Kalter v. Kalter, Docket No. 87504

• Decision Date: 10 February 1987
• Docket Number: Docket No. 87504
• Parties: Judith A. KALTER, Plaintiff-Appellant, v. Alan KALTER, Defendant-Appellee. 155 Mich.App. 99, 399 N.W.2d 455
• Court: Court of Appeal of Michigan — District of US

Page 455

399 N.W.2d 455

Judith A. KALTER, Plaintiff-Appellant, v. Alan KALTER, Defendant-Appellee.

Docket No. 87504.

155 Mich.App. 99, 399 N.W.2d 455

Court of Appeals of Michigan.

Submitted May 13, 1986.

Decided Oct. 6, 1986.

Released for Publication Feb. 2, 1987.

Leave to Appeal Denied Feb. 10, 1987.

[155 MICHAPP 100] Hyman, Gurwin, Nachman, Friedman & Winkelman by Dennis R. Alexander, Southfield, for plaintiff-appellant.

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

Before HOOD, P.J., and WAHLS and ELLIOTT, ^* JJ.

ELLIOTT, Judge.

At a hearing for increased child support, Judge Steven N. Andrews ruled as follows (we add facts by footnote):

"The pertinent facts presented to the Court are as follows: The parties were divorced on January 10, 1979. Custody of the minor child, Barrett, was granted to the plaintiff mother, and the defendant father was ordered to pay child support in the amount of $100 per week.

"As part of the divorce judgment, the plaintiff gave the defendant a $2,000 lien on the marital [155 MICHAPP 101] home, ¹ payable on the occurrence of certain specified events. All claims to alimony were barred.

"Pursuant to plaintiff's motion for an increase in child support, a hearing was held by the Friend of the Court on May 24, 1984.

"In its order of September 5, 1984, this Court increased the amount of child support to $155 per week, effective April 5, 1983. The parties agree that this has resulted in a gross arrearage of $2,377.20. ²

"This Court now reviews, de novo, plaintiff's motion for increased child support.

"Having reviewed the transcript of the hearing conducted before the Friend of the Court, this Court finds that the incomes of both the custodial and non-custodial parents have increased since the divorce, although the father's increase has been greater than the mother's. During the year prior to the judgment of divorce, plaintiff's income was $17,545 and defendant's income was $40,999. In 1984 plaintiff's income was $33,500 and defendant's income was $200,000.

"The Court also finds that the child's basic needs are being met, and the parties are in agreement on this. ³

"Any increases in the child's needs are those due [155 MICHAPP 102] to his age and social development, and the increased cost of living.

"The issue before the Court, therefore, is defendant's proper contribution to the income available to elevate the standard of living of Barrett and, incidentally, the plaintiff. ⁴

"A court has discretion as to modifications in child support, and the burden is on the petitioning party to show that a change in circumstances justifies the modification requested. McCarthy v McCarthy, 74 Mich App 105 (1977). Support payments are not property of the custodial parent, and are for the sole benefit of the child, measured by the needs of the child. Copeland v Copeland, 109 Mich App 683 (1981).

"To estimate the cost of supporting Barrett, the plaintiff cites those expenses which are solely and directly attributable to him, such as tennis lessons and haircuts. She then estimates other living expenses such as mortgage payment, insurance, car payment, utilities, and taxes, adds them, and then divides by two.

"The Court is unpersuaded by plaintiff's economic theory. Many of the expenses plaintiff enumerates are affected minimally, if at all, by the fact that Barrett resides with the plaintiff. Certainly she could not maintain her current standard of living on half of what it now costs, but for Barrett's presence.

"The Court finds, therefore, that based on the changed circumstances, to-wit, the increased cost of living and Barrett's age and social development, an increase in child support from $100 per week to $155 per week is reasonable.

"As to the $2,377.20 arrearage in support payments incurred by defendant, he argues that he is entitled to a $2,000 setoff because of the lien which became payable upon the occurrence of certain [155 MICHAPP 103] conditions, one of which, the sale of the marital home, has occurred.

"Plaintiff argues that there was an oral modification of the divorce judgment, and the defendant is estopped from seeking an offset. However, at the May 23, 1984 hearing before the Friend of the Court, the plaintiff acknowledged that this is 'a continuing obligation' that she would have to 'make some arrangement for.' Transcript at page 36.

"The Court finds that the defendant father is entitled to a $2,000 offset in satisfaction of the lien, and that the total amount of the defendant's arrearage is $377.20."

We agree with Judge Andrews. It is improper to consider for the purpose of setting child support one-half of the plaintiff mother's expenses for her car, condominium, utilities and insurance to be money spent on behalf of her son. Some of those living expenses may be increased somewhat by him, but she would have the bulk of those expenses without him. A portion of her mortgage payment is an investment. The needs of the boy, realistically shown by the plaintiff's testimony, are adequately met by support payments from the father of $155 per week which total $8,060 annually.

Plaintiff argues that a customary percentage of the father's greatly increased income would result in a much larger support figure. Her request for $320 per week finds support in proposed guidelines. The Child Support Manual, submitted on May 22, 1986, by the Friend of the Court Bureau to the State Court Administrator's Office to the Friend of the Court Advisory Committee, suggests the following computations:

1. Defendant's annual net income, $160,000, plus plaintiff's $24,000, totals $184,000 or a total net family income of $3,538 per week;

[155 MICHAPP 104] 2. A table in the manual states support for one child from both parents should be $175 on the first $1,100 of net family income and ten percent of any excess over $1,100;

3. The resulting sum is $175, plus $243.80, totaling $418.80 per week, or $21,777 per year, as support for one child;

4. Of this amount the manual recommends that the father pay eighty-seven percent, (his net income, $160,000, divided by the total net income of both parents, $184,000);

5. Thus, the manual would compute Mr. Kalter's weekly support obligation at $367, or more than $19,000 per year.

This demonstrates that guidelines and percentages used without limitation are unrealistic and unfair when both parents have substantial incomes. See Stanaway v. Stanaway, 70 Mich.App. 294, 245 N.W.2d 723 (1976). Support should be based on the child's needs as well as the parents' ability to pay. Cochran v. Buffone, 137 Mich.App. 761, 766, 359 N.W.2d 557 (1984). When a parent has an ability to pay a large amount of support, the determination of a child's needs can be generous, but all any parent should be required to pay, regardless of his or her ability, is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered support that is more than reasonably needed for the child becomes, in fact, tax-free alimony. When the custodial parent is employed, that parent should also contribute fairly to the maintenance of the child. This Court has stated on this point as follows:

"The plaintiff wife, however, should not be relieved entirely of her obligation to support the children solely because the defendant husband [155 MICHAPP 105] may happen, for whatever reason, to be financially able to support the children without assistance." Beverly v. Beverly, 112 Mich.App. 657, 662, 317 N.W.2d 213 (1981).

At some point, too much money can be bad for a child. Also, a court order for excessive child support can harm the relationship with the child when a parent is ordered to pay too much. A father should take his son to ball...