Borowsky v. Borowsky

• Decision Date: 23 January 2007
• Docket Number: Docket No. 262986.
• Citation: 733 N.W.2d 71,273 Mich. App. 666
• Parties: Joseph Francis BOROWSKY, Jr., Plaintiff/Cross-Defendant-Appellee/Cross-Appellant, v. Susan Heberton BOROWSKY, Defendant/Cross-Plaintiff-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

733 N.W.2d 71

273 Mich. App. 666

Joseph Francis BOROWSKY, Jr., Plaintiff/Cross-Defendant-Appellee/Cross-Appellant, v. Susan Heberton BOROWSKY, Defendant/Cross-Plaintiff-Appellant/Cross-Appellee.

Docket No. 262986.

Court of Appeals of Michigan.

Submitted January 19, 2007, at Detroit.

Decided January 23, 2007, at 9:00 a.m.

Released for Publication April 11, 2007.

Albuseiri & Boer, P.C. (by Mikhail Albuseiri), Grand Rapids, for the plaintiff.

Bregman & Welch (by Judy E. Bregman), Grand Haven, for the defendant.

Before: MURPHY, P.J., and SMOLENSKI and KIRSTEN FRANK KELLY, JJ.

SMOLENSKI, J.

Defendant appeals as of right a judgment of divorce. On appeal, defendant challenges the trial court's calculation of child support. On cross-appeal, plaintiff challenges the trial court's determination of parenting time, the trial court's refusal to award him attorney fees, and the trial court's calculation of child support. We conclude that the trial court improperly calculated defendant's income for purposes of determining child support. Therefore, we vacate the judgment's award of child support and remand for recalculation of the award consistent with this opinion. In all other respects, we affirm the judgment.

I. Facts and Procedural History

In January 2002, plaintiff sued defendant for separate maintenance¹ and defendant counterclaimed for divorce. Shortly thereafter, both parties filed motions for entry of a temporary order. At the time the present action commenced, plaintiff earned a salary of approximately $90,000 a year and defendant earned a salary of approximately $100,000 a year. In addition, both parties had significant assets, which they maintained separately pursuant to a postnuptial agreement signed in 1991. Because the parties' financial affairs were governed by the postnuptial agreement, the division of property was largely not at issue.² Instead, the primary issues concerned custody of the parties' three minor children and the payment of child support.

In May 2002, the trial court entered a temporary order granting defendant physical custody of the children, but giving the parties joint legal custody. The order also detailed plaintiff's parenting time and ordered plaintiff to pay $361 a week in child support. After the parties sold the marital home, the trial court reduced plaintiff's child support to $334 a week.

In December 2002, defendant's position with her employer was eliminated. As a result, defendant moved for modification of the amount of child support and other relief. In June 2003, the trial court entered an order increasing plaintiff's child support obligation to $1,672 a month.

In September 2003, plaintiff moved for a reduction in child support after his executive position was eliminated. In his motion, plaintiff explained that his severance benefits would expire in October 2003 and noted that defendant had obtained employment that would commence in October 2003. Plaintiff asked that his child support be reduced to $543 a month based on both plaintiff's and defendant's unemployment compensation. In October 2003, the trial court entered an order granting plaintiff's request. On December 10, 2003, the trial court further reduced plaintiff's child support payments to $523 a month commencing January 1, 2004, to reflect defendant's expected salary of $48,000.

On June 22, 2004, defendant moved for the retroactive modification of plaintiff's child support. Defendant argued that retroactive modification of the order was appropriate because plaintiff had failed to disclose substantial income received since his employment was terminated. Plaintiff responded by admitting that he had made approximately $86,000 in hardship withdrawals from his IRA during 2003. However, he countered that defendant had over $300,000 in unreported income during 2002 and 2003, which he argued should be included in any recalculation of child support.

On January 11, 2005, after a five-day bench trial,³ the trial court issued an opinion from the bench. The trial court first found that both parties had an established custodial environment with the children. The court then examined the best-interests factors and found that, although there was a slight preference for defendant on a few factors, the majority of them favored neither party. On the basis of this evidence, the trial court determined that a change in the custodial environment was not warranted. Therefore, the trial court awarded the parties joint physical and legal custody of the minor children.

The court then turned to the parenting-time schedule. The court noted that the current parenting-time schedule had been working well for the three years that the divorce had been pending. The court rejected the schedule recommended by the Friend of the Court (FOC) because it thought that, given the age of the children, it would be inappropriate to have the children regularly away from either parent for an extended period. The trial court also wanted to ensure that the children had a weekly routine and that both parents would be able to fully participate in parenting. Therefore, the trial court instituted a parenting-time schedule that gave plaintiff somewhat less time than the equal division recommended by the FOC, but comported with the trial court's other considerations.

The trial court next addressed the issue of child support. The court indicated that support was currently based on the $13,000 plaintiff had been earning while enrolled in school and on defendant's salary of $48,000. However, the trial court determined that the parties' income would have to be recalculated to reflect the additional sources discussed by the parties. Additionally, the trial court rejected defendant's request that the recalculated child support be applied retroactively to September 2003. Instead, the court determined that the recalculation should be retroactive to the date of defendant's motion to modify the child support order, which was June 22, 2004. However, because the court did not yet have the necessary financial information to apply the formula, the trial court left the final calculations for later.

Finally, the trial court found that neither party bore fault for the protracted nature of the litigation. Therefore, the trial court declined to award attorney fees to either party.

On May 6, 2005, the trial court held a hearing to resolve the disputes concerning the calculation of child support and to finalize the judgment of divorce. After the hearing, the trial court entered a judgment of divorce that incorporated its findings and orders from the bench on January 11, 2005. The judgment included an order for plaintiff to pay $1,922.57 a month in support under the sole-custody formula for the period spanning June 22, 2004, through January 15, 2005. Commencing January 15, 2005, the trial court ordered plaintiff to pay child support under the shared-economic-responsibility formula at the rate of $784.28 a month.

This appeal followed.

II. Child Support Order

We shall first address the parties' various claims of error with regard to the trial court's calculation of the child support obligation.

A. Standard of Review

Whether the trial court properly applied the Michigan Child Support Formula (MCSF) to the facts of the case is a question of law that this Court reviews de novo. Burba v. Burba (After Remand), 461 Mich. 637, 647, 610 N.W.2d 873 (2000). This Court also reviews de novo the proper interpretation of the MCSF and the applicable statutes. Atchison v. Atchison, 256 Mich.App. 531, 534-535, 664 N.W.2d 249 (2003). This issue also involves review of matters committed by the MCSF to the discretion of the trial court. Where the MCSF commits a matter to the discretion of the trial court, this Court will review the trial court's exercise of discretion for abuse. Burba, supra at 649, 610 N.W.2d 873 (holding that the trial court abused its discretion by deviating from the formula for a legally improper reason). An abuse of discretion occurs when a court selects an outcome that is not within the range of reasonable and principled outcomes. Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006). Finally, to the extent that the trial court made factual findings in determining the amount of support under the child support formula, those findings are reviewed for clear error. Beason v. Beason, 435 Mich. 791, 805, 460 N.W.2d 207 (1990).

B. The Calculation of Income under the Child Support Formula

It is well settled that children have the right to receive financial support from their parents and that trial courts may enforce that right by ordering parents to pay child support. MCL 722.3; Macomb Co. Dep't of Social Services v. Westerman, 250 Mich.App. 372, 377, 645 N.W.2d 710 (2002). However, once a trial court decides to order the payment of child support, the court must "order child support in an amount determined by application of the child support formula...." MCL 552.605(2); see also 2004 MCSF 1.04; Ghidotti v. Barber, 459 Mich. 189, 200, 586 N.W.2d 883 (1998). A trial court must strictly comply with the requirements of the MCSF in calculating the parents' support obligations unless it "determines from the facts of the case that application of the child support formula would be unjust or inappropriate ...." MCL 552.605(2); see also Peterson v. Peterson, 272 Mich.App. 511, 518, 727 N.W.2d 393 (2006) (stating that this Court must ensure compliance with the plain language of the MCSF and that courts are not free to read into the MCSF what is not there). If the trial court determines that deviation from the formula is warranted, it must set forth in writing or on the record (1) the amount of child support determined by application of the formula, (2) how the order deviates from the formula, (3) the value of property or other support awarded instead of the payment of child support, if applicable, and (4) the reasons why application of the formula would be unjust or...