Ghidotti v. Barber, Docket No. 187106

• Decision Date: 21 March 1997
• Docket Number: Docket No. 187106
• Citation: Ghidotti v. Barber, 564 N.W.2d 141, 222 Mich.App. 373 (Mich. App. 1997)
• Parties: James GHIDOTTI, Plaintiff-Appellee, v. Brenda BARBER, Defendant-Appellant (On Remand).
• Court: Court of Appeal of Michigan

Page 141

564 N.W.2d 141

222 Mich.App. 373

James GHIDOTTI, Plaintiff-Appellee, v. Brenda BARBER, Defendant-Appellant (On Remand).

Docket No. 187106.

Court of Appeals of Michigan.

Submitted Sept. 16, 1996, at Grand Rapids.

Decided March 21, 1997, at 9:05 a.m.

Released for Publication June 6, 1997.

[222 Mich.App. 374] Legal Services of Southcentral Michigan by Jeanne McGuire, Battle Creek, and Michigan Legal Services by Anne L. Argiroff, Detroit, for Brenda Barber.

Before GRIBBS, P.J., and MARKEY and T.G. KAVANAGH ^*, JJ.

ON REMAND

PER CURIAM.

This case arises from a May 16, 1994, order issued by the trial court that imputed income to defendant, the noncustodial parent, as a voluntarily unemployed person for purposes of computing child support. On the basis of the recommendations of the friend of the court, the trial court ordered defendant to pay $33 a week in child support even though she is unemployed and receives Aid to Families with Dependent Children (AFDC) benefits on behalf of her two minor daughters from a previous marriage who live with her. Defendant unsuccessfully sought leave to appeal from the order to this Court. In lieu of granting leave to appeal, however, our Supreme Court remanded the case to this Court for consideration as on leave granted. 449 Mich. 861, 535 N.W.2d 794 (1995). On remand, we affirm.

Plaintiff James Ghidotti and defendant are the parents of James Allen Ghidotti, Jr. (born November 30, 1987). The parties were never married. Plaintiff received custody of their son in 1993. Defendant has custody of her two minor daughters. Because her former husband is incarcerated, defendant receives no child support but instead receives AFDC benefits, which are means-tested federal benefits provided for the support of defendant's minor daughters.

The Calhoun County Friend of the Court's investigation revealed that defendant suffered from no condition or restriction that would preclude her from obtaining gainful employment. ¹ Accordingly, the friend of the court deemed defendant to be voluntarily unemployed and calculated an imputed income for defendant equaling $170 a week. In light of defendant's imputed income, the friend of the court recommended that defendant pay a total of $33 of child support a week to plaintiff, the custodial parent.

At the hearing regarding the friend of the court's motion, defendant argued that the county's policy of imputing income to noncustodial parents who are unemployed and receive only federal means-tested benefits is preempted by federal law precluding the alienation of these federal benefits. Defense counsel admitted, however, that defendant did not suffer from any medical condition that would preclude her from being employed. The trial court rejected defendant's argument, refusing to agree that even after excluding from consideration the AFDC benefits, the friend of the court should be precluded from imputing income to defendant consistent with the Michigan child support guidelines. Following Michigan precedent, the court ordered defendant to pay plaintiff $33 a week in child support.

On appeal, defendant argues that the trial court violated M.C.L. § 400.63; M.S.A. § 16.463, ² prohibiting the alienation of AFDC benefits, M.C.L. § 552.602(c); M.S.A. § 25.164(2)(c), ³ defining income for purposes of establishing child support, and the Michigan child support guidelines by imputing income and ordering defendant to pay child support where defendant's only source of income is AFDC. We find that defendant's arguments lack merit.

We review the trial court's factual findings for clear error, which is found to have occurred where an appellate court is left with a firm and definite conviction that a mistake was made. MCR 2.613(C); Beason v. Beason, 435 Mich. 791, 804-805, 460 N.W.2d 207 (1990). If the findings are supported, we review the court's dispositional ruling de novo. Edwards v. Edwards, 192 Mich.App. 559, 562, 481 N.W.2d 769 (1992). Generally, we will not reverse the court's decision to award child support absent an abuse of discretion. Morrison v. Richerson, 198 Mich.App. 202, 211, 497 N.W.2d 506 (1993); Edwards, supra at 562, 481 N.W.2d 769.

Defendant's assertion that the trial court is statutorily precluded from imputing income to an AFDC recipient is factually flawed because the court imputed wage income to her on the basis of her voluntary unemployment. It did not impute her AFDC grant to her as income, which is prohibited under the child support guidelines. In short, the court imputed income to her without considering the AFDC she received. It apparently viewed her as it should and does view all unemployed yet employable noncustodial parents who, for one reason or another, have no job and claim an inability to financially support a child. Case law supports the trial court's determination that a parent who voluntarily reduces income will have income assigned to the parent for purposes of supporting that parent's child. Olson v. Olson, 189 Mich.App. 620, 622, 473 N.W.2d 772 (1991), aff'd. 439 Mich. 986, 482 N.W.2d 711 (1992) (approving income imputation in light of a parent's voluntary reduction of income); Rohloff v. Rohloff, 161 Mich.App. 766, 769-776, 411 N.W.2d 484 (1987) (analyzing and affirming earlier cases addressing income imputation). Also, the Michigan Child Support Formula Manual (1996 rev.) endorses the practice of imputing income, i.e., "treating a party as having income or resources that the party does not actually have. This usually occurs in cases where a party voluntarily reduces income." Id., p. 8.

When evaluating whether a party has an unexercised ability to earn, the friend of the court must consider equitable factors such as the party's prior employment, education, skills, disabilities, ability to earn the wages imputed, the prevailing wage rate in the area, and the effect that minor children residing with the party may have on that party's earning ability. Id. The manual also provides that imputation is not appropriate where "[a] payee/payer source of income is a means tested income such as Aid for Families with Dependent Children, General Assistance, Food Stamps and Supplemental Security Income." Id. p. 9. This is consistent with the child support guidelines' statement that means-tested sources of income "should not be considered as income to either parent for the purpose of determining child support." Id., p. 7.

The manual contains no substantive right liberating a noncustodial parent who receives AFDC from all child support obligations. If this were the case, we would find statutory authorization for this exclusion, but none exists. Rather, we recognize that the manual restates the rule contained in M.C.L. § 552.602(c); M.S.A. § 25.164(2)(c) that AFDC is not income, the rule set forth in Proudfit v. O'Neal, 193 Mich.App. 608, 610-611, 484 N.W.2d 746 (1992), that AFDC is not to be treated as if it were income, and the rule in M.C.L. § 400.63(1); M.S.A. § 16.463(1) that AFDC benefits cannot be alienated. If the manual excluded parents receiving AFDC from paying child support, it would conflict with M.C.L. § 722.712(a); M.S.A. § 25.492(a) of the Paternity Act, which requires parents to support their children, M.C.L. § 552.519(3)(a)(vi); M.S.A. § 25.176(19)(3)(a)(vi) of the Friend of the Court Act, which authorizes the manual's promulgation for use in determining the amount of child support that noncustodial parents must pay, and M.C.L. § 722.717(3); M.S.A. § 25.497(3) of the Paternity Act, which requires the court to follow the manual's determination regarding the child support amount awarded unless doing so would be unjust or inappropriate. Defendant's proposed interpretation of these statutes and the manual precludes an harmonious interpretation of in pari materia statutes, Jennings v. Southwood, 446 Mich. 125, 136-137, 521 N.W.2d 230 (1994), and results in repugnancy, absurdity, or unreasonableness, Michigan Humane Society v. Natural Resources Comm., 158 Mich.App. 393, 401, 404 N.W.2d 757 (1987). It also conflicts with decisions of this Court endorsing the imputation of income for voluntarily unemployed noncustodial parents. See Olson, supra at 621-622, 473 N.W.2d 772; Rohloff, supra. Indeed, defendant's constrained reading of these statutes, cases, and the manual cannot control because it does not yield a construction that avoids conflict. See House Speaker v. State Administrative Bd., 441 Mich. 547, 568-569, 495 N.W.2d 539 (1993). Thus, the fact that a party receives an AFDC grant is irrelevant when determining whether a parent is voluntarily unemployed and the amount of child support that a voluntarily unemployed noncustodial parent will pay for the benefit of the noncustodial child.

Additionally, although at first glance the language of M.C.L. § 400.63; M.S.A. § 16.463 and M.C.L. § 552.602(c); M.S.A. § 25.164(2)(c) may appear to protect defendant from child support obligations because her only income is AFDC, neither statute prohibits imputing wage income to a voluntarily unemployed parent who receives AFDC as long as that parent is not required to satisfy the child support order from the AFDC grant. Defendant's argument presumes, incorrectly so, that AFDC is her sole means of paying the child support, which would constitute an illegal alienation of those benefits. Instead, we believe that both the trial court and the friend of the court understand that neither could require defendant to pay the weekly child support from the AFDC benefits. We also find implicit in the court's holding the conclusion that as long as defendant has no source of income outside the AFDC benefits with which to pay the child support, defendant's unpaid weekly child support will accumulate in arrears. Thus, the child support order does not improperly alienate her AFDC benefits. When defendant eventually obtains employment and earns income, she will then be required to make support payments to plaintiff and pay the arrearages....