Holmes v. Holmes
| Decision Date | 04 December 2008 |
| Docket Number | Docket No. 276470. |
| Citation | 281 Mich. App. 575,760 N.W.2d 300 |
| Parties | HOLMES v. HOLMES. |
| Court | Court of Appeal of Michigan — District of US |
Perry Stuursma Van Dyken, P.C. (by Ann M. Stuursma), for the defendant.
Before: BANDSTRA, P.J., and BECKERING and GLEICHER, JJ.
In this dispute regarding child support, plaintiff appeals by delayed leave granted a circuit court order granting defendant's motion to modify his child support obligation. We reverse and remand.
The parties married in 1988 and consented to the entry of a divorce judgment on July 15, 1996. The parties, who are both attorneys, have two minor children. At that time of the divorce, plaintiff practiced in a small Grand Rapids law firm. She now serves as the president of her family's construction business and no longer practices law. Defendant is a partner in a large, statewide law firm.
The parties' consent judgment of divorce incorporated a document entitled "Alimony, Custody, Child Support, Parenting Time, and Property Settlement Contract" (the contract). The contract provided for joint legal custody of the children, with plaintiff receiving physical custody. Defendant's parenting time consisted of 12 overnight visits a month, or approximately 164 days a year with other vacation times included. Paragraph 7 of the contract, entitled "Child Support," is the disputed portion at the center of this appeal. It provides:
Husband shall pay child support in the amount of One Thousand, Two Hundred Sixty-three ($1,263.00) Dollars per month (see attached calculations), which includes his portion of the payment for the children's nanny. Further, Husband shall pay twenty-five percent (25%) of any net bonus he receives in any given year as additional child support. When the oldest child attains the age of 18 or completes high school, whichever event occurs last, this payment shall be reduced to fifteen percent (15%) of his net bonus, and shall terminate upon the youngest child's attaining the age of 18 or graduating from high school, whichever last occurs. [Emphasis supplied].
The parties agree that they calculated defendant's $1,263 monthly child support obligation by adding together the amount that would have been due under the standard child support guidelines in the Michigan Child Support Formula Manual (MCSFM) if plaintiff had been given sole custody ($1,697.81) and the amount calculated under the shared economic responsibility formula (SERF)1 ($828.25) and then dividing by two.2 When they negotiated the contract, the parties recognized that defendant's substantial parenting time would potentially entitle him to application of the SERF. They agreed on the compromise embodied in the contract to avoid a protracted courtroom battle regarding both parenting time and child support.
Paragraph 8 of the contract, entitled "Additional Child Support Provision," addressed future child support modification:
All child support shall be paid through Kent County Friend of the Court and shall be subject to all Friend of the Court regulations and supervisory fees. Husband waives the right to assert shared economic participation and agrees not to introduce the shared economic concept into the support calculation for the minor children for a ten-year period. Wife agrees that as long as Husband exercises the parenting time specified in this Agreement, the same shall be effected in the support calculation.
Husband and Wife agree that support shall remain fixed for one year after the entry of the Judgment of Divorce, before it can be reviewed, and that support will be reviewed only in the event that either Husband or Wife is receiving greater compensation than at the time of the entry of the Judgment of Divorce. In no event shall child support be reduced, unless Husband is completely unemployed on a non-voluntary basis, or unless Wife's earnings increase. [Emphasis supplied.]
In 1997, the parties filed competing motions to modify defendant's monthly child support payments. Plaintiff sought a significant increase, alleging that her income declined when her law firm closed its doors and she became self-employed. Defendant advocated application of the SERF, averring that because he had 14 parenting time days a month, the SERF was more equitable. Plaintiff countered that in the contract defendant had "agreed not to assert shared economic responsibility for a period of ten years."
The circuit court increased defendant's child support payment to $1,391 a month, observing as follows in its written opinion and order:
The issue is complicated by the fact that the judgment incorporates by reference a document entitled "alimony, custody, child support, parenting time, and property settlement contract" entered by and between the parties under date of March 16, 1996. This rather singular document addresses child support in paragraphs 7 and 8 on pages 3 and 4. Paragraph 7 establishes child support for the 2 minor children of the parties at $1263.00 per month, including child care, which figure is ostensibly based upon "attached calculations." Lamentably however, no such calculations are in fact attached to the document.
The circuit court calculated the $1,391 monthly figure through a formula of its own creation, which was more complex than simply adding the standard guidelines and SERF numbers, then dividing the total by two. The circuit court further ordered that no child support review would occur for 24 months, absent an "extraordinary change in circumstances."
On September 28, 2001, defendant filed a motion "for child support calculation pursuant to judgment of divorce." He requested that the newly assigned circuit court judge reconsider the previous judge's calculation method and instead calculate the support obligation by combining the standard guidelines amount with the SERF amount and dividing by two. Plaintiff responded that the previously employed method constituted the law of the case. The parties also argued regarding whether the calculation would be made using defendant's "base salary" or his "income." The circuit court ruled that the parties had intended to use the formula advocated by defendant. In December 2002, the parties stipulated a monthly child support payment of $1,383.3 Defendant continued to pay 25 percent of his net bonus as child support.
During the 10-year period described in ¶ 8 of the contract, the parties fought several contentious custody battles and filed multiple motions seeking child support modification.4 Notably, neither party challenged the portion of the 1996 contract addressing the percentage of defendant's bonus to be paid as child support. Defendant consistently paid 25 percent of his net bonuses as child support, which in some years represented substantial, six-figure sums.
Shortly before the 10-year anniversary of the divorce judgment, defendant moved for modification of his child support obligation. Defendant contended that he could now introduce the "shared economic concept" because the 10-year period of forbearance specified in the contract would soon expire. Defendant invoked the following contract provision: "Husband waives the right to assert shared economic participation and agrees not to introduce the shared economic concept into the support calculation for the minor children for a ten-year period." Defendant averred that he had custody of the children for 172 days a year and that the court thus had to apply the SERF. He sought a reduction of his support obligation to $636 a month, which constituted 4 percent of his average monthly income, and a commensurate reduction in the amount of the support payment deducted from his net bonus, from 25 percent to 4 percent.
Plaintiff responded that no basis existed for modifying defendant's support obligation because defendant had failed to show a "change in circumstances." Plaintiff further argued that the bonus percentage had been established in the contract and could not be modified. Plaintiff calculated that under the SERF, defendant would pay $1,134 a month and under the straight guidelines formula, he would pay $2,076.30 each month.
The circuit court referred the matter to the Friend of the Court, explaining as follows:
The Court does find that there has been a change in circumstances presented.
I am satisfied that having the ten years lapse is a basis to re-evaluate appropriate support for the two children.
I'm also satisfied that it's been two years since the last review of child support.
And, I'm further satisfied that based on the allegations set forth within both briefs, that there's a change in the income of both parties. And, also that the overnight stays which have been kept track by both parties in copious and voluminous notations, deserves review.
On March 31, 2006, plaintiff filed a cross-motion for modification of child support, alleging a change of circumstances that included defendant's failure to use all of his parenting time and an increase in defendant's income. On April 14, 2006, the circuit court referred the matter "for review and a recommendation to a mediator selected and agreed upon by the parties." On October 2, 2006, mediator David C. Sarnacki issued his report and recommendations, which included the following:
39. In this case, the parties' original agreement included a regular monthly support amount and a provision for additional child support in the amount of 25% of any net bonus. The 1996 support calculations showed that the regular monthly child support obligation was about 25.4% of Richard's net income.
40. Richard and his attorney (who calculated the 1996 obligation) contend that the 25% figure was deliberately set based on the percentage of obligation to net income. Elizabeth contends that she was never told this in 1996 and that she did not know how Richard selected the 25%. She merely agreed to his proposal...
To continue reading
Request your trial
- LeFever v. Matthews
- Wells Fargo Bank v. Cherryland Mall Ltd.
-
Demski v. Petlick
...hold that defendants have waived appellate review of the trial court's failure to consider those factors. See Holmes v. Holmes, 281 Mich.App. 575, 587–588, 760 N.W.2d 300 (2008) ("A party may not take a position in the trial court and subsequently seek redress in an appellate court that is ......
- Woodington v. Shokoohi