GEORGIA CAROL CARNEY V WILLIAM RILEY CARNEY
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STATE OF MICHIGAN
COURT OF APPEALS
GEORGIA CAROL CARNEY,
UNPUBLISHED
November 16, 1999
Plaintiff-Appellee,
v
No. 218073
Wayne Circuit Court
LC No. 97-700880 DM
WILLIAM RILEY CARNEY,
Defendant-Appellant.
Before: Talbot, P.J., and Neff and Saad, JJ.
PER CURIAM.
Defendant appeals as of right from an order modifying a judgment of divorce. We affirm in part
and remand for further proceedings.
I
First, defendant contends that the trial court erred in ordering a change in custody without first
determining the best interest factors of the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1)
et seq. We disagree. We review questions of law for clear error. Fletcher v Fletcher (After
Remand), 229 Mich App 19, 24; 581 NW2d 11 (1998).
The trial court accepted the parties’ stipulation as to the change in custody without making any
findings as to the best interests of the child. While a trial court is not bound by the parties’ stipulations
or agreements regarding child custody, the court is not precluded from accepting the parties’ agreement
and including it in the orders of the court. Dick v Dick, 210 Mich App 576, 584; 534 NW2d 185
(1995); Koron v Melendy, 207 Mich App 188, 191; 523 NW2d 870 (1994). Implicit in the trial
court’s acceptance of the parties’ custody arrangement is the court’s determination that the arrangement
is in the child’s best interest. Dick, supra at 584-585; Koron, supra at 191. Because the parties in
this matter were in agreement regarding custody of the minor child, the trial court was not required to
expressly articulate each of the best interest factors. See Dick, supra at 584-585; Koron, supra at
192. Defendant’s contention that he would not have entered into the agreement had he known that
plaintiff would renege on the proposed settlement is without merit. The record indicates that defendant
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knew plaintiff had no intention of following through with the proposed settlement before the agreement
regarding custody.
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II
Defendant next argues that the trial court erred in calculating child support. We review a trial
court’s award of child support for an abuse of discretion. Thames v Thames, 191 Mich App 299,
306; 477 NW2d 496 (1991).
The friend of the court (“FOC”) recommended that plaintiff pay defendant support in the
amount of $48 a week from August 22, 1997, the date of the judgment of divorce, to February 18,
1998, when plaintiff became unemployed. This recommendation coincided with the child support
formula amount, based on the parties’ 1997 income. Thereafter, the plaintiff was to pay $30 a week
support. Defendant objected to this determination, contending that support for 1998 should have been
based on the parties’ 1998 year-to-date income, which would result in weekly support of $65,
according to the FOC calculation. The referee did not give an explanation for his recommendation
other than merely stating: “Support, based on the income of the parties’ in 1997, should be $48 a
week.” Likewise, the trial court heard testimony on the parties’ income, but ultimately accepted the
FOC’s recommendation, without making specific findings.
A court shall order support in accordance with the child support formula unless its application
would be unjust or unfair. MCL 552.16(2); MSA 25.96(2); MCL 722.27(2); MSA 25.312(7)(2);
Ghidotti v Barber, 459 Mich 189, 200; 586 NW2d 883 (1998); Kosch v Kosch, 233 Mich App
346, 350; 592 NW2d 434 (1999). If a court deviates from the support formula, it must specify on the
record how the order deviates and the reasons why application of the formula is unjust or unfair. Id. It
is not apparent from the record whether the support order based on the parties 1997 income deviates
from the child support guidelines. We therefore remand for the trial court’s determination of whether
the calculation of child support was in accordance with the child support formula, and if not, the reason
for the deviation.1 Ghidotti, supra at 204.
III
Next, defendant argues that the trial court abused its discretion in failing to set aside the alimony
provision of the judgment of divorce based on mutual mistake or fraud. He contends that he was
entitled to relief from judgment pursuant to MCR 2.612. We disagree. We review a trial court’s denial
of a motion for relief from judgment for an abuse of discretion. Redding v Redding, 214 Mich App
639, 642-643; 543 NW2d 75 (1995).
Defendant contends that, either through mutual mistake or through plaintiff’s fraudulent
statements, the parties calculated alimony on the basis that defendant earned $50,000, although his
income was only $20,000. Defendant explains that he did not know how much money he made
because plaintiff handled the parties’ business accounting. However defendant signed joint tax returns
and had access to the same information as plaintiff. Because it appears that defendant was ignorant of
his income because of his own carelessness, relief from judgment pursuant to MCR 2.612(C)(1)(a) was
properly denied. Error warranting reversal must be that of the trial court and not one to which an
aggrieved party contributed by planned or neglectful omission of action on his part. Smith v Musgrove,
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372 Mich 329, 337; 125 NW2d 869 (1964); Detroit v Larned Associates, 199 Mich App 36, 38;
501 NW2d 189 (1993).
IV
Finally, defendant argues that the trial court abused its discretion in failing to grant his motion for
reconsideration based on the fact that plaintiff refused to care for the minor child. We disagree. We
review a trial court’s denial of a motion for reconsideration for an abuse of discretion. In re Beglinger
Trust, 221 Mich App 273, 279; 561 NW2d 130 (1997).
In order to successfully move for reconsideration, a party “must demonstrate a palpable error
by which the court and the parties have been misled and show that a different disposition of the motion
must result from correction of the error.” MCR 2.119(F). Defendant has not shown such error.
Defendant alleges that plaintiff must have been dishonest about her desire to provide proper care and
custody for their minor son, but there is no evidence to support that allegation. At the time of the
hearing, defendant admitted that the seventeen-year-old preferred to live with plaintiff. However, it
merely appears that a change in circumstances may have occurred since the hearing.
The trial court’s order is affirmed with regard to the change in custody and alimony. Regarding
the issue of child support, the case is remanded for the trial court’s determination of whether the support
order was in accordance with the support guidelines, and if not, the basis for the deviation. We do not
retain jurisdiction.
/s/ Michael J. Talbot
/s/ Janet T. Neff
/s/ Henry William Saad
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It appears that the trial court’s final support order directed plaintiff to pay $48 a week child support,
without a reduction to $30 a week, as recommended by the FOC. If so, the issue on remand is
whether the order was properly based on the parties’ income for 1997.
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