Clarke v. Clarke

• Court: Court of Appeal of Michigan
• Writing for the Court: MURRAY
• Citation: Clarke v. Clarke, 297 Mich.App. 172, 823 N.W.2d 318 (Mich. App. 2012)
• Decision Date: 26 June 2012
• Docket Number: Docket No. 303580.
• Parties: CLARKE v. CLARKE.

297 Mich.App. 172

823 N.W.2d 318

CLARKE

v.CLARKE.

Docket No. 303580.

Court of Appeals of Michigan.

Submitted April 4, 2012, at Detroit.

Decided June 26, 2012, at 9:10 a.m.

Laurie S. Longo, Ann Arbor, for Edwin R. Clarke, III.

Cynthia A. Clarke in propria persona.

Before: MARKEY, P.J., and MURRAY and SHAPIRO, JJ.

MURRAY, J.

Plaintiff, Edwin R. Clarke, III, appeals by leave granted a child support order imputing income to him and awarding child support to defendant, Cynthia A. Clarke. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Plaintiff and defendant married in 1992 and had one son, Edwin R. Clarke, IV, who was born in 1994. A consent judgment of divorce, which adopted the terms of the parties' settlement agreement, was entered on June 28, 2007. According to the judgment, plaintiff and defendant were to share joint physical and legal custody of Edwin. No child support was awarded to either parent, but the judgment stated that child support may be awarded in the future if

(a) [there is] a substantial court-ordered departure from equal parenting time or (b) a catastrophic change in income, where “catastrophic change in income” means that a party becomes physically or mentally disabled and is, therefore, unable to work, or a party is unemployed and is unable to find comparable employment following 120 days of his or her best efforts to do so. If child support becomes payable due to a loss of employment, the Court will have the discretion to make child support retroactive from the date of the petition for child support to the date that there was a change of income due to loss of employment.

Plaintiff lost his job on October 15, 2007, and on April 14, 2008, he moved for a change of physical custody and for the payment of child support. The trial court denied plaintiff's motion for a change in physical custody. But the trial court also found a catastrophic change in income and ordered defendant to pay plaintiff $485 a month in child support. Defendant disputed the child support award, and it was ultimately modified to $300 a month in November 2008.

In January 2010, plaintiff and Edwin had a disagreement. Afterwards, plaintiff asked defendant if Edwin could return to her home earlier than provided for in the parenting-time schedule. Defendant agreed and Edwin has been exclusively residing with defendant ever since. On June 15, 2010, defendant, in propria persona, petitioned for a change in child support. Defendant requested that the child support payment to plaintiff cease and that plaintiff be required to pay defendant child support.

Also during 2010, plaintiff, who was 64 years old, looked into the possibility of receiving social security retirement benefits. According to plaintiff's calculations, if he began receiving social security retirement benefits in 2010, he would have been entitled to $1,968 a month; however, if he waited until November 2012, when he turns 66 years old, he would be entitled to $2,347 a month. Plaintiff also became aware that if he began receiving retirement benefits in 2010, Edwin would be entitled to receive dependent benefits of $1,173 each month until either his eighteenth birthday or his graduation from high school. Upon learning about this dependent benefit, plaintiff contacted defendant through a series of e-mails. In the e-mails, plaintiff attempted to negotiate an agreement with defendant to share in Edwin's dependent benefit. Specifically, plaintiff wanted defendant to confirm him as the representative recipient of Edwin's benefits and to agree to an allocation of benefits between the two households. Initially, plaintiff suggested defendant receive $200 a month from Edwin's entitlement, but later increased his offer to $400, and then to half, or $586.50.

In July 2010, plaintiff applied for and began receiving social security retirement benefits. Despite plaintiff's belief that the Social Security Administration (SSA) would hold the dependent benefit payment until he and defendant had reached an agreement, defendant began receiving Edwin's dependent benefit in July 2010. Social security benefits were received by plaintiff and Edwin from July 2010 through September 2010. When plaintiff discovered in September 2010 that Edwin's dependent benefit was being paid to defendant, he withdrew his social security application and repaid to the SSA all the monies received by himself and Edwin.

Subsequently, in December 2010, the friend of the court issued a child support recommendation that defendant's obligation to pay child support to plaintiff be terminated and that plaintiff's eligibility for social security retirement benefits be imputed as income in calculating child support. By imputing the social security retirement benefit to plaintiff, the friend of the court recommended that plaintiff pay defendant $593.50 a month in child support. Plaintiff objected to the friend of the court recommendation, arguing that only distributed income from the SSA could be used in the calculation of income. Defendant urged the trial court to follow the friend of the court recommendation by imputing the retirement benefits as income to plaintiff.

Based on the parties' written submissions, the trial court determined that it had the authority to impute plaintiff's social security benefits as income because it was income that he had the ability to earn but had voluntarily eliminated. The court ordered plaintiff to pay $578 a month in child support and discontinued defendant's child support obligation, with the child support adjustment effective retroactively to June 15, 2010. The order also granted defendant the federal dependency tax exemption for the 2010 tax year because Edwin had not spent a single night with plaintiff since their argument in January 2010.

After the trial court denied plaintiff's motion for reconsideration, plaintiff filed an application for leave to appeal, which we subsequently granted. Clarke v. Clarke, unpublished order of the Court of Appeals, entered June 17, 2011 (Docket No. 303580).

II. ANALYSIS

A. IMPUTATION OF UNDISTRIBUTED SOCIAL SECURITY RETIREMENT BENEFITS

Plaintiff argues that under § 2.01(C)(3) of the Michigan Child Support Formula (MCSF) only distributed social security retirement benefits may be considered as income. Generally, child support orders, including orders modifying child support, are reviewed for an abuse of discretion. Malone v. Malone, 279 Mich.App. 280, 284, 761 N.W.2d 102 (2008). However, whether the trial court properly applied the MCSF presents a question of law that we review de novo. Stallworth v. Stallworth, 275 Mich.App. 282, 284, 738 N.W.2d 264 (2007). On the other hand, factual findings underlying the trial court's decisions are reviewed for clear error. Borowsky v. Borowsky, 273 Mich.App. 666, 672, 733 N.W.2d 71 (2007).

MCL 552.519(3)(a)( vi ) grants the State Court Administrative Office Friend of the Court Bureau the authority to develop a formula for establishing and modifying child support obligations. A trial court must use the formula established by the Friend of the Court Bureau when determining child support, and may deviate from the formula only if the formula would be unjust or inappropriate based on the facts of the case. The trial court must set forth in writing or on the record the reasons for the deviation. MCL 552.605(2); Paulson v. Paulson, 254 Mich.App. 568, 572, 657 N.W.2d 559 (2002). Just as with a statute, courts must comply with the plain language of the MCSF, and may not read language into the MCSF that is not present. Peterson v. Peterson, 272 Mich.App. 511, 518, 727 N.W.2d 393 (2006).

Under the MCSF, the stated objective for determining a parent's income is to “establish, as accurately as possible, how much money a parent should have available for support.” 2008 MCSF 2.01(B). With respect to imputation of income, one of the primary goals of the MCSF is to ensure that “[t]he amount of potential income imputed should be sufficient to bring that parent's income up to the level it would have been if the parent had not voluntarily reduced or waived income.” 2008 MCSF 2.01(G)(1). Income is defined to include many items, but relevant to social security benefits, it is defined as:

Distributed profits or payments from profit-sharing, a pension or retirement, an insurance contract, an annuity, trust fund, deferred compensation, retirement account, social security, unemployment compensation, supplemental unemployment benefits, disability insurance or benefits, or worker's compensation. [2008 MCSF 2.01(C)(3) (emphasis added).]

Plaintiff argues that his social security retirement benefits may not be included as income unless he actually receives payments from the SSA. That much is true. Black's Law Dictionary (9th ed.) defines “payment” as the “[p]erformance of an obligation by the delivery of money....” Hence, based on the plain meaning of “payment,” it is clear that only the retirement benefits that are actually paid from the SSA and delivered to the recipient may be considered part of a parent's income for purposes of calculating child support under the MCSF. Here, plaintiff was not receiving social security payments from the SSA at the time the trial court decided the motion. The evidence instead shows that plaintiff chose not to continue to receive his social security retirement benefits either because he determined that the dependent benefits were not coming to him, or because he re-determined the economic value of receiving the benefits early. Either way, plaintiff was not receiving payments from the SSA, and therefore these yet-to-be-paid benefits cannot be deemed income under § 2.01(C).

That only paid social security retirement benefits may be considered income does not, however, address the dispositive issue, which is whether plaintiff's social security retirement benefits are potential income that may be imputed to him. According to the MCSF, under the following...