Radway v. Radway

• Decision Date: 07 February 1978
• Docket Number: Docket No. 31170
• Citation: 265 N.W.2d 202,81 Mich. App. 328
• Parties: Brenda C. RADWAY, Plaintiff-Appellee, v. Richard M. RADWAY, Defendant-Appellant. 81 Mich.App. 328, 265 N.W.2d 202
• Court: Court of Appeal of Michigan — District of US

Page 202

265 N.W.2d 202

Brenda C. RADWAY, Plaintiff-Appellee, v.Richard M. RADWAY, Defendant-Appellant.

Docket No. 31170.

81 Mich.App. 328, 265 N.W.2d 202

Court of Appeals of Michigan.

Feb. 7, 1978.

Released for Publication April 26, 1978.

[81 MICHAPP 329]Farhat, Burns & Story, P. C. by Norman C. Farhat, Lansing, for defendant-appellant.

Larry D. Fowler, Lansing, for plaintiff-appellee.

[81 MICHAPP 330]Before RILEY, P. J., and J. H. GILLIS and MAHER, JJ.

PER CURIAM.

The parties to the dispute were married in 1963.They have two children.In October, 1969, plaintiff wife filed for divorce.In a consent judgment of divorce granted in November, 1972, plaintiff wife received custody of the two children.Additionally, defendant husband was ordered to pay support of $75 per week as well as alimony of $25 per week.

In January, 1975, defendant, who is a certified public accountant, was fired from or voluntarily left his father's business after a disagreement with his father.Defendant had been earning $30,000 annually but could not find a job after leaving the family business.During this period defendant paid only $50 per week in child support since his unemployment benefits were only $94 per week.

Defendant petitioned, in January, 1975, to reduce his support payments and in August, 1975, he sought to change the custody of the two children.In an April 1, 1976, opinion and in an order dated May 17, 1976, the trial court determined and ordered that custody should remain in the plaintiff.The trial court also found that defendant had an above average ability to earn sufficient income to pay the alimony and child support awarded in the divorce decree.

In a December 2, 1976, opinion the lower court awarded plaintiff $3,141.46 in attorney fees and $1,201.81 in costs and expenses.

Defendant's delayed appeal was granted on February 10, 1977, but further findings were required.The hearing on remand was held on April 1, 1977.In an opinion containing the requested findings of fact, the trial court reaffirmed its previous decision.[81 MICHAPP 331]Defendant now appeals the December 2, 1976, and the May 17, 1977, orders of the trial court.

The Child Custody Act of 1970, M.C.L.A. § 722.21 et seq.;M.S.A. § 25.312(1) et seq., provides the general guidelines for appellate review of custody decisions:

"(A)ll orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue."M.C.L.A. § 722.28;M.S.A. § 25.312(8).

See, also, Bahr v. Bahr, 60 Mich.App. 354, 230 N.W.2d 430(1975).

It appears that both parents can support the children financially.The rest of the testimony dealt largely with the relationships between the parents and their children and the conception each child had of each parent.In making the determination of custody, the court must use the best interest of the child standard.Only if there is presented clear and convincing evidence that it is in the best interest of the child, will a court change a previous custody order.M.C.L.A. § 722.27(c);M.S.A. § 25.312(7)(c).Examining the evidence in this case, we cannot say that the trial court committed an abuse of discretion in giving plaintiff-wife custody of the children.

We acknowledge that through an agreement of the parties, the children now reside with the defendant husband.We commend the parties for reaching such an accord on their own without the intrusion of the state into what should ideally be a private matter.Nevertheless, the trial court's decision is legally binding.While the parties may [81 MICHAPP 332] agree to a settlement inter se, they cannot usurp the legal function of this Court.In the instant case, however, we find no cause, at the present time, to interfere with the parties' arrangement.

The other two parts of the trial court's judgment to which defendant objects present us with greater difficulty.The trial court refused to reduce alimony and child support payments after defendant lost his job when his income declined from $30,000 per year to $6,000 per year.

The court deemed defendant had "a sufficient and better than average ability to earn income in sufficient amounts to defray the alimony awarded in the judgment of divorce (and) to pay the child support awarded in the judgment".At the time of the original hearing in this case, April 1, 1976, defendant was apparently employed, but had been unemployed in 1975.We have no information concerning the nature of his employment in April, 1976, when the first opinion was written or in May, 1977, after the trial court held the hearing on remand.We are not apprised of defendant's salary nor of his efforts, if any, to secure different employment both in 1975 and afterwards.Both of these factors are of paramount importance in evaluating defendant's obligation to pay past due alimony and child support.

While the trial court's conclusions of law seem correct, we must know the factual bases for those conclusions in order to adequately review the decision from which defendant appeals.Furthermore, any other factors which may have intervened in the period between the trial court's last decision and the present should be taken into account by the trial court.Such factors may shed light on defendant's ability or inability to pay the arrearage.For clarification of these areas, we must remand the cause to the trial court.

[81 MICHAPP...