Stanaway v. Stanaway, Docket No. 25819
| Decision Date | 21 July 1976 |
| Docket Number | Docket No. 25819 |
| Parties | Garth STANAWAY, Plaintiff-Appellant, v. Susan J. STANAWAY, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Aaron Lowenstein, Negaunee, for plaintiff-appellant.
David M. Savu, Ishpeming, for defendant-appellee.
Before T. M. BURNS, P.J., and R. B. BURNS and V. J. BRENNAN, JJ.
This case involves a divorce action.
The judgment of divorce obligates plaintiff to pay 'child support for (the parties') minor child in an amount equal to six (6%) per cent of his adjusted gross income, as defined for federal income tax purposes, but not less than the sum of $165 monthly, * * *'. Plaintiff contends that such an unlimited 'escalator' clause with its provision for a possible annual lump sum payment beyond the enumerated child support amount constitutes an error of law. We agree.
Escalator clauses in child support judgments have been very rare. The only Michigan decision construing a similar provision is Anneberg v. Anneberg, 367 Mich. 458, 116 N.W.2d 794 (1962). In that case (p. 460, 116 N.W.2d p. 795), the appellant was obligated to pay 'an amount equal to 39.7% Of defendant's gross earnings, provided that such sum shall not exceed $250 per month per child'. Not finding a 'clear abuse of discretion', the Supreme Court affirmed.
Anneberg can only be said to sanction child support based on a certain percentage of the paying parent's income Up to some fixed amount. This 'up to' proviso is totally different from the 'more than, without limit' situation presented herein. The former is not an escalator clause at all; it is, rather, a fixed amount, a maximum, from which the paying parent may be Relieved of a portion annually. Anneberg is not controlling.
M.C.L.A. § 552.17; M.S.A. § 25.97 reads as follows:
'The court may, from time to time afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents, and the benefit of the children shall require.'
An escalator clause violates both the spirit and the letter of this statute. First, it abrogates the requirement for petition by allowing the continual (here, yearly) alteration of the judgment as to amount of support. Second, and more important, it focuses exclusively on the 'circumstances' of the paying parent while ignoring the complex of factors relating to the 'benefit of the children' and their changing or unchanging needs. See Stern v. Stern, 327 Mich. 567, 42 N.W.2d 738 (1950), Herpolsheimer v. Herpolsheimer, 318 Mich. 200, 27 N.W.2d 530 (1947), Davis v. Davis, 8 Mich.App. 104, 153 N.W.2d 879 (1967).
The circuit judge in this case set a base figure of $165 per month for support of the parties' now three-year-old son. This is presumably the amount that the judge thought necessary for the child's support. We expressly affirm this amount of support. The parties retain the right, under statute and court rule, to seek future modification of support.
We strike the 6% Escalator clause as beyond the circuit judge's scope of discretion. In so doing, we...
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