Beverly v. Beverly, Docket No. 50389

• Decision Date: 31 March 1982
• Docket Number: Docket No. 50389
• Citation: 317 N.W.2d 213,112 Mich.App. 657
• Parties: Leontine BEVERLY, Plaintiff-Appellee, v. Edmond BEVERLY, Defendant-Appellant. 112 Mich.App. 657, 317 N.W.2d 213
• Court: Court of Appeal of Michigan — District of US

Page 213

317 N.W.2d 213

Leontine BEVERLY, Plaintiff-Appellee, v. Edmond BEVERLY, Defendant-Appellant.

Docket No. 50389.

112 Mich.App. 657, 317 N.W.2d 213

Court of Appeals of Michigan.

Submitted May 13, 1981.

Decided Dec. 17, 1981.

Released for Publication March 31, 1982.

[112 MICHAPP 658] Professional Legal Centers, P. C. by Mary Beth Leija, Detroit, for plaintiff-appellee.

Gerald S. Surowiec, Detroit, for defendant-appellant.

[112 MICHAPP 659] Before WALSH, P. J., and RILEY and KUHN, ^* JJ.

PER CURIAM.

Defendant appeals from a circuit court order abating child support and canceling arrearages owed by plaintiff under a judgment of divorce.

The judgment was entered on March 20, 1975. Custody of two minor children was awarded to the plaintiff mother. Defendant father was ordered to pay child support in the amount of $40 per child per week. Immediately prior to the entry of the judgment, plaintiff and defendant were each earning approximately $19,000 per year.

On June 10, 1977, the judgment was modified to provide that defendant be given custody of the children. Plaintiff was ordered to pay child support in the amount of $22 per child per week. On April 27, 1978, the judgment was modified again to provide that plaintiff pay support in the amount of $25 per child per week, retroactive to November 25, 1977. On August 2, 1979, the judgment was modified for a third time. This time the court canceled arrearages which had accrued under the judgment and relieved the plaintiff of her child support obligation as of June 16, 1979. Defendant's motion for rehearing was granted on November 9, 1979.

At the rehearing, plaintiff mother testified that she was employed with the Pontiac Board of Education at a salary of $19,000 per year. Plaintiff stated that her monthly rent for an apartment amounted to $395 and that her debts were "way, way above what [she could] handle". She also indicated that she had health problems due to an [112 MICHAPP 660] injury from a car accident in 1978. Plaintiff then drove a 1979 automobile.

Defendant father testified that he was employed as the Assistant Superintendent of Inkster Public Schools and earned approximately $31,000 per year. Defendant had remarried since the divorce and his wife was a physician who earned approximately $50,000 per year. Defendant testified that he was then living in a house purchased for $120,000, of which $90,000 was still owing. Defendant and his new wife also owned a 1977 Oldsmobile and a 1979 Cougar. Payments were being made on both of these vehicles.

At the conclusion of the hearing, the court reaffirmed the order which relieved plaintiff of her support obligation and canceled arrearages owed by plaintiff. The court found that a change in circumstances had occurred based on defendant's increase in earnings and his second wife's earnings of $50,000. The court also noted defendant's $120,000 residence and the two automobiles owned by defendant and his new wife.

In rendering its decision the court stated:

"There has been a change in circumstances as far as his [Defendant's] earnings are concerned. The records reflect that his present earnings are approximately $30,000 a year and his present wife's earnings are $50,000 a year. That makes a joint income of approximately $80,000 a year.

"They have purchased a home two years ago which he testified to in the amount of $120,000.

"Both he and his wife have a 1977 Oldsmobile and a 1979 Cougar.

"I think that in view of the Defendant's present income and the circumstances under which he resides that the Plaintiff should not be required to contribute toward the support of the two minor children."

[112 MICHAPP 661] Defendant argues on appeal that the trial court abused its discretion in ruling that the plaintiff should be relieved of her obligation to contribute toward the support of the two minor children solely because of the defendant's increase in income and generally improved financial status resulting partially from his remarriage. We agree and remand for a new hearing.

Both parents are obligated to support a minor child. M.C.L. Sec. 722.3; M.S.A. Sec. 25.244(3). When granting a divorce, a court has the jurisdiction to award custody of minors to either party and "may require either parent to pay such allowance as may be deemed proper for the support of each child * * * ", M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1). The court, therefore, may fashion a child support order based upon the relative ability of each parent to pay. Charlton v. Charlton, 397 Mich. 84, 243 N.W.2d 261 (1976); Watkins v. Springsteen, 102 Mich.App. 451, 301 N.W.2d 892 (1980). ¹

The party petitioning for a modification of an order for child support bears the burden of establishing a change in circumstances that would justify an alteration of the divorce judgment. McCarthy v. McCarthy, 74 Mich.App. 105, 108, 253 N.W.2d 672 (1977). An increase in the custodial parent's income and the general improvement in that parent's financial status by virtue of a favorable remarriage is not, in itself, a sufficient change [112 MICHAPP 662] in circumstances to relieve the noncustodial parent totally of the obligation to contribute to the support of the children. See McCarthy v. McCarthy, supra, 108-109. ² In determining whether there has been a change in...