Burba v. Burba

• Decision Date: 18 April 2000
• Docket Number: Docket No. 112311, Calendar No. 7.
• Citation: Burba v. Burba, 610 N.W.2d 873, 461 Mich. 637 (Mich. 2000)
• Parties: Joseph C. BURBA, Plaintiff-Appellant, v. Myriam C. BURBA, also known as Myriam C. Maas, Defendant-Appellee.
• Court: Michigan Supreme Court

610 N.W.2d 873

461 Mich. 637

Joseph C. BURBA, Plaintiff-Appellant, v. Myriam C. BURBA, also known as Myriam C. Maas, Defendant-Appellee.

Docket No. 112311, Calendar No. 7.

Supreme Court of Michigan.

Argued November 9, 1999.

Decided April 18, 2000.

Judith A. Curtis, Grosse Pointe Park, for the plaintiff-appellant.

Gary A. Kozma, Detroit, for the defendant-appellee.

David K. Hanson, Ann Arbor, amicus curiae for Washtenaw County Friend of the Court.

AFTER REMAND

Opinion

MICHAEL F. CAVANAGH, J.

This case requires us to determine the scope of a trial court's duty under M.C.L. § 552.17; MSA 25.97 when it deviates from the support levels established by the Michigan Child Support Formula. We hold that in this case, the trial court did not adequately fulfill its duties. Thus, we reverse and remand for further proceedings.

I

Plaintiff Joseph and defendant Myriam Burba were married in 1976. Their union produced two daughters, but, after separating in 1986, the Burbas consented to a divorce judgment in 1989. The consent judgment awarded defendant alimony of $900 a month for thirty months. It also provided that the parents would have joint legal and physical custody of their minor children, with the children spending equal time with each parent. In conjunction with the custody provisions, a modified abatement procedure was ordered, reducing the abatement period from eight to five days.¹ Finally, the consent judgment ordered plaintiff to pay $500 a month in child support during the children's minority.

In February 1995, defendant filed a petition pro se to change the child support order. An administrative referee found that defendant earned $16,000 a year, and that plaintiff earned approximately $103,000 a year. On the basis of these figures, and after making appropriate adjustments for plaintiff's second family, the referee recommended that plaintiff be ordered to pay $1,278 a month in child support. This recommendation resulted from the referee's application of the formula's sole custody calculation, rather than the formula's joint legal and physical custody calculation. The latter, also called the shared economic responsibility formula, was applicable because the parties shared joint physical and legal custody of the children. Thus, plaintiff objected to the referee's recommendation.

Because of this objection, the recommendation went to a hearing before the Washtenaw Circuit Court. At this hearing, defendant remained unrepresented, but a friend of the court (FOC) attorney argued in favor of the court adopting the recommendation. This attorney acknowledged that the referee failed to follow the shared economic responsibility formula, but she suggested that he did so because of the "huge disparity in income between these parties...."² Plaintiff argued that income disparity should not be a consideration for deviating from the formula, but, despite plaintiff's efforts, the court invoked its powers of equity to deviate from the formula. The trial court stated:

Well, I often use the shared formula, but—when it's appropriate. But I do think that—As I said, the reason the Court sits as a court in equity is to take into account the peculiar circumstances. The circumstances of this judgment are that the parties have provided for a modified abatement procedure. The parties originally did provide for the $500 support level at a time when there was alimony. And finally, I also do consider as an equitable factor the tremendous disparity in income.

I don't believe that applying or not applying the shared-economic-responsibility formula is necessarily an all-ornothing proposition, however.

I'm going to adopt the Friend of the Court recommendation in part. I am going to modify the amount of child support and set child support at the amount of $900 per month. I'll sign an order to that effect.

Plaintiff appealed this ruling, but the Court of Appeals denied leave. This Court remanded the case to the Court of Appeals as on leave granted. 454 Mich. 851, 558 N.W.2d 724 (1997). The Court of Appeals affirmed the trial court's award of $900 a month in child support, stating that after its review of the record, it believed the trial court complied with the statute and set forth sufficient reasons to deviate on the record. Unpublished opinion per curiam, issued May 8, 1998 (Docket No. 200591).

II

Historically, Michigan courts were given little guidance in ordering child support. For example, formerly, when a divorce order was entered, a court was only advised that it was authorized to "make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties...."³ In 1982, however, the Legislature passed the Michigan Friend of the Court Act, 1982 PA 294, which required the State Court Administrative Office's Friend of the Court Bureau to develop "[a] formula to be used in establishing and modifying a child support amount...." MCL 552.519(3)(a)(vi); MSA 25.176(19)(3)(a)(vi).

Work began on the formula in 1983, and the FOC adopted the guidelines in 1987. Michigan Child Support Formula Manual (West, 1999), p. v. By the Legislature's command, the formula had to be based on the needs of the child and the actual resources of each parent (subsection 19[3]). As drafted, the formula is based on factors including parental income, family size, and the children's ages. Manual, p. vi. In 1989, the Legislature began requiring courts to follow the formula when setting child support levels. MCL 552.16(2); MSA 25.96(2).⁴

Once child support is set under the formula, though, it is not cast in stone, because courts can modify the initial order. A court's ability to modify its initial child support order experienced an evolution similar to its ability to initially set the order, with courts formerly told that they could alter support orders "as the circumstances of the parents, and the benefit of the children shall require."⁵ After the formula became mandatory, however, courts must follow § 17 when modifying child support orders. Ghidotti v. Barber, 459 Mich. 189, 200, 586 N.W.2d 883 (1998). In pertinent part, § 17 provides:

(2) Except as otherwise provided in this section, the court shall order support in an amount determined by application of the child support formula developed by the state friend of the court bureau. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:

(a) The support amount determined by application of the child support formula.

(b) How the support order deviates from the child support formula.

(c) The value of property or other support awarded in lieu of the payment of child support, if applicable.

(d) The reasons why application of the child support formula would be unjust or inappropriate in the case.

III

A

As this Court held in Ghidotti, supra, the criteria for deviating from the formula are mandatory. Generally, the Legislature has prescribed that courts shall follow the formula, but it also allows deviation in appropriate circumstances following a specific procedure, as set forth in § 17. The importance the Legislature attached to courts carefully articulating these factors when deviating from the formula cannot be underestimated, for the Legislature prescribed their use when courts deviate from the formula in no less than eight different sections of the Michigan Compiled Laws. See M.C.L. § 552.15; MSA 25.95 (allowing order of support during pendency of divorce proceedings); MCL 552.16; MSA 25.96 (allowing order of support pursuant to divorce); MCL 552.17; MSA 25.97 (allowing postjudgment alteration of support); MCL 552.452; MSA 25.222(2) (allowing order of support upon custodial parent's complaint); MCL 722.3; MSA 25.244(3) (allowing support order upon prosecuting attorney's petition); MCL 722.27; MSA 25.312(7) (allowing order of support in varying scenarios); MCL 722.717; MSA 25.497 (allowing order of filiation and support); MCL 780.164; MSA 25.225(14) (allowing order of support when proceedings began in foreign jurisdiction).

B

After reviewing the record, we conclude that the trial court did not adequately fulfill its statutory duty to memorialize and explain its holding.⁶

The trial court, when it deviates from the formula, must first state the level of child support it would have ordered had it followed the formula (§ 17). In this case, the trial court never, in writing or on the record, stated the level of support it would have ordered had it followed the formula. At the hearing before the Washtenaw Circuit Court, the FOC attorney mentioned that under the shared economic responsibility formula, the child support would have been $470.16 a month. The court, however, made no such articulation.

In light of the Legislature's repeated requirement that the court articulate these factors when deviating from the formula, we hold that the FOC attorney's mention of the formula amount does not satisfy the statute. Courts presumptively must follow the formula, Ghidotti, supra at 200, 586 N.W.2d 883. To impress upon the courts the gravity of deviating from the formula, the Legislature has required them to meticulously set forth these factors when deviating. Anything less fails to fulfill the statutory procedure.

Next, the trial court did state on the record the amount of the order it was entering, but, because it did not state the formula amount, that statement did not provide an explanation of how the order deviated from the formula. Thus, subsection 17(2)(b) was similarly unfulfilled.

Finally,⁷ though it referred to them as "circumstances of this judgment" of divorce, the court did attempt to articulate reasons application of the formula was unjust or inappropriate. It stated that the modified abatement procedure, the initial award of alimony, and the...