WENDY ANN PIERCE V NORMAN ALAN SILVERMAN
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STATE OF MICHIGAN
COURT OF APPEALS
WENDY ANN PIERCE,
UNPUBLISHED
May 29, 2001
Plaintiff-Appellee/
Cross-Appellant,
v
No. 222216
Oakland Circuit Court
Family Division
LC No. 98-614817-DP
NORMAN ALAN SILVERMAN,
Defendant-Appellant/
Cross-Appellee.
Before: K. F. Kelly, P.J., and O’Connell and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right, and plaintiff cross-appeals as of right from the trial court’s
order in this paternity action. While both parties challenge the trial court’s child support award,
defendant also challenges the trial court’s award of attorney fees, and plaintiff argues that the
trial court erred in not ordering defendant to reimburse her for lost wages associated with her
pregnancy. We reverse in part, affirm in part, and remand for proceedings consistent with this
opinion.
The parties’ minor child was born on July 31, 1998.1 Because defendant conceded
paternity, child support was the primary contested issue at trial. After hearing testimony from
plaintiff, the trial court issued a twelve-page written opinion ordering defendant to pay
combined2 weekly child support in the amount of $875.84. This amount reflected the trial
court’s determination that defendant pay $500 a week in child support, and $375.84 a week to
compensate plaintiff for child-care expenses. On appeal, defendant contends that the $875.84
1
The record reveals that plaintiff and defendant were involved in a four-year relationship before
the birth of the child, but were never married. A review of the record also demonstrates that
defendant has chosen not to have any part in raising the child.
2
See Thompson v Merritt, 192 Mich App 412, 419; 481 NW2d 735 (1991); see also MCL
722.717(6); MSA 25.497(6) (“For the purposes of [the Paternity Act], “support” may include . . .
child care expenses . . . .”).
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combined weekly award of child support was excessive. In contrast, plaintiff asserts that the trial
court erred in deviating from the amount set forth in the Michigan Child Support Formula
Manual when determining child support.3
We review a trial court’s child support award for an abuse of discretion. Phinisee v
Rogers, 229 Mich App 547, 558; 582 NW2d 852 (1998); Calley v Calley, 197 Mich App 380,
382; 496 NW2d 305 (1992). The party appealing a child support award bears the burden of
establishing that the trial court made a mistake. Id. We will not reverse a trial court’s child
support award unless we are convinced that the trial court erred. Good v Armstrong, 218 Mich
App 1, 4; 554 NW2d 14 (1996).
Child support awards in paternity actions are governed by MCL 772.717(3); MSA
25.497(3), which provides:
Except as otherwise provided in this section, the court shall order support
in an amount determined by application of the child support formula developed by
the state friend of the court bureau. The court may enter an order that deviates
from the formula if the court determines from the facts of the case that application
of the child support formula would be unjust or inappropriate and sets forth in
writing or on the record all of the following:
(a) The support amount determined by application of the child support
formula.
(b) How the support order deviates from the child support formula.
(c) The value of property, or other support awarded instead of the payment
of child support, if applicable.
(d) The reasons why application of the child support formula would be
unjust or inappropriate in the case.
As our Supreme Court observed in Ghidotti v Barber, 459 Mich 189, 200; 586 NW2d
883 (1998), a trial court may not deviate from the child support formula unless it determines that
circumstances exist that render compliance with the formula “unjust or inappropriate.” On
appeal, plaintiff asserts that the trial court’s downward deviation from the child support formula
warrants reversal because it was based on consideration of the disparity between the parties’
income. In support of her claim plaintiff cites our Supreme Court’s recent decision in Burba v
Burba (After Remand), 461 Mich 637; 610 NW2d 873 (2000).
In Burba, supra, our Supreme Court had occasion to consider the statutory requirements
3
According to the record, the child support formula provided for child support in the amount of
$682.00 a week.
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of MCL 552.17; MSA 25.974 in the context of a trial court’s modification of child support. Id. at
640. In Burba, supra, the plaintiff argued that income disparity between the parties did not
render application of the child support formula unjust or inappropriate to the extent that the trial
court could justify deviating from the formula. Id. at 646. The Burba Court agreed, observing
that the parties’ incomes “are accounted for when child support levels are set.” Id. at 648.
Moreover, the Court, speaking through Justice Cavanagh, opined:
An interpretation of [MCL 552.17; MSA 25.97] that considers income
disparity as a factor rendering the formula unjust or inappropriate, justifying
deviation from the formula, is repugnant to the Legislature’s intent that income be
dealt with as it is dealt with by the formula. Further, a “double-dipping” into
income would occur were income disparity an appropriate basis for deviating
from the formula because income would be a factor when the support level was
initially set by the formula, and then again when a court deviates from the formula
because of income. [Id. at 648-649 (footnote omitted).]
Similarly, a close examination of the trial court’s well-reasoned opinion in this case
reveals that it decided to deviate from the child support formula based on factors that are already
accounted for in the formula.5 Because we recognize that the respected judge prepared his
decision without the benefit of the Supreme Court’s reasoning in Burba, supra,6 we remand to
allow the court the opportunity to reconsider its decision.
Similarly, we reject defendant’s contention that the trial court’s child support award
regarding child-care expenses was an abuse of discretion.7 We review a trial court’s findings of
fact involving child support for clear error. Kosch v Kosch, 233 Mich App 346, 350; 592 NW2d
434 (1999). The trial court found that because of plaintiff’s erratic work schedule, she was
unable to place the parties’ child in conventional day care, and instead was required to have
family members care for the child at the rate of $9 an hour. Under these circumstances, the trial
court’s support award relating to child-care expenses was not an abuse of discretion.8
4
MCL 552.17; MSA 25.97 contains identical language to § 7 of the Paternity Act, MCL 772.711
et seq.; MSA 25.491 et seq.
5
Specifically, the learned trial court concluded that consideration of plaintiff’s ability to pay and
the needs of the child warranted deviation from the child support formula. With due deference to
our colleague, we note that in Burba, supra, our Supreme Court observed that (1) a child’s needs
and (2) the actual resources of each parent are accounted for in the child support formula. See
Burba, supra at 648; see also MCL 552.519(3)(vi); MSA 25.176(19)(3)(vi).
6
In fact, the Supreme Court’s decision in Burba, supra, was released almost one year after the
trial court issued its opinion in the instant case.
7
As a panel of this Court observed in Thompson, supra at 419-420, child-care costs are to be
added to the general award of child support allowed under the child support formula.
8
Likewise, we reject defendant’s claim that the $500 in child support awarded by the trial court
was “excessive,” where this amount was substantially lower than the amount prescribed by the
child support formula.
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Defendant also argues that the trial court erred in awarding $10,000 in attorney fees to
plaintiff. We disagree.
A trial court’s award of attorney fees is reviewed for an abuse of discretion. Featherston
v Steinhoff, 226 Mich App 584, 592; 575 NW2d 6 (1997). Attorney fees are available under the
Paternity Act “if they are necessary to enable an adverse party to carry on or defend the action.”
Thompson v Merritt, 192 Mich App 412, 423; 481 NW2d 735 (1992), citing Bessmertnaja v
Schwager, 191 Mich App 151, 158; 477 NW2d 126 (1991). The trial court found that an award
of attorney fees was necessary to enable plaintiff to pursue her paternity action against defendant.
Specifically, plaintiff testified that she lost over $6000 in wages before the birth of the
parties’ child and had to borrow money from her father to pay her attorney’s retainer. At the time
of trial, plaintiff owed additional fees to her attorney. The trial court also found plaintiff’s
attorney had submitted appropriate documentation supporting plaintiff’s claim. On this record,
we are unable to conclude that the trial court’s findings were clearly erroneous. Consequently,
the trial court did not abuse its discretion in awarding attorney fees.
On cross-appeal, plaintiff complains that the trial court abused its discretion by declining
to order defendant to pay lost wages she incurred because of her pregnancy. In support of her
argument, plaintiff directs our attention to MCL 722.712(1); MSA 25.492(1), which provides
that in a paternity action, “[t]he father is liable to pay the expenses of the mother’s confinement,
and is also liable to pay expenses in connection with her pregnancy as the court in its discretion
may deem proper.” [Emphasis supplied].9 During trial, plaintiff testified that she incurred
$6,616.52 in lost wages when she missed three weeks of work as a result of complications
relating to her pregnancy. Plaintiff maintains that her lost wages represent “expenses in
connection with her pregnancy” that defendant should pay pursuant to MCL 722.712(1); MSA
25.492(1).
Plaintiff has failed to cite any authority to support her assertion that lost wages incurred
because of pregnancy are compensable under MCL 722.712(1); MSA 25.492(1). To the extent
that plaintiff has announced her position and left it for this Court to search for authority to sustain
or reject her argument, she has abandoned the issue on appeal. Caldwell v Chapman, 240 Mich
App 124, 132-133; 610 NW2d 264 (2000); Opland v Kiesgan, 234 Mich App 352, 359; 594
NW2d 505 (1999). In any event, we are not persuaded that lost wages associated with
complications of pregnancy are “expenses in connection with [plaintiff’s] pregnancy” as
contemplated by § 2 of the Paternity Act.
9
Similarly, MCL 722.717(2); MSA 25.497(2), provides in pertinent part:
In addition to providing for the support of the child, the order [of filiation]
shall also provide for the payment of the necessary expenses incurred by or for the
mother in connection with her confinement . . . and for the expenses in connection
with the pregnancy of the mother or of the proceedings as the court considers
proper.
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When we interpret a statute, we strive to give effect to the Legislature’s intent. In re MCI
Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 194 (1999). We must first
consider the language of the statute itself. Id. If the language is clear and unambiguous, judicial
construction is neither required nor permitted. Sington v Chrysler Corp, ___ Mich App ___; ___
NW2d ___ (Docket No. 225847, issued 5/1/01), slip op, 8. Merely because a term in not defined
in the statute does not render it ambiguous to the extent that judicial construction is permitted.
Marcelle v Taubman, 224 Mich App 215, 219; 568 NW2d 393 (1997).
Because the term “expense” is not defined in the Paternity Act, we turn to the ordinary
dictionary meaning of the term. Washburn v Michailoff, 240 Mich 669, 676-677; 613 NW2d 405
(2000). Black’s Law Dictionary, (6th ed), p 401, defines an expense as “[t]hat which is
expended, laid out or consumed” and “[a]n outlay, charge, cost, price.” From this definition, it is
clear that lost wages incurred because of complications in plaintiff’s pregnancy are not “expenses
in connection with . . . pregnancy” within the meaning of § 2 of the Paternity Act. Our
conclusion is consonant with the well-settled purpose10 of the Paternity Act, which is to “provide
for the support of illegimate children.” Pizana v Jones, 127 Mich App 123, 126; 339 NW2d
1(1983) (emphasis supplied), citing Smith v Robbins, 91 Mich App 284, 289; 283 NW2d 725
(1979); see also Mitchell v Maurer, 328 Mich 233, 235; 43 NW2d 921 (1950).
We reverse in part, affirm in part, and remand to the trial court for proceedings consistent
with this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Peter D. O’Connell
/s/ Jessica R. Cooper
10
When interpreting a statute, we are mindful of the “purpose and the object sought to be
accomplished by the statute.” Robinson v Shatterproof Glass Corp, 238 Mich App 374, 377; 605
NW2d 677 (1999), citing Gross v General Motors Corp, 448 Mich 147, 158-159; 528 NW2d
707 (1995).
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