Dunn v. Dunn, Docket No. 49685

• Decision Date: 23 April 1981
• Docket Number: Docket No. 49685
• Citation: 105 Mich.App. 793,307 N.W.2d 424
• Parties: David DUNN, Plaintiff-Appellant, v. Sue Ellen DUNN (now Barber), Defendant-Appellee. 105 Mich.App. 793, 307 N.W.2d 424
• Court: Court of Appeal of Michigan — District of US

Page 424

307 N.W.2d 424

David DUNN, Plaintiff-Appellant, v. Sue Ellen DUNN (now Barber), Defendant-Appellee.

Docket No. 49685.

105 Mich.App. 793, 307 N.W.2d 424

Court of Appeals of Michigan.

April 23, 1981.

Released for Publication July 13, 1981.

[105 MICHAPP 795] Quinn E. Benson, Kalamazoo, for plaintiff-appellant.

Sue Ellen (Barber) Dunn, pro. per.

Before R. B. BURNS, P. J., and MAHER and KALLMAN, ^* JJ.

PER CURIAM.

Plaintiff appeals by right the order of the trial court modifying a previous divorce judgment and providing in part that he pay a total of $27 per week for the support of his two minor children.

Plaintiff and defendant were married in 1965 while plaintiff was attending a seminary in preparation for ordination in the United Methodist Church. During their marriage, one child was born to the parties, and they adopted another. During the summers of 1968, 1969, and 1971, the parties were involved with the Ecumenical Institute and a related religious order, the Order Ecumenical. It was during this period that plaintiff became interested in pursuing his ministry through full-time involvement with the Order. After leaving the seminary, plaintiff was assigned to a church in Comstock, Michigan, and was ordained a minister in the United Methodist Church.

In May of 1974, the parties were divorced. Plaintiff was granted custody of the two minor children and no support order was entered against defendant. In September of 1974, plaintiff joined the [105 MICHAPP 796] Order Ecumenical. He is currently assigned to the Order by the bishop of the West Michigan Conference of the United Methodist Church. Pursuant to his work with the Order, plaintiff was assigned to various places in the United States. The parties' two children accompanied him on these assignments until 1977 when plaintiff voluntarily relinquished custody of the parties' oldest child to defendant. Plaintiff has recently relinquished custody of the youngest child as well, as a result of his pending assignment to Calcutta, India.

At the hearing, the parties testified as to their relative financial positions. As a member of the Order Ecumenical, plaintiff has taken vows of poverty and obedience. Members of the Order are given a place to live and a food allowance for their families, and are paid a stipend roughly commensurate with the poverty level of the nation to which they are assigned. Plaintiff testified that while assigned to various locations in the United States with his two children this stipend amounted to approximately $84 per month. He further testified that when he took up his assignment in India the stipend would be closer to $12 per month. Assignments are made by the superiors of the Order, and plaintiff testified that members are sometimes assigned to take secular employment. When so employed, members of the Order continue to receive only their stipend, and all remaining net income is turned over to the Order. Plaintiff testified that he had been assigned to such jobs by the Order and that he had earned as much as $14,000 per year through such jobs. All of the net income plaintiff earned in these jobs was turned over to the Order. The Order provides medical, dental, and optical insurance for the families of its members, and plaintiff agreed to continue to carry such coverage [105 MICHAPP 797] for his children. Defendant is employed by radio station WJR as a producer, and at the time of the hearing earned a monthly take-home pay of $916. Defendant also testified that she had recently purchased a home in Grosse Pointe Woods, Michigan, for $38,900.

At the close of the hearing, the trial court held that plaintiff's actions constituted a willful disregard for the interest of his children and ordered, inter alia, that he pay $27 per week in child support until the oldest child reached the age of 18 and $19 per week thereafter until the youngest child reached the age of 18.

On appeal, plaintiff claims that the trial court erred in determining the amount of child support ordered. Although our review of child support matters is traditionally de novo, we do not exercise that review in a vacuum. Much discretion is vested in the trial court, and the exercise of that discretion generally is presumed to be correct. Hakken v. Hakken, 100 Mich.App. 460, 464, 298 N.W.2d 907 (1980), Causley v. LaFreniere, 78 Mich.App. 250, 254-255 fn. 2, 259 N.W.2d 445 (1977). The party appealing from the child support order bears the burden of showing a clear abuse of discretion. Hakken, supra. Because of the historically equitable nature of child support proceedings, however, such an abuse may be established more readily than in cases historically heard at law, and we will reverse or modify the award if convinced that we would have reached a different result if in the position of the trial court. Hakken, supra, Vaclav v. Vaclav, 96 Mich.App 584, 589, 293 N.W.2d 613 (1980), Causley, supra.

With these principles in mind, we note first that one of the factors to be considered in determining the amount of child support is the parent's ability [105 MICHAPP 798] to pay. The court is not, however, limited to consideration of the parent's actual income and may also look to the parent's unexercised ability to earn. Vaclav, supra, 588, 293 N.W.2d 613, Heilman v. Heilman, 95 Mich.App. 728, 733, 291 N.W.2d 183 (1980), lv. den. 409 Mich. 893 (1980), Travis v. Travis, 19 Mich.App. 128, 130, 172 N.W.2d 491 (1969). The trial court's award of child support in the instant case was based largely on the fact that plaintiff had demonstrated in the past an ability to earn much more than the amount of his stipend from the Order.

Recent decisions concerning modification of existing child support orders make it clear, however, that there are factors which limit a court's reliance on a parent's unexercised ability to earn. In Moncada v. Moncada, 81 Mich.App. 26, 31, 264 N.W.2d 104 (1978), this Court held that "absent bad faith or willful disregard for the interests of the dependent children, a voluntary reduction of income is not an adequate reason for refusing modification of a support order". See Hakken, supra, 464, 298 N.W.2d 907, Rutledge v. Rutledge, 96 Mich.App. 621, 625, 293 N.W.2d 651 (1980). ¹ If a voluntary reduction in income made in good faith and without an intent to jeopardize the welfare of dependent children can justify a reduction in child support payments despite necessarily strong proof of unexercised ability to earn, the same rule should apply to cases such as that now before us where the issue of child support is being considered for the first time. Accordingly, absent bad faith or willful disregard [105 MICHAPP 799] for the interests of the dependent children, the fact that a parent is voluntarily earning less than is possible is not an adequate reason for ordering child support at a rate much higher than the parent's actual income would dictate.

In the instant case, the record clearly establishes plaintiff's good faith and the lack of willful disregard for the interests of his children. Plaintiff's interest in and association with the Order Ecumenical began long before his divorce from defendant and there is no hint in the record before us that plaintiff became involved in the Order merely to avoid his obligations to his children. The Order makes provisions for the care of the children of its members, and it is undisputed that plaintiff and the Order adequately provided for his children while he retained custody. Plaintiff has voluntarily agreed to continue medical, dental, and optical insurance coverage on his children through the Order and has agreed to pay child support commensurate with his actual income. Keeping in mind the appropriate standards of review discussed earlier, we believe that the trial court has committed a clear abuse of discretion. Child support should be ordered on the basis of plaintiff's actual income, and this cause is accordingly remanded for a redetermination of the child support award. While plaintiff's actual income is made up of both his stipend and the reasonable value of the room and board which he receives, the award should reflect plaintiff's ability to pay.

Given our disposition of this case, there is no need to address the other issues raised by plaintiff on appeal.

Reversed and remanded.

KALLMAN, Judge, concurring.

While at first [105 MICHAPP 800] blush this would appear to be simply a matter of whether or not a father should pay child support, it is not. Because of the most unusual facts, this case is in reality a First Amendment issue. The issue is simply: May this Court order a man to get a job and pay child support which will force him to leave his religious order and renounce his religious vows? The lower court said yes; I disagree. I would reverse the lower court and order the case remanded to the trial court to determine the amount of child support.

The plaintiff and the defendant were married in 1965 while plaintiff was in a seminary. Both were involved with the Order Ecumenical during the summers of 1968, 1969, and 1971. Plaintiff served as pastor of a church in 1970 and was ordained an elder in 1972. In 1973, he was pastor of the Comstock Methodist Church. The parties were divorced on May 28, 1974, one of the reasons being plaintiff's decision to join the Order Ecumenical. No support order was entered against either party. The plaintiff joined the Ecumenical Institute, or Order Ecumenical, in September, 1974, as an intern. Plaintiff was awarded custody of both minor children in the original judgment of divorce.

Subsequent to the divorce, plaintiff, after being assigned to the Order Ecumenical, lived with the children in Chicago, Illinois; Dallas, Texas; and Phoenix, Arizona. During this period, both children lived with the father without receiving any support from the mother. While living in Phoenix in 1977, the plaintiff voluntarily allowed his son to move to Detroit to live with his mother. Thus,...