Stallworth v. Stallworth

• Decision Date: 17 April 2007
• Docket Number: Docket No. 266202.
• Citation: 275 Mich. App. 282,738 N.W.2d 264
• Parties: Katrina STALLWORTH, Plaintiff-Appellee v. Keith STALLWORTH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

738 N.W.2d 264

275 Mich. App. 282

Katrina STALLWORTH, Plaintiff-Appellee v. Keith STALLWORTH, Defendant-Appellant.

Docket No. 266202.

Court of Appeals of Michigan.

Submitted March 6, 2007, at Detroit.

Decided April 17, 2007, at 9:10 a.m.

Released for Publication August 29, 2007.

Law Offices of Sullivan and Leavitt, P.C. (by Michael J. Leavitt and Derk A. Wilcox), Northville, for the defendant.

Before: MARKEY, P.J., and MURPHY and KIRSTEN FRANK KELLY, JJ.

MARKEY, P.J.

Defendant appeals by right a divorce judgment entered on September 15, 2004. He contests the amount of the child and spousal support award, as well as the awarding of attorney fees to plaintiff. We vacate in part, affirm in part, and remand for further proceedings.

Defendant argues that the trial court improperly imputed income to him. In fact, the trial court not only imputed income to defendant but also found that defendant had financial resources unaccounted for in his yearly income statements, so the court considered those financial resources when computing defendant's net income.

The Michigan Legislature has required that when a court orders child support as part of a divorce judgment, "the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau" unless to do so would be "unjust or inappropriate" and the trial court makes certain specified findings "in writing or on the record. . . ." MCL 552.605(2); Peterson v. Peterson, 272 Mich.App. 511, 516-517, 727 N.W.2d 393 (2006). Thus, a trial court must presumptively follow the Michigan Child Support Formula (MCSF). If the court deviates, it must make an adequate record regarding the mandatory statutory criteria for doing so. Burba v. Burba (After Remand), 461 Mich. 637, 644-646, 610 N.W.2d 873 (2000). We review de novo whether a trial court properly reached its determination within the framework of the MCSF or the statutory deviation criteria. Id. at 647, 610 N.W.2d 873; Peterson, supra at 516, 727 N.W.2d 393. We review for clear error, however, the trial court's factual findings underlying its determination of a child support award. MCR 2.613(C); Beason v. Beason, 435 Mich. 791, 804-805, 460 N.W.2d 207 (1990). A finding is clearly erroneous if this Court, on all the evidence, is left with a definite and firm conviction that a mistake was made; the appellant bears the burden of showing that a mistake was made. Id. We review for an abuse of discretion a trial court's discretionary rulings that are permitted by statute or the MCSF. Borowsky v. Borowsky, 273 Mich.App. 666, 672, 733 N.W.2d 71 (2007). "An abuse of discretion occurs when a court selects an outcome that is not within the range of reasonable and principled outcomes." Id., citing Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006).

According to the 2004 Michigan Child Support Formula Manual, the first step in determining a child support award is to ascertain each parent's net income by considering all sources of income. 2004 MCSF 2. In general, this is determined by ascertaining "the actual resources of each parent." MCL 552.519(3)(a)(vi); Ghidotti v. Barber, 459 Mich. 189, 198, 586 N.W.2d 883 (1998). But longstanding Michigan caselaw permits a court to impute income to a parent on the basis of the parent's unexercised ability to pay when supported by adequate fact-finding that the parent has an actual ability and likelihood of earning the imputed income. Id. at 198-199, 586 N.W.2d 883. Consistent with this caselaw, the MCSF grants a court the discretion to impute income to a parent, 2004 MCSF 2.10(B), which the manual defines as "treating a party as having income or resources that the individual does not actually have." 2004 MCSF 2.10(A). "This usually occurs in cases where there is a voluntarily [sic] reduction of income or a voluntary unexercised ability to earn." Id.

In this case, the trial court accepted testimony from plaintiff and plaintiff's witnesses that defendant earned or had access to monies other than his reported $2,500 a month consulting fee. This was a factual determination that defendant's actual income was higher than what defendant reported to the court. The trial court also imputed income to defendant on the basis of his prior employment,¹ education, and physical and mental abilities. The trial court recognized that defendant's criminal conviction adversely affected defendant's income, but discounted this factor because the lowered income was the result of defendant's own actions. The crux of our difficulty in reviewing the trial court's ruling is that it did not specify how much higher it found defendant's actual income to be than what defendant claimed, or how much income it was imputing to defendant.²

In regards to the trial court's finding that defendant earned more than he reported, plaintiff presented testimony that defendant kept large amounts of cash at his residence and that he received checks on demand from a corporation that he formerly owned. In addition, defendant's lifestyle indicated an income far greater than the one he claimed he earned. Defendant lived in a luxury apartment and, in general, maintained the lifestyle that the parties enjoyed while they were married. Defendant's monthly expenses greatly exceeded his purported monthly income. Also, defendant testified that he still owned six corporations. The trial court reasonably deduced that defendant derives additional income that he did not report. Accordingly, we find that the trial court did not commit clear error by finding that defendant's net monthly income exceeds $2,500 a month. The trial court was in the best position to evaluate the credibility of the witnesses, and we will not second-guess the trial court's determination that defendant presented a less than credible accounting of his finances. See Draggoo v. Draggoo, 223 Mich.App. 415, 429, 566 N.W.2d 642 (1997).

Still, we determine that the trial court used an improper factor when imputing income to defendant. When deciding whether to impute income to an individual, a trial court must consider the following factors: employment experience, educational level, physical and mental disabilities, whether the parties' children reside in the individual's home, availability of employment, wage rates, special skills and training, and whether the individual can actually earn the imputed income. 2004 MCSF 2.10(E); Ghidotti, supra at 199, 586 N.W.2d 883. A trial court has the discretion to impute income when a parent voluntarily reduces or eliminates income or when it finds that the parent has a voluntarily unexercised ability to earn. 2004 MCSF 2.10(A) and (B); Olson v. Olson, 189 Mich.App. 620, 622, 473 N.W.2d 772 (1991).

Here, the trial court improperly relied on defendant's reduced income capacity that resulted from his past criminal activities to impute income to him. The court opined that it "[was] not inclined to reward Defendant for his actions by lowering his financial obligations to support his family." Although it is true that defendant's criminal actions were voluntary, there is no evidence that defendant committed any crimes with the intent to reduce his income. Indeed, given the nature of the crimes, it could be inferred that defendant was attempting to increase his income. Defendant's criminal conviction bars him from earning a living in politics, at least now, because he was forced to resign from his most recent elected position. Defendant's resignation resulted in an involuntary reduction in his income. Although it is true...