simply should have canceled his obligation regarding Shawn and continued the $100 a week payment ordered for Jeffrey. We disagree.
There appears to be some question in the wake of the enactment of 1990 PA 243 and 1990 PA 291 concerning whether a "change in circumstances," as that term has traditionally been used, must still be shown before a support order may be modified. The two public acts amended the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., and the divorce laws, MCL 552.1 et seq.; MSA 25.81 et seq., so as to create a rebuttable presumption in favor of setting support at the level recommended by the child support formula. See MCL 722.27(2); MSA 25.312(7)(2), MCL 552.17(2); MSA 25.97(2). Accordingly, it appears to us, as it did to the trial court, that any substantial change in the amount of support recommended in a new friend of the court report from the amount recommended in the report prepared when the judgment of divorce was entered may constitute a "change in circumstances" that would justify the modification of a support order. See MCL 722.27(1)(c); MSA 25.312(7)(1)(c) (the court may "[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances" [emphasis added]). Because the new friend of the court report prepared in this case recommended a substantial increase in the amount of support ordered for Jeffrey, we agree with the trial court that modification was proper.
Alternatively, a "change in circumstances" that alone would justify modification, ignoring for a moment the other changes argued by defendant, occurred upon the change in the custody of Shawn. Rohloff v Rohloff, 161 Mich. App. 766, 769; 411 N.W.2d 484 (1987). The amount of support for Jeffrey recommended by the child support formula is presumed to be appropriate, regardless of the amount of support ordered in the judgment of divorce, and defendant's failure to expressly plead changed circumstances is not fatal to the modification of the support order. Proudfit v O'Neal, 193 Mich. App. 608, 611; 484 N.W.2d 746 (1992).
Plaintiff also argues that the trial court erred in calculating the amount of support recommended by the child support formula. The thrust of plaintiff's argument is that the trial court should not have used his 1990 income in setting support, but rather his projected income for 1991, which plaintiff argues would have been substantially less than his 1990 income. We disagree. We consider the trial court's decision to be one within its discretion and conclude that no abuse of discretion occurred. We also note that plaintiff erroneously states on appeal that defendant's weekly wage income is $1,402.77, when, in fact, this amount is the wage income defendant receives biweekly. If plaintiff's 1991 income is substantially less than the amount he earned in 1990, his remedy is to seek further modification of the support order.
Affirmed.