Opinion
Docket No. 81013.
Decided December 3, 1985.
Thomas Peralta, for plaintiff.
Max D. McCullough, for defendant.
Defendant appeals from an "order amending judgment of divorce and setting amount of child support arrearages" which increased defendant's child support obligations from $25 per week per child to $40 per week per child.
On December 22, 1980, a default judgment of divorce was entered in the trial court which ordered defendant to pay child support of $25 per week per child. Plaintiff and defendant have four children so the weekly child support payment totalled $100. This amount was $80 per week less than the friend of the court's recommendation. Approximately three years later, plaintiff filed a motion alleging that defendant refused to make support payments and failed to report raises in his income. This matter was referred to the friend of the court which concluded that the child support should remain at the same amount. Both defendant and plaintiff filed written objections to the friend of the court's recommendation. Plaintiff argued that the child support payments should be increased and defendant argued that they should be decreased. The circuit court then referred this matter back to the friend of the court for further recommendation in light of the parties' objections. The friend of the court then recommended that defendant should pay child support in the sum of $172 per week. Plaintiff accepted this recommendation, but defendant objected arguing that plaintiff failed to present any proofs as to any increased need or change in circumstances with the minor children and that the friend of the court's recommended minimum support schedule should not be used without other proofs. The trial court granted plaintiff's motion for acceptance following brief oral argument. Defendant objected to entering the order, and the trial court stated: "Your client told me that he takes home $350 per week". When defense counsel did not disagree with this fact, the court denied the request for an evidentiary hearing and entered an order increasing child support to $150 per week. The terms of the final order required defendant to pay $40 per week per child.
Defendant now appeals as of right from the circuit court's decision. It is well-settled that the trial court has the discretion to modify child support orders, including the discretion to cancel arrearages retroactively. Ozdaglar v Ozdaglar, 126 Mich. App. 468, 473; 337 N.W.2d 361 (1983). Before a court can modify a child support provision contained in a divorce decree, either parent or the friend of the court must petition for the modification. McCarthy v McCarthy, 74 Mich. App. 105; 253 N.W.2d 672 (1977). If the parties fail to consent to the modification and there exists a factual dispute concerning the circumstances relating to the petition for modification, the court is obliged to hold an evidentiary hearing. Cochran v Buffone, 137 Mich. App. 761, 766; 359 N.W.2d 557 (1984). The trial court must consider all relevant factors in determining whether there has been a sufficient change in circumstances to justify modification of the child support provisions. Jacobs v Jacobs, 118 Mich. App. 16; 324 N.W.2d 519 (1982). In reaching its determination, the trial court may consider the report of the friend of the court, but the report is inadmissible as evidence unless all the parties agree to the contrary. McCarthy, supra. Review of the trial court's decision is de novo; however, great weight is to be given to the trial judge's finding of fact. Krachun v Krachun, 355 Mich. 167; 93 N.W.2d 885 (1959); McCarthy, supra.
We feel that the trial court erred in denying defendant's request for an evidentiary hearing. The defendant objected to the friend of the court's recommendation, claiming that there has been no changed circumstances since the divorce judgment was entered. Plaintiff argued that there was a sufficient change in circumstances and the friend of the court accepted plaintiff's argument. Despite this, the trial court seemed to be solely concerned with defendant's income, noting that there was no dispute as to that amount. We note, however, that defendant's income had decreased approximately $20 per week since the judgment granting the divorce was entered. In McCarthy, supra, p 109, this Court stated:
"There is no question that the trial court erred in its modification order of February 26, 1975, both procedurally and substantively. The order was made without a hearing and there was no agreement expressed or implied to allow the court to utilize the Friend of the Court's recommendation. [Citations omitted.] Additionally, the recommendation was based totally upon the fact of defendant's increase in salary. All relevant factors are to be considered in determining whether there has been a sufficient change in circumstances. [Citations omitted.] The isolated consideration of income is error. [Citations omitted.]"
Likewise, in the instant case, the trial court erred in relying solely on defendant's income as a basis for increasing child support. The trial court should have granted defendant's request for an evidentiary hearing on this matter. We therefore remand for a hearing in accordance with Cochran, supra, pp 767-768. We do not retain jurisdiction.