CHRISTI FORSBERG V KENNETH FORSBERG
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTI FORSBERG,
UNPUBLISHED
December 18, 2003
Plaintiff-Appellant,
v
No. 240699
Ingham Circuit Court
LC No. 97-093027-DM
KENNETH FORSBERG,
Defendant-Appellee.
Before: Talbot, P.J., and Owens and Fort Hood, JJ.
PER CURIAM.
Plaintiff appeals by leave granted from the trial court’s order increasing defendant’s child
support obligation and denying her request for attorney fees, repair of the marital home
driveway, and creation of a trust. We affirm in part, reverse in part, and remand for proceedings
consistent with this opinion.
After a lengthy marriage, the parties divorced in 1997. The judgment of divorce provided
that defendant would pay $350 per week in child support for the maintenance of the parties’ four
minor children who resided with plaintiff.1 Non-modifiable alimony in gross was also awarded
to plaintiff in the amount of $650 per week for a five-year period. Defendant was awarded all
rights, title, and interest in any business entity, free and clear of any claim made by plaintiff.
Lastly, the driveway of the marital home2 was to be fixed within ninety days of entry of the
judgment “if possible,” based on the recommendation of a neutral contractor.
Plaintiff filed a motion to increase child support, alleging that defendant’s income had
substantially increased since the entry of the judgment of divorce. Plaintiff also requested repair
of the driveway in accordance with the terms of the divorce judgment, payment of medical
expenses, payment of attorney fees, and creation of a trust in favor of the minor children.
1
The judgment of divorce further provided that this child support amount “shall not” be
modifiable for any reason, absent a change in physical custody, for a five-year period. The
motion for modification of child support was raised prior to the expiration of this five-year
period, however, the parties do not raise this provision as an issue on appeal.
2
The marital home, free of encumbrances, was awarded to plaintiff in the judgment of divorce.
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Defendant opposed plaintiff’s request for relief. Principally, defendant alleged that any increase
in income reflected in his tax returns was actually a one-time capital gain from the sale of
corporate assets that had been awarded to him in the judgment of divorce. A two-day
evidentiary hearing was conducted. After hearing testimony from plaintiff and expert testimony
regarding defendant’s corporate entities, the trial court3 agreed with defendant, but modified the
child support award based on a four-year average of defendant’s wages, interest income, and
corporation income. The trial court denied all other requests for relief by plaintiff.
Plaintiff first alleges that the trial court erred in refusing to include the capital gain as
“income” in determining defendant’s child support obligation. We disagree. The decision to
modify a child support order rests in the sound discretion of the trial court, and the burden is on
the party appealing the order to show a clear abuse of discretion. Kosch v Kosch, 233 Mich App
346, 350; 592 NW2d 434 (1999). While factual findings are reviewed for clear error and the
ultimate decision is reviewed de novo, reversal is not appropriate unless this Court is convinced
that it would have reached a different result. Id. Review of the record reveals that defendant’s
expert testified that the capital gain, realized because of the sale of a corporate asset, essentially
“passed through” because the corporation retained the benefit and merely paid defendant the
necessary taxes incurred from the sale. To contradict this assertion, plaintiff and her expert cited
to the amount of money and number of transactions in defendant’s bank accounts. The trial
court concluded that it was inappropriate to include the capital gain because it involved a onetime transaction based on the sale of an asset that defendant was awarded in the judgment of
divorce. The trial court increased the child support obligation based on defendant’s income,
interest income, and corporation income. We cannot conclude that the trial court’s factual
findings were clearly erroneous, and the increase in the child support obligation, excluding the
capital gain, was not an abuse of discretion. Kosch, supra.
Plaintiff next alleges that the trial court erred in failing to award attorney fees based on
her inability to pay and defendant’s unreasonableness. We conclude that remand for
consideration of this issue is required. A trial court’s decision to award attorney fees is reviewed
for an abuse of discretion. Kosch, supra at 354. The trial court concluded that defendant’s
actions in contesting the modification to child support was not unreasonable. The trial court
further concluded that plaintiff had the ability to pay after considering plaintiff’s income from a
trust and her concession that she had the ability to earn $10,000 to $13,000 per year based on her
associate degrees. We cannot conclude that the trial court’s decision in this regard was an abuse
of discretion. Id.
However, the trial court did not consider whether the request for attorney fees was
governed by the terms of the judgment of divorce. Specifically, the judgment of divorce
provided that defendant would be responsible for reasonable attorney fees resulting from
3
Although plaintiff’s counsel sought to have defendant testify, the trial court concluded that the
testimony was unnecessary. The omission of defendant’s testimony is not raised on appeal.
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nonperformance involving support and health care. The trial court failed to consider whether the
payment of attorney fees was required in accordance with the terms of the judgment of divorce.
Accordingly, we remand for consideration of this issue.4
Plaintiff next alleges that the trial court erred in sua sponte applying the doctrine of
laches to preclude enforcement of the provision in the judgment of divorce requiring repair of the
driveway. We agree. Review of the judgment of divorce reveals that the parties were to
mutually agree to a neutral contractor for repair of the driveway and the repair should occur
within ninety days of entry of the judgment, “if possible.” Laches applies where the passage of
time coupled with a change in conditions will make it inequitable to enforce a claim, and the lack
of diligence on the part of the plaintiff causes prejudice to the defendant. City of Jackson v
Thompson-McCully Co, LLC, 239 Mich App 482, 494; 608 NW2d 531 (2000).
In the present case, plaintiff testified that she did not consult a neutral contractor because
defendant would refuse to agree to anyone that she suggested. Defense counsel represented that
defendant would testify that he sent people to fix the driveway. The trial judge declined to hear
testimony from defendant regarding this issue, stating “I’m not deciding a driveway issue …,”
and sua sponte concluded that laches applied pursuant to the terms of the judgment of divorce.
While the judgment of divorce did contain a timeframe for repair, it did not contain a time is of
the essence clause or mandatory language requiring repair within ninety days. Moreover, there
was no evidence of a change in conditions or evidence of prejudice to defendant as a result of
any delay. Accordingly, the trial court erred in applying the doctrine of laches, and we remand
for consideration of this issue.
Plaintiff next alleges that the trial court abused its discretion in failing to establish a
“good fortune” trust for the benefit of the minor children. We disagree. We review questions of
law de novo and review the trial court’s findings of fact for clear error. Meredith Corp v City of
Flint, 256 Mich App 703, 711-712; 671 NW2d 101 (2003). “Good fortune” child support occurs
where there is a difference between the amount of support set forth in the guidelines and the
actual amount necessary to meet the child’s needs. Boyt v Romanow, 664 So 2d 995, 996 (Fla
Dist Ct App 1995). Specifically, where the actual needs of the child are less than the amount of
support awarded pursuant to the guidelines, the excess support may be placed into a trust account
for the benefit of the minor child. Id. at 996-997. The rationale being that a child is entitled to
share in the affluence of a noncustodial support-paying parent. Id. at 996. In the present case,
the trial court did not conclude that there was a difference between the award of child support5
4
At the beginning of the evidentiary hearing, defendant agreed to payment of certain medical
expenses. However, during the continuation of the evidentiary hearing two months later, it was
alleged that there was a return of payment to defendant and that issues remained. The trial court
referred this matter to the friend of the court and did not address it. Thus, the trial court did not
resolve whether a failure to provide support and health care as set forth in the judgment of
divorce occurred that invoked the duty to pay reasonable attorney fees.
5
It is important to note that plaintiff did not contest the amount of child support as increased or
the calculation of the child support. Rather, the issue raised on appeal addressed whether the sale
of the business asset, a capital gain, should be included in the income determination.
-3-
and the actual needs of the minor children. Furthermore, the trial court noted at the
commencement of the hearing that defendant had agreed to establish education trusts on behalf
of the children for a five-year period with deposits of $10,000 in the judgment of divorce. On
this record, we cannot conclude that the trial court’s denial of the request for a good fortune trust
was clearly erroneous. Meredith Corp, supra.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Donald S. Owens
/s/ Karen M. Fort Hood
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