Jacobs v. Jacobs, Docket No. 56684

• Decision Date: 07 October 1982
• Docket Number: Docket No. 56684
• Citation: 118 Mich.App. 16,324 N.W.2d 519
• Parties: Jeffrey Allen JACOBS, Plaintiff-Appellant, v. Judy Lynn JACOBS, Defendant-Appellee. 118 Mich.App. 16, 324 N.W.2d 519
• Court: Court of Appeal of Michigan — District of US

Page 519

324 N.W.2d 519

Jeffrey Allen JACOBS, Plaintiff-Appellant, v. Judy Lynn JACOBS, Defendant-Appellee.

Docket No. 56684.

118 Mich.App. 16, 324 N.W.2d 519

Court of Appeals of Michigan.

Submitted March 4, 1982.

Decided July 13, 1982.

Released for Publication Oct. 7, 1982.

[118 MICHAPP 18] Acevedo & Baggott, Detroit, for plaintiff-appellant.

Brukoff, Beras & Stewart, P. C., Southfield, for defendant-appellee.

Before MAHER, P.J., and BEASLEY and MARUTIAK, ^* JJ.

PER CURIAM.

Plaintiff and defendant were granted a judgment of divorce in the Wayne County Circuit Court on August 4, 1972. The judgment awarded custody of the parties' minor child to the defendant and required the plaintiff to pay $30 a week for child support. On April 1, 1976, pursuant to a motion by defendant, the judgment of divorce was modified to increase child support to [118 MICHAPP 19] $38 a week. On July 13, 1977, because his job as a police officer had been terminated, plaintiff filed a motion to decrease child support. On July 12, 1978, an order modifying the judgment of divorce was entered, reducing child support to $28 a week. On September 2, 1980, defendant filed a motion to increase child support. The matter was referred to the Friend of the Court and a recommendation was made to increase support to $48 a week, retroactive to November 28, 1980. Defendant filed written objections to the recommendation. On February 20, 1981, a hearing was held on defendant's motion in the circuit court. After hearing argument by both counsel, the trial court adopted the Friend of the Court's recommendation and entered an order on February 25, 1981, increasing child support to $48 a week, with retroactive effect to November 28, 1980. Plaintiff appeals as of right.

Following the divorce, plaintiff remarried, but that marriage also ended in divorce. Plaintiff has a son from that marriage and is obligated to pay child support. Plaintiff remarried since then and is living with his present wife in a home of which she is the sole owner. Since the termination of plaintiff's job as a police officer in 1977, he has been employed as a taxicab driver, receiving a gross salary of $150 per week. The cab company, consisting of just one taxi, was purchased by plaintiff's present wife just before her marriage to the plaintiff. Apparently all the assets of this marriage are the sole property of plaintiff's current wife.

Despite a request by the Friend of the Court, plaintiff failed to produce a profit and loss statement for the cab company. Plaintiff also failed to produce his income tax returns for the years 1978, 1979, and 1980, pursuant to defendant's request, at a properly scheduled deposition.

[118 MICHAPP 20] Defendant has not remarried since the divorce. She is employed as a registered nurse and receives a net salary of $259 per week.

On appeal, plaintiff initially contends that the trial court abused its discretion in entering its order without conducting a prior evidentiary hearing and failing to make findings of fact, as is required by GCR 1963, 517.1. We agree.

A trial court has the statutory power to modify orders for child support upon a showing by the petitioning party of a change in circumstances sufficient to justify modification. M.C.L. Sec. 552.17; M.S.A. Sec. 25.97, McCarthy v. McCarthy, 74 Mich.App. 105, 108, 253 N.W.2d 672 (1977), Cymbal v. Cymbal, 43 Mich.App. 566, 204 N.W.2d 235 (1972). Such modification is within the trial court's discretion and its decision to modify will not be disturbed absent a clear abuse of discretion. Hagbloom v. Hagbloom, 71 Mich.App. 257, 247 N.W.2d 373 (1976), Cullimore v. Laureto, 66 Mich.App. 463, 239 N.W.2d 409 (1976). While appellate review of divorce decree modifications is de novo, this Court will nevertheless give "grave consideration" to findings made by the trial court and will not reverse unless it is convinced it would have reached a different result had it occupied the trial court's position. Rutledge v. Rutledge, 96 Mich.App. 621, 624, 293 N.W.2d 651 (1980), Wagner v. Wagner, 105 Mich.App. 388, 390, 306 N.W.2d 523 (1981). All relevant factors are to be considered in determining whether there has been a sufficient change of circumstances to justify a change in an order granting child support. Moncada v. Moncada, 81 Mich.App. 26, 264 N.W.2d 104 (1978), Cymbal v. Cymbal, supra.

Additionally, in Hakken v. Hakken, 100 Mich.App. 460, 464-465, 298 N.W.2d 907 (1980), this Court emphasized the need for a premodification evidentiary hearing:

[118 MICHAPP 21] " * * * the law is clear that the court must hold an evidentiary hearing before a modification in support is ordered in absence of agreement of the parties. There must be a record of that hearing. The judge should place on the record a brief finding of the basis of his decision, even though findings of fact are not required on motions generally. * * * These findings need not be elaborate or particularized but should indicate the basis of decision for appellate review. GCR 1963, 517.1 * * *." (Citations omitted.)

In this case, the trial court summarily issued its ruling after oral arguments by both parties' counsel and the Friend of the Court's representative. No full evidentiary hearing was ever conducted despite the obvious factual disputes between the parties. The court was understandably impatient over plaintiff's flagrant noncompliance with repeated requests to produce certain documents. Nonetheless, its failure to hold an evidentiary hearing and make findings in support of its decision was an abuse of discretion. Furthermore, the court's order improperly placed the burden of showing a change of circumstances on the plaintiff. It was the defendant's burden to show a change in circumstances sufficient to justify modification of the divorce judgment.

Secondly, the plaintiff claims error in the trial court's failure to consider his support obligation to another child from his second marriage.

Consideration of the costs of additional familial obligations as a basis for modifying a judgment of divorce to reduce support payments is improper. Renn v. Renn, 318 Mich. 230, 27 N.W.2d 618 (1947), Hensinger v. Hensinger, 334 Mich. 344, 54 N.W.2d 610 (1952), Hakken v. Hakken, supra.

However, in Schneider v. Schneider, 30 Mich.App. 124, 186 N.W.2d 17 (1971), this Court upheld the trial court's consideration of a father's support obligation to another child from a second marriage [118 MICHAPP 22] on a petition to increase child support. The Court drew a distinction between petitions to reduce child support, where it is improper to consider other familial obligations of a noncustodial parent, and petitions to increase child support, where it found such considerations to be proper. Here, defendant was petitioning for an increase in child support. Thus, under Schneider, it was improper for the trial court to fail to consider plaintiff's support obligation to another child. We find this holding to be consistent with the rule that all relevant factors should be considered in entertaining a petition to modify child support. Rutledge v. Rutledge, supra. ¹

In addition, plaintiff contends that the trial court's adoption of the Friend of the Court's recommendation, over plaintiff's written objections, constituted error. Plaintiff relies primarily on Dempsey v. Dempsey, 96 Mich.App. 276, 292 N.W.2d 549 (1980), modified on other grounds 409 Mich. 495, 296 N.W.2d 813 (1980), in support of his position.

In Michigan, the trial court is authorized by statute to refer divorce matters in which the rights of minor children are involved to the Friend of the Court for an...