Goetsch v. Goetsch, Docket No. 3169

• Decision Date: 28 March 1968
• Docket Number: Docket No. 3169,No. 3,3
• Citation: 10 Mich.App. 440,159 N.W.2d 748
• Parties: Norma GOETSCH, Plaintiff-Appellee, v. John GOETSCH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 748

159 N.W.2d 748

10 Mich.App. 440

Norma GOETSCH, Plaintiff-Appellee, v. John GOETSCH, Defendant-Appellant.

Docket No. 3169.

Court of Appeals of Michigan, Division No. 3.

March 28, 1968.

Released for Publication July 3, 1968.

Harvey L. Scholten, Scholten & Fant, Grand Haven, for appellant.

Charles F. Schuler, Jr., Muskegon, for appellee.

Before FITZGERALD, P.J., and BURNS and NEAL FITZGERALD, ^* JJ.

FITZGERALD, Presiding Judge.

This controversy arises from a divorce case wherein defendant husband was ordered to pay a total of $65 a week for the support of his 2 youngest sons, both minors. He appeals that order to this Court requesting a reduction in the amount of support to $40 per week based on the following facts:

Defendant was employed at a job which provided him a net pay of $94.10 a week for 40 hours work at a block-long paper making machine. However, he also worked long overtime hours, resulting in a net wage of $11,733.42 in 1965, and $10,192 through October of 1966.

At the trial, defendant testified that he began suffering a decline in his general health in October of 1966 by reason of a heart condition and arthritis of the spine, and that as a result he was hospitalized and was off work at the time of the trial at the insistence of his doctors. However, the trial court raised the $40 a week paid by defendant as temporary support to $65, with defendant taking this appeal.

Certain items in the proposed budget of the plaintiff wife submitted on the trial deserve careful examination on the issue of the proper amount of support. She showed expenditures of $355 a month (approximately $80 a week), which included the payments (if any) due on the house, the telephone bill, automobile expenses and plaintiff's lunch bills. Plaintiff is employed and earns $70 a week. Defendant alleges that one-half of this amount should be borne by plaintiff and an adult son, who lives at home, as for their benefit, and that the actual support needs of the children should thus be reduced by $100, to $255 a month (or approximately $56 a week).

This Court will not attempt to substitute its judgment for that of the trial court in divorce cases where we can find no clear abuse of the wide discretion granted to the trial court in matters pertaining to such a controversy. See definition of abuse of discretion in Spalding v. Spalding (1959), 355 Mich. 382, 94 N.W.2d 810; also, see Kwiatkowski v. Kwiatowski (1949), 326 Mich. 346, 40 N.W.2d 174 as cited by this Court in Esslinger v. Esslinger (1967), 9 Mich.App. 11, 155 N.W.2d 702.

It is apparent that the trial court did attempt to separate plaintiff's statement as to the needs of the children to be borne by defendant from the needs of the plaintiff and the adult son before making its decision that the proper support payments were $65. We are not convinced that the trial court abused its discretion in setting support in accordance with the needs of the minor children beyond that supplied by plaintiff's earnings.

Defendant also urges this Court to exercise its power to modify the support payment as it was based on his gross income earned when he worked overtime 'often', totaling as much as 80 to 100 hours a week at a boring job (so characterized by defendant) in order to improve his standard of living. We must also add that he worked to improve the standard of living of his entire family. He also points out that if his support payments were to be computed at the rate of his weekly base income, he would only pay $38 a week, that he should not be punished because of his initiative in working long overtime, and that he has not worked overtime since October of 1966 because of poor health. Defendant is aware that the local court rules for the 14th Judicial circuit permit the trial court to consider overtime earnings of the husband in computing his net earnings, but he urges this Court to distinguish his working conditions, i.e., a boring job and precise time schedule, from that of other husbands in more interesting and flexible jobs. Were we to accept this contention, ...