Herman v. Herman, Docket No. 52004

Decision Date08 September 1981
Docket NumberDocket No. 52004
Citation109 Mich.App. 107,310 N.W.2d 911
PartiesCatherine A. HERMAN, Plaintiff-Appellant, v. Thomas C. HERMAN, Defendant-Appellee. 109 Mich.App. 107, 310 N.W.2d 911
CourtCourt of Appeal of Michigan — District of US

[109 MICHAPP 108] Lyndon J. Lattie, Flint, for plaintiff-appellant.

Mark C. McCabe, Flint, for defendant-appellee.

Before T. M. BURNS, P. J., and HOLBROOK and GLASER, * JJ.

PER CURIAM.

Plaintiff appeals as of right a May 30, 1980, lower court order that amended the parties' judgment of divorce and instructed plaintiff to pay defendant $28 per week in child support on behalf of two of the parties' five children over whom defendant was awarded custody.

The single issue in this appeal is whether the trial judge abused his discretion in ordering plaintiff to pay the child support.

Upon petition of either parent or the friend of the court, a trial judge may modify the child support provisions of a divorce judgment if the petitioning party establishes a change in circumstances that would warrant a modification. Hentz v. Hentz, 371 Mich. 335, 123 N.W.2d 757 (1963), [109 MICHAPP 109] Andris v. Andris, 77 Mich.App. 715, 259 N.W.2d 203 (1977). Although this Court affords de novo review to the trial judge's findings, great weight is given to the judge's decision in the matter. Krachun v. Krachun, 355 Mich. 167, 93 N.W.2d 885 (1959), McCarthy v. McCarthy, 74 Mich.App. 105, 253 N.W.2d 672 (1977). This Court will not reverse unless it is convinced that it would have reached a result different from that of the trial judge. Dunn v. Dunn, 105 Mich.App. 793, 307 N.W.2d 424 (1981).

Plaintiff argues that the trial judge abused his discretion in ordering her to pay a percentage of her income but not less than a fixed sum. The case relied upon principally by plaintiff is Stanaway v. Stanaway 70 Mich.App. 294, 245 N.W.2d 723 (1976).

In Stanaway, the plaintiff was required to pay child support "in an amount equal to six (6%) per cent of his adjusted gross income, as defined for federal income tax purposes, but not less than the sum of $165 monthly". Id., 295, 245 N.W.2d 723. This Court held that the imposition of this escalator clause was an abuse of discretion because it allowed continued alteration of the divorce decree as to the amount of support. Further, the clause focused exclusively on the financial circumstances of the plaintiff-husband while ignoring the complex factors related to the changing needs of the minor child.

In this case the trial judge used a percentage of plaintiff's current income to calculate an appropriate amount of support. The judge ordered each party to pay a fixed amount of support for the children in the custody of his or her former spouse. The amount of support is not variable and either party can petition for modification if and when circumstances change. Therefore, the holding of this Court in Stanaway does not apply to this case.

[109 MICHAPP 110] Plaintiff next argues that the trial judge abused his...

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2 cases
  • Stone v. Stone
    • United States
    • West Virginia Supreme Court
    • February 8, 1984
    ...e.g., Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972); Kelley v. Kelley, 378 So.2d 1069 (La.App.1979); Herman v. Herman, 109 Mich.App. 107, 310 N.W.2d 911 (1981); Meysenburg v. Meysenburg, 208 Neb. 456, 303 N.W.2d 783 (1981); Ionno v. Ionno, 148 N.J.Super. 259, 372 A.2d 624 (1977)......
  • Pott, In re
    • United States
    • Court of Appeal of Michigan — District of US
    • March 5, 1999
    ...correct that Patty Pott's legitimate income has no bearing on the child support question that is at issue here, Herman v. Herman, 109 Mich.App. 107, 110, 310 N.W.2d 911 (1981), the challenged court order does not seek to reveal her legitimate income. Instead, the issue here is whether defen......

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