JAMES D MOONEY V MURIEL J MOONEY
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES D. MOONEY,
UNPUBLISHED
November 13, 2003
Plaintiff/Counter-DefendantAppellee,
v
No. 235187
Washtenaw Circuit Court
LC No. 00-000233-DM
MURIEL J. MOONEY,
Defendant/Counter-Plaintiff-
Appellant.
Before: Markey, P.J., and Saad and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right the amounts of child and spousal support awarded under the
parties’ judgment of divorce. We affirm in part, reverse in part, and remand for proceedings
consistent with this opinion.
Defendant contends that the amounts of child support and spousal support awarded by the
trial court are erroneous, because the trial court erred in calculating the parties’ respective
incomes. Defendant asserts that the plaintiff’s income was erroneously calculated because the
trial court did not base its determination of plaintiff’s income on an average of his previous four
or five income tax returns. We disagree. This Court reviews a trial court’s findings of fact for
clear error. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997). A trial
court’s findings are clearly erroneous when, after conducting a thorough review of the record,
this Court is convinced that the trial court made a mistake. Draggoo, supra at 429. If the court’s
factual findings are not clearly erroneous, this Court must determine whether the court’s
dispositional ruling was fair and equitable in light of those facts. Sparks v Sparks, 440 Mich 141,
151-152; 485 NW2d 893 (1992).
The Michigan Child Support Formula Manual (West, 2001) (MCSF Manual) specifically
indicates that “[n]et income should be determined from actual tax returns whenever possible.”
MCSF Manual, supra, § II(H), p 7. Averages of a party’s yearly income are to be used only
when a party’s income fluctuates “considerabl[y].” MCSF Manual, supra, § II(A), p 3. Based
on evidence of plaintiff’s regular and overtime earnings and evidence that plaintiff’s employer
discontinued giving annual bonuses, the trial court properly valued plaintiff’s income at $90,825
for purposes of determining child support.
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Defendant next asserts that the trial court erred in imputing to her an income that was
both unrealistic and inconsistent with her stated career goals. We agree. A minor child’s parents
have a statutory duty to support that child. MCL 722.3; Macomb Co Dep’t of Social Services v
Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002). Unless the result would be unjust
or inappropriate given a particular situation, a trial court must follow the formula outlined in the
MCSF Manual to determine each parent’s respective contribution toward a child’s support.
Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 225; 663 NW2d 481 (2003). The formula
considers the needs of the child and the actual resources of each parent. MCL 552.519(3)(a)(vi);
Shinkle, supra at 225.
The MCSF Manual expressly indicates that imputation may be appropriate “where there
is voluntary unexercised ability to earn.” MCSF Manual, supra, § II(I), p 8. Thus, a parent’s
“actual resources” may include that parent’s unexercised ability to earn an income. Shinkle,
supra at 225, citing Ghidotti v Barber, 459 Mich 189, 198; 586 NW2d 883 (1998). Precisely
because imputation of income based on a party’s unexercised earning capacity is speculative, a
court must evaluate a number of factors to determine the proper amount of income to impute.
Ghidotti, supra at 198. These factors include the party’s employment history, education and
skills, available work opportunities, diligence in trying to find work, the party’s personal history,
assets, health and physical abilities, and availability for work. Id. A trial court’s consideration
of these factors advances the presumption that the court’s imputation of income “is based on an
actual ability and likelihood of earning the imputed income.” Ghidotti, supra at 199. The MCSF
Manual also instructs a court to make eight specific inquiries when determining whether and how
much income to impute: (1) previous employment experience; (2) level of education; (3)
physical and mental disabilities; (4) custodial relationship to the parties’ children and its impact
on the parties’ earnings; (5) availability of employment in the area; (6) the prevailing wage rates
in the area; (7) any special skills or training; or (8) any evidence supporting the party’s ability to
earn the imputed income. MCSF Manual, supra, § II(I), p 8.
We do not disagree with the trial court’s observation that it may be possible for defendant
to obtain recertification as a teacher in a short period of time. Nevertheless, the trial court failed
to account for the fact that defendant was unemployed throughout the marriage with plaintiff’s
agreement and consent, that she had minimal work experience and no specific skills or training
that are immediately marketable in the workforce, and that defendant’s educational training was
significantly dated and could impact her earnings as she returned to the workforce. In addition,
as noted infra in more detail, the testimony upon which the trial court relied to establish a level
of imputed income to defendant was speculative. We therefore remand for more detailed
findings as required by the MCSF Manual, consistent with our disposition on the remaining
issues.
First, we find that the trial court’s order that income be immediately imputed to defendant
was unfair and inequitable. As we noted earlier, defendant was unemployed throughout the
marriage with plaintiff’s agreement and consent. There was also no evidence that plaintiff had
requested defendant to begin working prior to the time the divorce complaint was filed, and no
evidence that any such opportunity was available.
Plaintiff testified at trial that he desired that defendant find employment after the divorce
to support herself and assist in the support of the minor children. The record does not establish,
however, that plaintiff objected to defendant remaining unemployed and continuing to home
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school their eighth-grade daughter while the divorce action was pending. In fact, the entry of a
consent order establishing child and spousal support that did not require defendant to seek or
obtain employment belies any suggestion that plaintiff objected to defendant’s unemployed
status. On this record, we find that it was inequitable as a matter of law for the trial court to
impute income to defendant from November 15, 2000 through August 2001.1 Clearly, defendant
did not voluntarily reduce her income as a result of the divorce proceedings as she had no
income to reduce. See Rohloff v Rohloff, 161 Mich App 766, 744-775; 411 NW2d 484 (1987) (a
trial court may order child support where a party voluntarily reduces income and the trial court
concludes that the party has the ability to earn an income). Rather, defendant maintained the
status quo during the divorce proceedings as agreed to by the parties.
We further find that the trial court’s order that income of $26,600 per year be imputed to
defendant commencing August 1, 2001 is unfair and inequitable. The trial court determined that
defendant’s plans to attend Ave Maria School of Law were vague, and therefore disregarded her
employment preference. While we do not disturb this finding, nevertheless, the trial court’s
conclusion that defendant was able to obtain employment as a school teacher at a salary of
$26,600 is not supported by the evidence. Defendant’s sole employment experience consisted of
only one year of classroom teaching many years prior to trial. Similarly, defendant’s degree was
acquired many years prior to trial, and defendant would need to complete ten credit hours of
course work to obtain a current teacher’s certification.
The testimony that “independent” schools would hire non certified teachers for positions
and that jobs were available was conclusory and speculative, as there was no testimony that
defendant specifically was qualified (with one year of teaching experience many years before)
and eligible to be hired for a specific position, or to teach a specific subject or subjects, by
education and training, that defendant could compete against prospective teachers with more
recent work experience or education, or that there was no such competition for the teaching
positions for which defendant would qualify. Moreover, there was no testimony whether, if
required to pursue a teaching career, defendant’s efforts to obtain recertification would be
impeded if she were to be hired to teach full time at an “independent” school that did not require
certification. On remand, the trial court must make more detailed findings to support any order
imputing income to defendant commencing August 1, 2001. Defendant’s efforts to obtain or
prepare for employment subsequent to entry of judgment shall be relevant to any determination
as to whether imputation of income is warranted.
Defendant next contends that the amounts of child and spousal support awarded were
inadequate under the circumstances. We agree. Unless the trial court finds the result unjust or
inappropriate, the amount of child support awarded must be calculated according to the
guidelines set forth in the MCSF Manual; whether to award child support is not discretionary.
MCL 552.16(2); MCL 722.717(3); Burba v Burba (After Remand), 461 Mich 637, 643; 610
NW2d 873 (2000) (referring to MCL 552.17[2], which addresses modification of existing
1
As a result of the income imputed to defendant, the May 18, 2001 judgment of divorce orders a
credit to plaintiff for child support and spousal support paid from November 15, 2000 until entry
of the judgment, pursuant to a Consent Order entered by the trial court on October 27, 2000.
This credit is also inequitable.
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orders). This Court may reverse the trial court’s decision only if, after reviewing all the
evidence, the Court is firmly convinced that a mistake was made. Kosch v Kosch, 233 Mich App
346, 350; 592 NW2d 434 (1999).
The trial court has discretion whether to award spousal support in a divorce proceeding.
Demman v Demman, 195 Mich App 109, 110; 489 NW2d 161 (1992); Torakis v Torakis, 194
Mich App 201, 204; 486 NW2d 107 (1992). The primary goal of spousal support is to distribute
the incomes and needs of the parties in a manner that will not impoverish either party. Magee v
Magee, 218 Mich App 158, 162; 553 NW2d 363 (1996). A trial court’s spousal support order
should not be modified absent this Court’s firm conviction it would have reached a different
result than did the trial court. Torakis, supra at 204. Factors relevant to the court’s decision
regarding spousal support include: (1) the length of the marriage; (2) the parties’ ability to pay;
(3) the past conduct or fault of the parties; (4) the age and health of the parties; (5) the parties’
ability to work and their respective earning capacities; and (6) all other circumstances relevant to
the court’s disposition. Sparks, supra at 149-150.
Here, the trial court determined that spousal support was warranted and we agree.
However, because the trial court clearly erred by imputing prejudgment income to defendant,
and because the amount of income imputed post-judgment to the defendant by the trial court is
not supported by the record, it is clear that the spousal support award of $7,000.00 annually to
defendant is woefully inadequate. Moreover, the trial court clearly erred when it declared that
“[t]his spousal support is specifically non-modifiable as to amount, term and duration.” When a
trial court renders an award of spousal support in a judgment of divorce, it retains continuing
jurisdiction over the issue of spousal support subject to a petition by either party pursuant to a
showing of changed circumstances. MCL 552.28; Rickner v Frederick, 459 Mich 371, 378-379;
590 NW2d 288 (1999). Any declaration that spousal support is non-modifiable with respect to
amount or duration “no matter what change of circumstances occurs . . . in the future, constitutes
an abuse of discretion.” McCallister v McCallister, 101 Mich App 543, 551; 300 NW2d 629
(1980). On remand, the trial court may not so limit its award.
Additionally, the amount of child support awarded by the trial court in reliance on the
parties erroneously calculated incomes is inequitable. On remand, after a new determination of
the incomes of the parties, the trial court shall also determine the corresponding child support in
a manner consistent with this opinion.
Defendant next argues that plaintiff was judicially estopped from relying on a Friend of
the Court (FOC) referee report to obtain a consent interim order regarding support, and objecting
to its admission into evidence during the trial. Defendant also contends the trial court erred by
denying admission of the report. We disagree. A trial court may, but is not required to, consider
the report and recommendations made by a FOC referee. Duperon v Duperon, 175 Mich App
77, 79; 437 NW2d 318 (1989), citing Bowler v Bowler, 351 Mich 398, 405; 88 NW2d 505
(1958). Unless stipulated to by the parties, the FOC report is not admissible evidence. Truitt v
Truitt, 172 Mich App 38, 42; 431 NW2d 454 (1988); Duperon, supra at 79.
Defendant next contends the trial court abused its discretion by denying her motion for
reconsideration and to reopen proofs and schedule an evidentiary hearing. In light of our
disposition of defendant’s claims on defendant’s imputed income, child support, and spousal
support, we need not address these claims.
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Lastly, defendant asserts the trial court abused its discretion by failing to award her
attorney fees. A party may request attorney fees where that party is unable to bear the expense
of the action and the other party is able to pay. MCR 3.206(C)(2); Hanaway v Hanaway, 208
Mich App 278, 298; 527 NW2d 792 (1995). If the court’s award of spousal support and property
leaves the parties with comparable assets and incomes, an award of attorney fees is not
appropriate. Id. at 299. The trial court made no findings on whether defendant was entitled to an
award of attorney fees. Because the trial court will make new determinations on the income of
the parties, child support, and spousal support on remand, we instruct that the trial court also
determine whether defendant is entitled to attorney fees in light of these new findings.
Affirmed in part, reversed in part, and remanded for further findings consistent with this
opinion. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Henry William Saad
/s/ Kurtis T. Wilder
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