Cochran v. Buffone, Docket No. 72273

• Decision Date: 06 December 1984
• Docket Number: Docket No. 72273
• Citation: 359 N.W.2d 557,137 Mich.App. 761
• Parties: Kristine A. COCHRAN, Plaintiff-Appellant, v. John F. BUFFONE, Defendant-Appellee. 137 Mich.App. 761, 359 N.W.2d 557
• Court: Court of Appeal of Michigan — District of US

Page 557

359 N.W.2d 557

Kristine A. COCHRAN, Plaintiff-Appellant, v. John F. BUFFONE, Defendant-Appellee.

Docket No. 72273.

137 Mich.App. 761, 359 N.W.2d 557

Court of Appeals of Michigan.

Submitted June 20, 1984.

Decided Oct. 1, 1984.

Released for Publication Dec. 6, 1984.

[137 MICHAPP 763] Cooke & Stevens by Kim Daniel Cooke, Bloomfield Hills, for plaintiff-appellant.

Hudnut & Ravitz, P.C. by Lee G. Ravitz, Southfield, for defendant-appellee.

Before MacKENZIE, P.J., and BEASLEY and KIRWAN ^*, JJ.

[137 MICHAPP 764] KIRWAN, Judge.

Plaintiff appeals as of right from the trial court's order denying an increase in child support as requested in plaintiff's motion for a rehearing of her motion for modification of the judgment of divorce.

Plaintiff wife and defendant husband were divorced on August 1, 1978. Plaintiff was awarded custody of the parties' seven-year-old child and defendant was ordered to pay $20 per week in support of that child. On June 17, 1981, plaintiff petitioned the trial court for an increase in child support on the basis of a change of circumstances. Plaintiff claimed that she was no longer employed, that the defendant's earnings had greatly increased and that the costs of fulfilling the child's needs were greater than at the time of the divorce. After the matter had been referred to the Friend of the Court, plaintiff on February 4, 1982, filed interrogatories requesting defendant to furnish information relative to his current earnings. As defendant did not respond, plaintiff on March 4, 1982, was required to file a motion to compel defendant to answer those interrogatories. Defendant then responded that his income before taxes was in the vicinity of $23,000 per year. The Friend of the Court thereupon recommended that child support be increased to $35 per week. Plaintiff objected, requesting that support be set at $63 per week and that it be made retroactive to the date of plaintiff's petition. Defendant's attorney admitted that defendant's income had increased 60% since 1978, but argued that the recommendation of the Friend of the Court was fair and reasonable.

Following arguments, the trial court entered an order setting child support at $35 per week, but did not make its order retroactive. Plaintiff thereupon filed a motion for rehearing which was heard [137 MICHAPP 765] on August 4, 1982. At the rehearing, counsel for plaintiff denied that plaintiff had agreed at the time of the divorce, as claimed by defendant, to a lower amount of child support in exchange for a greater share of the marital assets. The trial court then ordered the matter referred to the Friend of the Court for an evidentiary hearing. After the hearing, the record of which was apparently never transcribed, the court ordered that child support remain at $35 per week, which was in accord with the recommendation of the Friend of the Court. Plaintiff's attorney then requested an evidentiary hearing before the court. This request was denied, the court finding that there was no reason to change its original decision.

I

Plaintiff first claims that the trial court should have held an evidentiary hearing before deciding the amount of the child support increase and that it was an abuse of discretion to rely solely on the Friend of the Court's recommendation. Plaintiff further argues that there existed no agreement for lower child support at the time of the divorce and that, even if there had been such an agreement, it is unenforceable for the reason that parents cannot bargain away a child's right to adequate support.

Defendant claims that the trial court was not required to hold an evidentiary hearing because there were no relevant facts in dispute. Defendant claims that he admitted that his income had increased substantially since 1978 and that plaintiff admitted that she was voluntarily unemployed. Defendant further argues that the reason the parties agreed to a low child support amount in 1978 is irrelevant: for whatever reasons, the parties [137 MICHAPP 766] agreed. Defendant also claims that the trial court did not base its decision solely on the Friend of the Court's recommendation, but that, by deciding to increase defendant's child support payments by only $15 per week, the trial court independently recognized that it would be unfair to order an increase of more than 75% of what was agreed upon in 1978.

It is within the discretion of a trial court to order an increase or decrease in child support any time after the petition for modification has been filed. Farr v. Farr, 63 Mich.App. 741, 235 N.W.2d 31 (1975). This Court has also ruled that a trial court is obliged to hold an evidentiary hearing if there exist factual disputes concerning a change of circumstances relating to a petition for a modification of child support payments. Dresser v. Dresser, 130 Mich.App. 130, 342 N.W.2d 545 (1983).

In this instance, the trial court accepted the Friend of the Court's recommendation even though it was obvious that both parties had not consented to the recommendation. Whether or not his decision was based upon the Friend of the Court recommendation or upon the fact that plaintiff had agreed to lower child support in exchange for a greater property settlement at the...