PAMELA MARGARET GEHRKE V ROBERT ERNEST GEHRKEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PAMELA MARGARET GEHRKE,
May 10, 2005
Livingston Circuit Court
LC No. 98-27044-DM
ROBERT ERNEST GEHRKE,
Official Reported Version
Before: Fort Hood, P.J., and Meter and Schuette, JJ.
Defendant appeals by grant of a delayed application for leave to appeal a child support
order, which adopted the child support recommendation of a friend of the court hearing referee.
Defendant moved to have this order set aside. His motion was denied. We affirm.
The marriage of plaintiff Pamela M. Gehrke and defendant Robert E. Gehrke was
dissolved by entry of a consent judgment of divorce on November 12, 1999. Plaintiff and
defendant were awarded joint physical custody of their son, Gregory Allen Gehrke, born July 7,
1988. In accordance with the court's order, Gregory resides with plaintiff and defendant in
alternating weeks. Each parent is responsible for "routine day-to-day decisions" regarding
Gregory's general welfare during the time Gregory is in that parent's physical custody. Holidays,
school breaks, and Gregory's birthday are alternated between parents. Plaintiff has her birthday
and Mother's Day with Gregory, while defendant has his birthday and Father's Day. Each parent
has one two-week block during the summer for vacation with Gregory. Plaintiff was awarded
sole legal custody of Gregory.
Under the terms of the consent judgment, plaintiff was also awarded family support in the
amount of $310 a week "until Plaintiff 's death, remarriage, cohabitation with an unrelated male,
or for a period of sixty months from the date of commencement, whichever first occurs." Of this
$310, $150 was child support and $160 was spousal support.
On May 16, 2002, the court modified the divorce judgment to reduce defendant's family
support obligation to $250 a week. Of this $250, $150 was child support and $100 was spousal
support. Defendant sought this modification because he experienced a decrease in wages.
On August 2, 2002, defendant moved for application of the shared economic
responsibility formula (SERF), reduction in family support, and application of a parenting time
abatement credit against his arrearage because his "financial circumstances ha[d] become
increasingly dire . . . ." Defendant argued that the SERF should be applied and that he should
receive parenting time abatement credits because his son lives with him fifty percent of the time.
In her answer, plaintiff asserted that the SERF did not apply because the Michigan Child Support
Formula prohibits the application of the SERF except (1) concurrently with an initial custody or
parenting time determination or (2) to modifications of custody or parenting time on the basis of
a change of circumstances.
On September 12, 2002, hearing referee Kathleen Oemke conducted a hearing on
defendant's motion and subsequently made a recommendation. That recommendation, which
was adopted by the court, reduced defendant's child support obligation to $72 a week.
On November 27, 2002, referee Oemke conducted a hearing on support issues.
Defendant argued that he was entitled to application of the SERF under Burba v Burba (After
Remand), 461 Mich 637; 610 NW2d 873 (2000). In her report and recommendation dated
December 4, 2002, referee Oemke recommended that defendant pay child support of $414.92 a
month. She distinguished the present case from Burba, and found that defendant was not entitled
to application of the SERF. She opined:
[Burba] is distinguished from the case at bar due to the Court having made
a determination at the outset that shared economic responsibility would not be
applied. The court gave the Plaintiff sole legal custody and family support was
agreed. It is clear that family support was based on regular support formula. The
Court in Burba was talking about departure from the guidelines and the reasons
the court might order support at a rate other than at the guideline amount and the
factors for departure from the guidelines. The recommended amount varies from
the guidelines because it would be inequitable for either party to follow the strict
guidelines. The regular support formula usually has an abatement when the child
spends 6 overnights or more and no such abatement can be afforded in this case as
the custody arrangement is a week on and a week off. The shared economic
responsibility formula is not equitable due to the added responsibility of the legal
custody for the Plaintiff and her prior reliance on the bargained for agreement of
the parties. Application of the strict guidelines would be unjust or inappropriate
for the reasons stated.
This report and recommendation was adopted by the court in an order dated January 5, 2003.
Defendant moved to set aside the January 5, 2003, order, arguing that the order was
entered without a hearing on defendant's objections to the referee's recommended order because
of a scrivener's error in the title of defendant's objections. A hearing was held on January 30,
2003. In an oral ruling, the court denied defendant's motion and reaffirmed its earlier decision
that the SERF did not apply in this case, explaining in part:
I'm thinking it was back in November that I read in my notes that I said
very clearly in that order—current law the way I understand it you don't start
applying shared economic responsibility formula, child support formula unless
you do a change of custody or parenting time. It does have to do with a change of
circumstances regarding his financial situation. I know that seems strange. But I
believe that's the law as it stands now. And part of the reason for it is when you
do your judgments of divorce all of this is considered. And uh, it's all part of the
big package, one little bit, one little item of child support or alimony and pluck it
out and say you know, and think that you can change that without changing
everything. So often these things affect other things, the property settlement, who
gets the exemption for the tax returns, et cetera, et cetera. So that's my
understanding of the law. And I've already made this decision. I think it's the law
of the case uh, that shared economic responsibility does not um, does not apply
and I think you would lose your motion any ways. I don't see any reason to set it
The court effectuated its oral ruling by an ordered entered January 30, 2003.
II. STANDARD OF REVIEW
This Court reviews child support orders for a clear abuse of discretion. Burba, supra at
647. Further, whether defendant is entitled to application of the SERF or a retroactive parenting
time abatement is a question of law that we review de novo. Burba, supra at 647.
Defendant argues that the trial court erred by its failure to apply the SERF to its
computation of defendant's child support obligation or, in the alternative, to grant defendant a
retroactive parenting time abatement because defendant's son spends one-half of all overnight
periods with defendant. We disagree.
The trial court did not err by failing to apply the SERF or to grant defendant a retroactive
parenting time abatement. Defendant is not entitled to application of the SERF because the child
support order he appeals was not issued concurrently with an initial custody or parenting time
determination or with a modification of custody or parenting time on the basis of changed
circumstances. Defendant is not entitled to a parenting time abatement because he is a custodial
parent. Abatements are given only to noncustodial parents.
MCL 552.605(2) provides:
[T]he 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 as required in section 19 of the friend of the court act, MCL 552.519. 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 . . . .
If the court determines that application of the child support formula would be unjust or
inappropriate, the court must set forth its reasons in writing or on the record. MCL
552.605(2)(d). Thus, a court must apply the SERF if it is applicable, or set forth its reasons for
deciding not to apply it.
The SERF is to be used in a determination of a parent's child support obligation when a
child spends more than 128 nights a year with that parent. Defendant's son Gregory spends onehalf of his overnight periods each year with defendant; therefore, defendant argues he is entitled
to application of the SERF. The trial court, however, was correct in determining that the SERF
was inapplicable to the present case because "[t]he economic sharing formula should only be
applied to support orders entered concurrent with an initial custody/parenting time determination
or to modifications of custody/parenting time based upon changed circumstances." 2001 MCSF
IV(B), p 26. This Court is obligated to ensure compliance with the plain language of the manual.
See Burba, supra at 643-651. The child support order from which defendant appeals was neither
entered concurrently with the initial custody or parenting time determination nor with a
modification of custody or parenting time; therefore, the SERF cannot be applied to a
determination of defendant's child support obligation.
However, defendant argues that our Supreme Court's decision in Burba requires a
different result. In Burba, the parties' consent judgment of divorce awarded the parties joint
legal and physical custody of their children and required the plaintiff to pay child support of
$500 a month. Under the terms of the consent judgment, the parties shared equal time with the
children. Later, the defendant filed a petition pro se to modify the child support order. In
response to the petition, a hearing referee made a recommendation to modify the child support
using the sole custody calculation, rather than the SERF, which the Court called the joint legal
and physical custody calculation. Burba, supra at 639-640. The referee had recommended
deviation from the SERF because of the "huge disparity in income" between the parties. Id. at
641. The plaintiff argued that income disparity was not a reason to deviate from the SERF, and
appealed the trial court's decision to adopt the referee's recommendation. Id. at 641-642. This
Court affirmed the trial court's decision, ruling that the trial court set forth sufficient reasons to
deviate on the record. The plaintiff appealed to our Supreme Court. Id. at 642.
Our Supreme Court stated that the SERF "was applicable because the parties shared joint
physical and legal custody of the children." Id. at 640. The Court then addressed (1) whether the
trial court properly relied upon income disparity to deviate from the SERF and (2) whether the
judge complied with the statutory requirements for modifying the support order and deviating
from the formula. Id. at 642-651. During this discussion, the Court observed that "the
Washtenaw County [Friend of the Court] also made significant errors. As mentioned above, the
referee applied the sole custody calculations to this joint physical and legal custody scenario."
Id. at 649.
In Burba, as in the present case, the child support order being appealed was neither
entered concurrently with an initial custody or parenting time determination nor with a
modification of custody or parenting time, but that did not prevent our Supreme Court in Burba
from determining that the referee erred by using the sole custody calculation instead of the
SERF. Defendant argues that, under Burba, he is entitled to application of the SERF, even
though the child support order he appeals was neither entered concurrently with the initial
custody or parenting time determination nor with a modification of custody or parenting time.
Defendant's argument is certainly supported by the action of the Burba Court. Although the
Burba Court never expressly addressed the language of the SERF, its action does suggest that the
SERF's language is broad enough to justify its application to all subsequent modifications of
child support orders. However, because Burba did not expressly hold so, and, indeed, the
question was not before it, the trial court in this case remained obligated to follow the Michigan
Child Support Formula Manual. Compare Waltz v Wyse, 469 Mich 642, 653-654; 677 NW2d
813 (2004) (the plain statutory language controls over contrary language found in Supreme Court
dicta). Thus, it did not err by finding the SERF inapplicable to a determination of defendant's
child support obligation.
Next, the trial court did not err by denying defendant a retroactive parenting time
abatement. The parenting time abatement is given to noncustodial parents. See 2001 MCSF
IV(c), p 27; Burba, supra at 640 n 1. Defendant shares physical custody of his son with plaintiff;
he is not a noncustodial parent. Thus, he is not entitled to a parenting time abatement.
/s/ Karen Fort Hood
/s/ Patrick M. Meter
/s/ Bill Schuette