Rohloff v. Rohloff

• Decision Date: 18 September 1987
• Docket Number: No. 89655,89655
• Citation: Rohloff v. Rohloff, 161 Mich.App. 766, 411 N.W.2d 484 (Mich. App. 1987)
• Parties: G. Anne ROHLOFF (now Marks), Plaintiff-Appellant, v. John L. ROHLOFF, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 484

411 N.W.2d 484

161 Mich.App. 766

G. Anne ROHLOFF (now Marks), Plaintiff-Appellant, v. John L. ROHLOFF, Defendant-Appellee.

No. 89655.

Court of Appeals of Michigan.

Submitted Feb. 11, 1987.

Decided July 21, 1987.

Released for Publication Sept. 18, 1987.

Marks, Svendsen, Bird & Wilson (by Roger A. Bird), Sturgis, for plaintiff-appellant.

Before MAHER, P.J., and SAWYER and TAHVONEN, ^* JJ.

SAWYER, Judge.

On December 12, 1983, the trial court entered a judgment of divorce granting custody of the parties' two minor children, Stacy and Jeffrey, to plaintiff and requiring defendant to pay $107 per week in child support until Stacy reached eighteen years of age, at which time the child support would be reduced to $64 per week until Jeffrey reached eighteen years of age. The parties also had a third child, Darleen, who had reached the age of majority by the time of the divorce. On July 23, 1984, plaintiff filed a petition for a modification of the judgment of divorce requesting that custody of Stacy be transferred to defendant and that custody of Jeffrey remain with plaintiff, but that plaintiff be allowed to remove Jeffrey from Michigan to Indiana, where plaintiff had secured employment. The trial court subsequently issued an order awarding defendant custody of Stacy, allowing plaintiff to continue custody of Jeffrey and to remove his residence to Indiana. Defendant's child support obligation was modified to $19.50 per week.

On June 14, 1985, defendant filed a petition for modification requesting that legal custody of Jeffrey be transferred to defendant and that plaintiff be obligated to pay child support for both Stacy and Jeffrey. Following a report of the friend of the court and a hearing, the trial court entered an order granting defendant physical custody of Jeffrey and requiring plaintiff to pay child support in the amount of $59 per week. Although plaintiff had remarried and voluntarily quit her employment, the trial court based its award of child support on the salary plaintiff had received prior to leaving her employment. Plaintiff now appeals and we affirm.

Plaintiff first argues that defendant failed to meet his burden of showing a change in circumstances to justify the awarding of child support. We disagree. Plaintiff is correct that there must be a change in circumstances to justify a modification of the child support award. M.C.L. Sec. 552.17; M.S.A. Sec. 25.97. However, the fact that there was a change of physical custody of the children from plaintiff to defendant constitutes a change in circumstances.

Plaintiff's next argument is that the trial court abused its discretion in basing the child support award on plaintiff's ability to earn, rather than her actual income. Again, we disagree. Plaintiff calls upon us to once again revisit an area which has troubled this Court in the past, namely the effect of a noncustodial parent's voluntary reduction in income on that parent's child support obligation. Although we have closely reviewed decisions of both this Court and the Supreme Court covering almost two decades, we believe that our analysis can begin with the particularly astute observation of the trial court in the case at bar that "however laudable her reasons now for not working, attempting to make stronger the marriage relationship she recently has entered into with Mr. Marks, that there regardless is a need for support to be paid to Mr. Rohloff." In the case at bar, plaintiff relies upon Dunn v. Dunn, 105 Mich.App. 793, 307 N.W.2d 424 (1981). However, before considering the Dunn decision, we believe it helpful to look back further in this Court's decisions and begin with consideration of the case of Travis v. Travis, 19 Mich.App. 128, 172 N.W.2d 491 (1969), wherein this Court held that the duty of child support is not limited to income, but that the court must also take into consideration the ability to work and earn money. In Travis, the Court concluded that the trial court properly considered the appellant's assets and income potential, noting that the appellant "has been content with a part-time job although he advances no reason why he cannot work a forty-hour week." Id. at 130, 172 N.W.2d 491.

Similarly, in Heilman v. Heilman, 95 Mich.App. 728, 291 N.W.2d 183 (1980), this Court, citing Travis, stated that the trial court could properly take into consideration the parent's ability to work and earn money and make an appropriate award. The Heilman Court concluded that, while the trial court could consider earning potential and place a lien against a possible tort recovery to pay a child support obligation, no child support obligation should have been imposed upon the defendant during the period when he had no earning capacity and no assets, namely time that he spent incarcerated in prison. Heilman, supra at 733, 291 N.W.2d 183.

A similar question was presented to both this Court and the Supreme Court in a series of cases which came by way of a review of a contempt-of-court citation for failure to pay a court-imposed child support obligation. In Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976), the Court held that, before citing a party for contempt for failure to obey a support order, the trial court must inquire into the party's ability to pay support and comply with the support order. While the Court was remorseful in its inability to provide precise guidelines for trial courts to employ in such situations, it did offer a number of factors which could be considered prior to making a finding of contempt. Id. at 378, 249 N.W.2d 88. Among those factors given by the Court were the party's employment history, "including reasons for any termination of employment," "[w]ork opportunities available," "[d]iligence employed in trying to find work," and "[a]vailability for work." Id. at 378-379, 249 N.W.2d 88. While the Sword Court did not directly face the question of the effect of voluntary unemployment on the child support obligation, the Court's criteria clearly indicate that a party's efforts, or lack of efforts, to become gainfully employed are appropriate criteria to consider in determining if a party has the ability to meet a support obligation.

Also in the line of cases arising from contempt orders is Cullimore v. Laureto, 66 Mich.App. 463, 239 N.W.2d 409 (1976). In Cullimore, the trial court cited the defendant for contempt after concluding that he had failed to exercise the diligence which would have provided him with the ability to satisfy his support arrearage obligation. In affirming the trial court, this Court noted that the record supported the conclusion that the defendant "comfortably accepts his unemployed status." Id. at 466, 239 N.W.2d 409. After noting that defendant had a self-proclaimed ability as a mechanic and a seven-year record of nonpayment, this Court concluded that it was "difficult to dispute the judge's finding that he was able but unwilling to assume his support obligations." Id. at 466, 239 N.W.2d 409.

In Causley v. LaFreniere, 78 Mich.App. 250, 259 N.W.2d 445 (1977), this Court affirmed a lower court order which, while not citing the defendant for contempt of court because of his unemployed status, ordered defendant to pay $5 per month in child support during his period of unemployment and, after regaining employment, to resume payments of $10 per week child support and an additional $5 per week to be applied to the accumulated arrearage. The trial court additionally ordered that a child support arrearage of $10 per week would be accumulated during the period of unemployment. This Court affirmed the trial court, noting "defendant had twenty-odd work days available each month in which to seek whatever employment would be necessary to earn $5." Id. at 253, 259 N.W.2d 445. The Court also noted that defendant could satisfy that obligation without endangering the receipt of his ADC-U benefits. See also Gonzalez v. Gonzalez, 121 Mich.App. 289, 328 N.W.2d 365 (1982), which applied Causley.

We now consider the limited number of cases, including Dunn, supra, which seem to support plaintiff's position. Prior to Dunn, this Court decided two other cases which considered the "bad faith" requirement that Dunn applied and plaintiff seeks to have applied in this case. In Moncada v. Moncada, 81 Mich.App. 26, 264 N.W.2d 104 (1978), this Court considered a case where the defendant voluntarily left a job, thus voluntarily reducing his income. This Court concluded that voluntary reductions in income, if made in bad faith, will not warrant a modification of support payments. Id. at 30-31, 264 N.W.2d 104. Similarly, the Court concluded that no reduction in child support payments is warranted where the party voluntarily worsens his financial position through unconscionable disregard for the welfare of his children. Id. at 31, 264 N.W.2d 104. However, the Court also ruled that, absent bad faith or wilful disregard for the children's interest, a voluntary reduction of income is not an adequate reason for a refusal to modify a support order. Id.

Thereafter, this Court followed this ruling in Rutledge v. Rutledge, 96 Mich.App. 621, 293 N.W.2d 651 (1980). In Rutledge, the defendant was an attorney who was employed at an annual salary of $24,000 who, thereafter, left his employment to enter private practice, whereupon his gross income dropped to approximately $2,500. This Court, applying the "bad faith test" adopted in Moncada, ruled that an individual should be allowed to make good faith changes in his employment and that his child would share in the financial inconvenience or hardship resulting from that change. Rutledge, supra at 625, 293 N.W.2d 651.

Finally, we turn to Dunn, the case relied upon by plaintiff. In Dunn, the plaintiff joined a religious order which required him to take a vow of poverty. As a result, the plaintiff's income was substantially reduced. This Court applied the bad-faith test and, concluding that the plaintiff had entered the ministry...