McCarthy v. McCarthy, Docket No. 27834

• Decision Date: 03 March 1977
• Docket Number: Docket No. 27834
• Citation: 74 Mich.App. 105,253 N.W.2d 672
• Parties: Margaret McCARTHY, Plaintiff-Appellee, v. Jack D. McCARTHY, Defendant-Appellant. 74 Mich.App. 105, 253 N.W.2d 672
• Court: Court of Appeal of Michigan — District of US

Page 672

253 N.W.2d 672

Margaret McCARTHY, Plaintiff-Appellee, v. Jack D. McCARTHY, Defendant-Appellant.

Docket No. 27834.

74 Mich.App. 105, 253 N.W.2d 672

Court of Appeals of Michigan.

March 3, 1977.

Released for Publication June 2, 1977.

[74 MICHAPP 106] McCauley & MacLeod by Francis W. McCauley, Detroit, for defendant-appellant.

Keidan, Keidan, Gornbein & Kaplan by Herschel P. Fink, Southfield, for plaintiff-appellee.

Before J. H. GILLIS, P. J., and CAVANAGH and D. E. HOLBROOK, Jr., JJ.

J. H. GILLIS, Presiding Judge.

For what is generally thought of as a routine procedure, this case presents us with a complicated fact situation due to the procedural irregularities which resulted in substantive errors.

[74 MICHAPP 107] Plaintiff and defendant were divorced by a judgment entered on August 11, 1970, by the Oakland County Circuit Court. The judgment provided that defendant pay $50 per week child support for the minor child of the parties (who was then two years old) until the child attained the age of 18 or until the further order of the court.

On April 12, 1974, plaintiff filed a motion for modification of the judgment to increase the child support payments. In July of 1974 a hearing was held regarding said motion, and as a result the trial judge ordered a temporary increase of $5 per week retroactive to May 1, 1974. We have no record of that hearing. On November 25, 1974, plaintiff filed another motion requesting a permanent support modification. The hearing on this motion was scheduled for February 20, 1975. Rather than conduct the hearing, the trial judge held an unrecorded conference in his chambers. The attorneys for the parties were present, but they are in dispute as to what was agreed upon during the meeting in chambers. An order was issued, however, by the trial judge modifying the judgment of divorce and requiring defendant to pay $75 per week for support of his child. Apparently the trial court based its order upon the Friend of the Court recommendation. ¹

On March 17, 1975, defendant filed a motion to set aside the modification order and for a rehearing of plaintiff's motion for modification on the grounds that the court had failed to conduct a hearing prior to the entering of said order. On September 22, 1975, the trial judge entered an order referring defendant's motion of March 17, [74 MICHAPP 108] 1975, to the Friend of the Court for a hearing by a referee and requiring that the transcript of the hearing be filed with the court.

On November 3, 1975 a hearing was held before Friend of the Court Hearing Referee Donald Tews. At this hearing testimony was taken from Assistant Friend of the Court, John Dunlop; defendant, Jack D. McCarthy; defendant's father, George D. McCarthy; and plaintiff, Margaret McCarthy. Subsequently, Hearing Referee Tews filed his finding with the court and recommended that the court affirm its previous order modifying the child support payments.

On February 6, 1976, the trial court heard oral arguments relative to defendant's rehearing motion. Reference was made to the Friend of the Court transcript. No objection was made by either party. The trial judge then ruled that defendant's rehearing motion was denied and that the original modification order was to remain in effect. Defendant appeals as of right.

The law regarding divorce judgments and modifications thereof is well defined. Upon petition of either parent or the Friend of the Court a trial court can, in its discretion, modify child support provisions contained in a divorce decree. M.C.L.A. § 552.17; M.S.A. § 25.97, Polley v. Polley, 367 Mich. 455, 116 N.W.2d 924 (1962); Spalding v. Spalding, 355 Mich. 382, 94 N.W.2d 910 (1959). The petitioning party has the burden of establishing a change in circumstances that would justify an alteration of the divorce judgment. Hentz v. Hentz, 371 Mich. 335, 123 N.W.2d 757 (1963); Cymbal v. Cymbal, 43 Mich.App. 566, 204 N.W.2d 235 (1972), Stros v. Stros, 25 Mich.App. 154, 181 N.W.2d 26 (1970).

Review of the trial court is de novo ; however, great weight is to be given to the trial judge's [74 MICHAPP 109] findings of fact. Krachun v. Krachun, 355 Mich. 167, 93 N.W.2d 885 (1959); Haskins v. Haskins, 11 Mich.App. 487, 161 N.W.2d 415 (1968). In order to aid the trial court in making its determination, the judge may refer the pending motion to the Friend of the Court for an investigation and recommendation. M.C.L.A. § 552.253; M.S.A. § 25.173. The trial judge may consider the report in reaching his decision, but the report is inadmissible as evidence unless all of the parties agree otherwise. Krachun v. Krachun, supra; Stros v. Stros, supra; Haskins v. Haskins, supra.

Although the law is clear, due to procedural irregularity, we are presently faced with questions to which the answers must be found between the legal guidelines.

There is no question that the trial court erred in its modification order of February 26, 1975, both procedurally and substantively. The order was made without a hearing and there was no agreement expressed or implied to allow the court to utilize solely the Friend of the Court's recommendation. Krachun v. Krachun, supra; Stros v. Stros, supra. Additionally, the recommendation was based totally upon the fact of defendant's increase in salary. All relevant factors are to be considered in determining whether there has been a sufficient change in circumstances. Cymbal v. Cymbal, supra; Stros v. Stros, supra. The isolated consideration of income is error. Cymbal v. Cymbal, supra.

The question then becomes, did the subsequent Friend of the Court hearing cure the above error? Although given a different set of circumstances we may hold differently, in the present case we find that due to a combination of factors, the error was not cured.

It is unclear upon what factors the trial court [74 MICHAPP 110] based its decision to affirm the original order. Regardless of whether the judge relied upon the oral arguments of the parties, the hearing transcript, or the referee's recommendation, we find error.

There is no evidence of an agreement by the parties or a ruling by the judge allowing the Friend of the Court proceedings to be admitted into evidence. The trial judge merely stated without reason that the original order was to remain in effect. "It is impossible to review de novo when the basis of the court's finding was not received in evidence and is not in the record." Haskins v. Haskins, supra, 11 Mich.App. at 491, 161 N.W.2d at 417.

Assuming arguendo that we treat the hearing transcript and referee's recommendation as evidence, we still find error. The transcript provides voluminous testimony regarding defendant's indebtedness, which was derived from various sources, his educational background and salary increases. Plaintiff testified as to her estimate of the cost of raising her child, that being between $6,000 and $7,000. We find no proof on the record to support this estimate....