STEVEN R RADULOVICH V MONICA KAUFMAN
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STATE OF MICHIGAN
COURT OF APPEALS
STEVEN R. RADULOVICH,
UNPUBLISHED
May 26, 2005
Plaintiff-Appellant,
v
No. 252647
Wayne Circuit Court
LC No. 88-803552-DM
MONICA KAUFMAN, f/k/a MONICA
RADULOVICH CROWDER,
Defendant-Appellee.
Before: Saad, P.J., and Zahra and Schuette, JJ.
PER CURIAM.
Plaintiff appeals by leave granted a trial court order regarding private schooling and an
order regarding child support. We reverse and remand.
I. FACTS
Plaintiff and defendant were divorced on February 23, 1990. Plaintiff was awarded sole
legal custody and physical custody of the parties’ then two minor children, Steven, then age four,
and Alexis, then age five. Steven resided with plaintiff from February 1990 to August 2002. In
August 2002, Steven left his father’s home and went to live with defendant after experiencing
academic and behavioral problems. Defendant arranged for Steven to live with his paternal
grandparents so that he could remain in Grosse Pointe North High School, the school he attended
before leaving plaintiff’s home.
On August 28, 2002, defendant filed a motion for change of custody. Defendant asserted
that plaintiff threatened to arrange for Steven to live outside of plaintiff’s home. Defendant
argued that it was in Steven’s best interest that she be given immediate custody of Steven. On
January 31, 2003, the trial court issued an order changing physical custody of Steven to his
paternal grandparents, Steven Radulovich, Sr., and Edith Radulovich. Joint legal custody was
vested in Steven’s paternal grandparents, as well as plaintiff and defendant. The order directed
that the friend of the court investigate and make a recommendation regarding child support to be
paid to Steven’s paternal grandparents by plaintiff and defendant. The order also stated that the
friend of the court must consider plaintiff’s payments towards Alexis’ college expenses in its
calculations. In addition, the order provided that plaintiff reimburse defendant for child support
funds received from September 2002 to January 2003.
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Steven was arrested on March 6, 2003, for possession of marijuana and drug
paraphernalia. He was expelled from his public high school. Defendant and Steven’s paternal
grandparents investigated several alternatives for Steven. They decided to send Steven to
Northwest, a private school in Idaho. Northwest offered an accelerated program to allow Steven
to graduate on time in August 2004. The program also offered group and individual counseling.
The monthly tuition for Northwest was $5,665.
On July 11, 2003, the friend of the court issued a child support recommendation. The
friend of the court recommended that plaintiff pay $644 a month and defendant pay $735 a
month in child support to Steven’s paternal grandparents. The friend of the court further
recommended that if Steven was enrolled in the Ivy Ridge Academy Boarding School to
complete his high school education, the support payments should shift over to defendant to help
pay the approximate costs of $40,000 per year. The recommendation did not consider Steven’s
enrollment in Northwest.1
On July 30, 2003, defendant filed an objection to the friend of the court recommendation.
Defendant requested that the trial court order plaintiff to pay a pro-rata portion of fees and
expenses for Steven to attend Northwest. On September 18, 2003, the trial court held a hearing
on defendant’s objection to the recommendations of the friend of the court. The trial court
decided that Steven would attend Northwest and that attendance was in Steven’s best interest.
The trial court concluded that three of the four joint legal custodians (i.e., the paternal
grandparents and defendant) could make the decision to send Steven to Northwest.
On September 19, 2003, the trial court issued a scheduling order. The order scheduled an
evidentiary hearing to determine the amount of support to be paid by the parties involved. The
order stated that the parties were to submit proposed findings of fact by October 20, 2003. The
trial court stated that failure to submit proposed findings of fact may result in the trial court
refusing to receive exhibits and hear testimony.
Consistent with its prior ruling, the trial court entered an order regarding private
schooling on October 9, 2003. The order provided that Steven was to “attend Northwest and
other therapeutic programs that Northwest deem[ed] essential, until he graduat[ed].” The order
provided that communication between Steven and his parents would be in the discretion of
Northwest school officials. The order also provided that an evidentiary hearing would be
conducted on October 27, 2003, to determine the amount plaintiff should pay toward Steven’s
schooling.
On October 27, 2003, the trial court held an evidentiary hearing to determine the amount
of child support to be paid by the parties. The trial court found that plaintiff did not submit
findings of fact and that there were no issues of fact. Plaintiff asserted that he never received the
scheduling order that required the parties to submit findings of fact. Plaintiff opposed this action
and requested to make an offer of proof before the trial court. The trial court initially denied
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Apparently, the friend of the court was unaware of the decision to send Steven to Northwest.
Therefore, the friend of the court used another boarding school to determine support payments.
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plaintiff’s request, citing his failure to comply with the scheduling order and stating that there
were no issues of fact. Eventually, the trial court allowed plaintiff to present an offer of proof
regarding issues of fact in dispute. Plaintiff made an offer of proof that he earned $1,500 a week
on a draw against commission. Plaintiff also asserted that he has been on the job for less than a
month and could not definitively specify his income. Plaintiff opposed defendant’s proposed
finding of fact that he earned $2,400 a week. The trial court entered an order that plaintiff pay
two-thirds of the expenses related to Northwest, retroactive to the date of enrollment.
On December 9, 2003, plaintiff filed a delayed application for leave to appeal. This
Court subsequently granted plaintiff’s delayed application for leave to appeal.
II. EVIDENTIARY HEARING
Plaintiff’s first issue on appeal is that the trial court erred when it failed to hold an
evidentiary hearing before making a custody decision regarding the minor child because there
were disputed factual issues. We agree.
A. Standard of Review
There are three standards of review in child custody cases. The great weight of the
evidence standard applies to all findings of fact. Under that standard, the trial court's findings
will be sustained unless the evidence clearly preponderates in the opposite direction. An abuse
of discretion standard applies to the trial court's discretionary rulings such as custody decisions.
Finally, a trial court commits clear legal error when it incorrectly chooses, interprets, or applies
the law. LaFleche v Ybarra, 242 Mich App 692, 695; 619 NW 2d 738 (2000).
B. Analysis
Joint custody in this state by definition means that the parents share the decision-making
authority with respect to the important decisions affecting the welfare of the child. Where joint
custodians cannot agree on important matters such as education, it is the court's duty to
determine the issue in the best interests of the child. Lombardo v Lombardo, 202 Mich App 151,
159; 507 NW2d 788 (1993). Custody disputes are to be resolved in the child's best interests, as
measured by the factors set forth in MCL 722.23. Generally, the trial court must consider and
explicitly state its findings and conclusions regarding each factor, and the failure to do so is
usually error requiring reversal. Ybarra, supraat 700. A trial court is not to change an
established custodial environment unless there is clear and convincing evidence that it is in the
best interest of the child. MCL 722.27(1)(c); Hawkins v Murphy, 222 Mich App 664, 674; 565
NW2d 674 (1997).
Before a motion hearing held in the trial court, the minor child’s paternal grandparents
and defendant decided that the minor child would attend an out-of-state private institution with a
monthly tuition of $5,665. The decision of the minor child’s grandparents and his mother to
send him to the school was an important decision which affected the minor child’s welfare.
Lambardo, supra at 159. Pursuant to an order issued before the hearing, defendant, plaintiff, and
the minor’s paternal grandparents all received joint legal custody of the minor child. Plaintiff
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opposed sending the minor child to the school. Therefore, there existed a dispute regarding an
important decision affecting the minor child’s welfare. The trial court found the following:
I’ll mention that on the question of whether or not he should . . . go to that school
. . . it’s not an issue. Three of the four custodians says he should and this court
will decide that three of the four custodians can make that decision.
The trial court also found that it was in the minor child’s best interest to attend the private
school. However, the trial court did not evaluate the custody dispute according to the factors
delineated in MCL 722.23. Ybarra, supra at 700. The trial court failed to consider or state its
findings and conclusions regarding each factor. This is error requiring reversal. McCain v
McCain, 229 Mich App 123, 124; 580 NW2d 485 (1998). Instead, the trial court decided that
the decision of three out of four of the minor child’s custodians was sufficient to satisfy the best
interest of the child. The trial court’s decision to do so was a legal error. Nothing in the record
indicates that the trial court used the “best interest” factors set for in MCL 722.23 to make its
decision. It can hardly be said that the decision of three out of four legal custodians constitutes
clear and convincing evidence that the minor child’s custodial environment should have been
changed. The decision of the trial is reversed.
III. CHILD SUPPORT GUIDELINES
In plaintiff’s second issue on appeal, he asserts that trial court abused its discretion in
deviating from the child support guidelines without holding an evidentiary hearing.
A. Standard of Review
A trial court has the power to modify a support order upon a showing by the petitioning
party of a change in circumstances which justifies modification. MCL 552.17(1); Kosch v
Kosch, 233 Mich App 346, 350; 592 NW2d 434 (1999). If there is a factual dispute concerning
the circumstances relating to modification, the court must hold an evidentiary hearing to
determine the factual issues. Varga v Varga, 173 Mich App 411, 415-416; 434 NW2d 152
(1988). Modification of a child support order is a matter within the trial court’s sole discretion.
Burba v Burba, 461 Mich 637; 610 NW2d 873 (2000).
B. Analysis
The modification of child support in the instant case was prompted by the fact that the
minor child changed custodial environments and lived with his paternal grandparents. Plaintiff
was receiving child support payments before this time. In addition, the minor child was ordered
to attend the private school before the modification hearing. Therefore, there was a change in
circumstance to warrant a modification hearing.
At a conference before a scheduled hearing, the trial court directed the parties to file
proposed findings of fact. Defendant filed proposed findings of fact, while plaintiff failed to do
so. At the hearing, the trial court found that plaintiff did not submit findings of fact and that
there were no issues of fact. The trial court informed the parties that it outlined a decision based
on the findings of fact defendant submitted. Plaintiff opposed this action, asserting that he never
received the scheduling order, and requested to make an offer of proof before the trial court. The
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trial court refused to allow plaintiff to make an offer of proof, stating that plaintiff had not
complied with the scheduling order. Eventually, the trial court allowed plaintiff to present an
offer of proof regarding issues of fact in dispute.
Plaintiff contends that the trial court erred when it refused to conduct an evidentiary
hearing on the child support modification issue. However, plaintiff’s counsel was in attendance
at a conference before the hearing and noted on his file that something was to be filed “one week
prior to hearing.” Plaintiff was also served with defendant’s proposed findings of fact before the
hearing and did not respond. In addition, the trial court allowed plaintiff to make an offer of
proof regarding what he wished to establish at an evidentiary hearing. Plaintiff made an offer of
proof regarding a change in jobs and opposed defendant’s proposed finding of fact that he earned
substantially more money than he actually did. Plaintiff also noted that his new job was not
necessarily a reduction in income because he did anticipate percentage kickers which may have
enhanced his income. Therefore, plaintiff conceded that his income had not “necessarily” been
reduced. Even after trial court allowed plaintiff to make an offer of proof, it held that there was
no factual dispute and that an evidentiary hearing was unnecessary. Plaintiff was entirely aware
that he was to submit proposed findings of fact to the trial court. His failure to do so resulted in
clearly articulated court sanctions. In addition, plaintiff was able to make an offer of proof
regarding factual disputes. Therefore, the trial court did not err in accepting defendant’s
proposed findings of fact.
Plaintiff also contends that the trial court erred in deviating from the child support
guidelines when it required him to pay two-thirds of the minor child’s tuition at the private
school. In determining the contributions to support that parties must make, the trial court must
generally follow the formula developed by the friend of the court. MCL 552.17; Shinkle v
Shinkle (On Rehearing), 255 Mich App 221, 225; 663 NW2d 481 (2003). The assessment of
support and the support formula are based on the child’s needs and circumstances and each
parent’s ability to pay. Id. A court may deviate from the support formula only if application of
the formula would be unjust or inappropriate. MCL 552.17; Ghidotti v Barber, 459 Mich 189,
196; 568 NW2d 883 (1998). The Court must specify in writing or on the record all of the
following: 1) the support amount determined by application of the child support formula; 2) an
alternative support recommendation and all factual assumptions upon which the alternative
recommendation is based; 3) how the support order deviates from the child support formula; and
4) the reasons why application of the child support formula would be unjust or inappropriate.
MCL 552.17; Ghidotti, supra at 196. All relevant factors must be considered, including the
child’s needs and the parties’ abilities to pay. Varga, supra at 415-416.
In the instant case, the friend of the court recommended that plaintiff pay $644 a month
and defendant pay $735 a month in child support to the minor child’s paternal grandparents. The
friend of the court further recommended that if the minor child was enrolled in the Ivy Ridge
Academy Boarding School to complete his high school education, the support payments should
shift over to defendant to help pay the approximate costs of $40,000 per year. The decision to
send the minor child to Northwest was made after this recommendation. The recommendation
of the friend of the court made no mention of support payments were the minor child to attend
the private school that he eventually enrolled in. Therefore, defendant filed an objection to the
friend of the court recommendation. Defendant requested that the trial court order plaintiff to
pay a pro-rata portion of fees and expenses for the minor to attend the selected private school.
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Defendant submitted recommendations pursuant to child support guidelines. The trial court
announced its deviation from support guidelines without an evidentiary hearing. The trial court
entered an order that plaintiff pay two-thirds expenses related to the selected private school,
retroactive to the date of enrollment.
The trial court took judicial notice of the child support guidelines submitted with
defendant’s proposed findings of fact. Pursuant to the guidelines, plaintiff’s support payment
would have been $258 per week. The trial court articulated the reasons why the application of
the support guidelines would be unjust or inappropriate. MCL 552.17; Barber, supra at 196.
The trial court stated that the minor child had “independent” and “special” needs and that “this
[was] an exceptional case.” The trial court determined that the child support formula would be
inappropriate given the exceptional nature of this case. However, the amount of the trial court’s
deviation from the guidelines is questionable. The amount of child support according the
guidelines was $258 per week. The expenses associated with the minor child attending the
selected private school amounted to $5,665 per month. Plaintiff earned a substantially higher
income than defendant. Plaintiff’s weekly income was $2,400 and defendant’s weekly income
was $1,020. The parties relative income alone does lend credence to the trial court’s finding that
plaintiff pay two-thirds of the minor child’s tuition to attend the selected private school.
However, the trial court did not consider its own prior support order granting plaintiff credit for
any monies used to support the parties’ other child’s college education. At the hearing, the trial
court only considered the parties’ incomes and did not consider its prior order regarding finances
plaintiff contributed to the other child’s college education. In light of the prior support order, a
subsequent order for plaintiff to pay two-thirds of the minor child’s tuition without taking into
account the credit received for paying the parties’ other child’s educational expenses is an abuse
of discretion. Therefore, we reverse the trial court’s child support order.
The trial court’s orders regarding private schooling and child support are reversed and
this case is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Brian K. Zahra
/s/ Bill Schuette
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