SUZANNE MARIE CHIPPS V GREGORY BRADFORD CHIPPS
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STATE OF MICHIGAN
COURT OF APPEALS
SUZANNE MARIE CHIPPS,
UNPUBLISHED
February 23, 2010
Plaintiff/Counter-DefendantAppellee,
v
No. 291755
Livingston Circuit Court
LC No. 08-040599-DM
GREGORY BRADFORD CHIPPS,
Defendant/Counter-PlaintiffAppellant.
Before: Donofrio, P.J., and Meter and Murray, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce entered by the trial court after a
bench trial. Defendant takes issue with the trial court’s custody decision, its property division,
and its award of spousal support and child support. We affirm.
The parties married in June 2001 and had two children: Gage, born in November 2004,
and Garrett, born in November 2005. The marriage was troubled from its early years, and the
parties finally divorced in 2009. In an interim order, the court awarded temporary legal and
physical custody of the two children to plaintiff. At the time of the proceedings, plaintiff was
employed part-time as a nurse. Defendant, a computer software developer, had left his position
with a consulting firm1 to work full-time at his church. At the conclusion of the proceedings, the
court again awarded plaintiff custody of the two children, with defendant awarded “reasonable
parenting time.” The court awarded plaintiff child support and two years of spousal support.
Defendant first argues that the trial court erred in failing to determine whether an
established custodial environment existed. MCL 722.28 states:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of
1
Plaintiff had also worked part-time at Dykema Gossett as a consultant.
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evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue.
MCL 722.27(1)(c) states that a court, in considering a child-custody issue, may:
Modify or amend its previous judgments or orders for proper cause shown
or because of change of circumstances until the child reaches 18 years of age and,
subject to section 5b of the support and parenting time enforcement act, 1982 PA
295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The
court shall not modify or amend its previous judgments or orders or issue a new
order so as to change the established custodial environment of a child unless
there is presented clear and convincing evidence that it is in the best interest of
the child. The custodial environment of a child is established if over an
appreciable time the child naturally looks to the custodian in that environment for
guidance, discipline, the necessities of life, and parental comfort. The age of the
child, the physical environment, and the inclination of the custodian and the child
as to permanency of the relationship shall also be considered. [Emphasis added.]
Defendant contends that the trial court failed to make a finding regarding the established
custodial environment of the children.2 However, we conclude that such a finding was implicit
in the trial court’s statements. The court, immediately before analyzing the child-custody bestinterests factors, stated that “the prior custody order, a mere – mere existence, has not influenced
my decision.” It then went on to state that it would focus on the “best interest of the minor
children.” Given the trial court’s statement that the interim order would not influence its
decision, and given that the parties clearly had joint legal and physical custody before the interim
order was entered, we find it implicit in the trial court’s ruling that it found an established
custodial environment with both parents. In Overall v Overall, 203 Mich App 450, 455; 512
NW2d 851 (1994), the Court stated:
First, plaintiff argues that the trial court erred in failing to determine
whether a custodial environment was created after the parties' separation and
during the pendency of the divorce. We find this issue to be without merit
because the trial court did address the issue of the existence of a custodial
environment.
Whether a custodial environment exists is a question of fact, which the
trial court must address before ruling on the child's best interests. . . . In the case
at bar, the trial court based its finding that no custodial environment existed on the
prior custody order and the stipulation of the parties that the shared custody
2
Plaintiff argues that the trial court did not need to make a finding regarding whether an
established custodial environment existed because the interim custody order had previously
granted plaintiff full legal and physical custody. This argument is without merit. The temporary
order did not negate the need for finding whether an established custodial environment existed.
See, e.g., Bowers v Bowers, 190 Mich App 51, 53; 475 NW2d 394 (1991).
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arrangement was not to create any custodial environment with either parent.
Thus, contrary to plaintiff's contentions, the trial court made sufficient findings
here.
We find the instant case to be somewhat similar to Overall. While there was no stipulation here
regarding the implications of the interim order, the trial court explicitly stated that that order did
not influence its decision. The implication is that the court was starting from the earlier point of
reference, i.e., when both parties were sharing custody of the children, and that it was not finding
an established custodial environment with plaintiff. We find no basis for reversal.
Defendant next takes issue with the trial court’s findings on factor h of the child-custody
best-interests factors. This factor concerns “[t]he home, school, and community record of the
child.” MCL 722.23(h). The court ruled in favor of plaintiff on this issue, indicating that
defendant had shown some reluctance regarding sending Gage to preschool and indicating that
plaintiff would be more apt to foster in the children an accommodation of other people’s possibly
different belief systems. We find no error with regard to the trial court’s findings on this factor.
Plaintiff testified that defendant was reluctant to allow Gage to attend preschool, expressing fear
that “something would happen, and there would be like a lock down, where you wouldn’t be able
to go and retrieve your children from school.” Plaintiff also testified that defendant told the
children that “[Christmas] is a lie” and “mommy put those presents under the tree.” Plaintiff
testified that defendant would not let the children view carved pumpkins at Halloween and
explained in front of the children why certain holiday traditions are “bad” and “evil.” This
evidence supported the trial court’s findings regarding factor h. While the court may not have
explicitly referred to a “record,” the court was essentially taking into account the past “home,
school, and community” life of the children and finding that plaintiff was the better-suited parent
in this respect.
Defendant appears to be contending that the court was simply discriminating against
defendant on the basis of religion, but this is inaccurate. By describing certain holiday traditions
as “evil” and describing Christmas as “a lie,” defendant was fostering a home and community
atmosphere of intolerance, and the trial court correctly recognized this.
Defendant next takes issue with the trial court’s findings concerning factor j. This factor
concerns “[t]he willingness and ability of each of the parties to facilitate and encourage a close
and continuing parent-child relationship between the child and the other parent or the child and
the parents.” MCL 722.23(j). The court stated, in part:
There I’m going to look at who can best cooperate with an appropriate parenting
time schedule, who will actively encourage positive feelings for the other party,
and who is least likely to disparage the other parent in the presence of the child
are based [sic] upon past performance. And in that regard . . . I do find that this
factor favors Mrs. Chipps. Although Mr. Chipps says that he wants his kids to be
with their mother, that she’s been a good mother, it concerns me with some of the
things that the children come back with, and that are related to me here in court
that I’ve previously noted. And to be able to seek – you’re gonna have different
beliefs. You’ve got different – different values. And you can still instruct your
children regarding your beliefs and your faiths, but they need to understand and
be tolerant for the beliefs of others. The problem is the difference in the belief
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system that the two of you have, and that’s where the conflict comes in. And
that’s where you need to promote and encourage a close relationship with the –
with the other parent.
Defendant contends that, in making this finding, the court was relying on hearsay statements of
Gage. Defendant does not cite to the record in support of his argument or even indicate the
content of the alleged hearsay statements. An appellant may not leave it up to this Court to
unravel his arguments for him. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998). At
any rate, the court’s finding was supported by the evidence. Plaintiff testified that, regarding her
new boyfriend, the children “say Phil doesn’t follow God; Phil’s bad; daddy doesn’t like him.”
Plaintiff testified that dealing with defendant was “very difficult.” This evidence supported the
trial court’s finding that defendant was likely to be less effective than plaintiff in facilitating a
relationship between the two parties. Indeed, that defendant would disparage plaintiff’s
boyfriend as “bad,” apparently because he “doesn’t follow God,” tends to indicate that he would
not be effective in attempting to have the children maintain a close and loving relationship with
their mother as she builds her separate life. Moreover, the statements by the children did not
constitute hearsay because they were not offered to prove the truth of the matter asserted. MRE
801(c).
Defendant next argues that the trial court erred in its spousal-support and child-support
orders because it imputed an incorrect income to plaintiff. We review the decision to award
spousal support for an abuse of discretion, although any factual findings are reviewed for clear
error. Gates v Gates, 256 Mich App 420, 432; 664 NW2d 231 (2003). “The trial court's
decision regarding spousal support must be affirmed unless we are firmly convinced that it was
inequitable.” Id. at 433. We also review child-support orders for an abuse of discretion. Holmes
v Holmes, 281 Mich App 575, 586; 760 NW2d 300 (2008).
In considering spousal support, the trial court found that plaintiff earned $40,000 a year
working part-time and that “she should be able to return to full-time employment within two
years.” It found that defendant “has an income of $113,000, $102,000 from ACS, $11,000 from
Dykema.” It stated:
The present situation of Mrs. Chipps would call for some short term
rehabilitative alimony in order to be able to obtain her recertification. There is
health – there’s a child care expense that’s been factored into the support amount.
And I have to be mindful that Mr. Chipps has voluntarily reduced his income,
which if you were just on your own, if it was just you, it would be fine to pursue
whatever you want to pursue, but there are two children here that have – have
needs, and need the care, and need the ability for their parents to provide for them
while – while they are your dependents.
The court awarded $159 a month in spousal support for two years, “or at such time as Mrs.
Chipps otherwise cures and has full-time employment.” The court stated, “I do look at it as more
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or less tuition assistance for her to be able to complete that certification and go onto full-time
employment.”3
The court also based its child-support award on an income of $113,000 a year.
Defendant contends that the trial court erred in finding that he had this income, because (1) he
had changed professions and now earns $36,000 a year working for his church, and (2) his job
with ACS was no longer available at the time of the bench trial, even if he had wanted it.
Defendant fully admits that he voluntarily changed jobs and took an accompanying pay
reduction. The pertinent question is whether the trial court properly imputed the prior, higher
income to him. In the child-support context, this Court has held:
There is [a] line of cases which holds that a trial court is not limited to a
parent’s actual income in setting child support payments and may consider
unexercised ability to earn. . . .
We agree . . . that when a party voluntarily reduces or eliminates income,
and the trial court concludes that the party has the ability to earn an income and
pay child support, the court does not err in entering a support order based upon
the unexercised ability to earn.
While we fully support an individual’s desire to improve circumstances,
we cannot sanction doing so at the expense of the individual’s minor children.
[Olson v Olson, 189 Mich App 620, 622-623; 473 NW2d 772 (1991).]
In considering spousal support,
[s]everal relevant factors should be considered by the court, including, but not
limited to, the past relations and conduct of the parties, the length of the marriage,
the ability of the parties to work, the ages of the parties, the needs of the parties,
the health of the parties, and general principles of equity. [Demman v Demman,
195 Mich App 109, 110-111; 489 NW2d 161 (1992).]
Given that minor children were involved here and that plaintiff’s eventual ability to
obtain full-time employment would impact their financial resources, we find, as an initial matter,
that the trial court was allowed to impute income to defendant for purposes of spousal support as
well as for purposes of child support. Defendant’s prior employment showed that he was
capable of making a salary of the magnitude imputed by the court, and the court’s spousalsupport order sought to give plaintiff the ability to obtain a nursing recertification and thus obtain
full-time employment.
3
Plaintiff testified that there was currently a hiring freeze at her place of employment; she also
testified that she could work as a nurse practitioner if she obtained a new certification.
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Moreover, on the record before us, we find no basis for reversal with regard to the
amount of income imputed to defendant. Defendant emphasizes the case of Ghidotti v Barber,
459 Mich 189; 586 NW2d 883 (1998). In that case, the Court stated:
[I]n allowing income imputation to a payer whom the court finds to have
an unexercised ability to pay, this Court has required specific findings by the trial
court. Sword v Sword [399 Mich 367; 249 NW2d 88 (1976), overruled in part on
other grounds by Mead v Batchlor, 435 Mich 480; 460 NW2d 493 (1990)] (in
determining a parent’s ability to pay child support, the court must evaluate a
number of factors, such as employment history, education and skills, available
work opportunities, diligence in trying to find work, the defendant’s personal
history, assets, health and physical ability, and availability for work); Rohloff [v
Rohloff, 161 Mich App 766; 411 NW2d 484 (1987)] (refers to Sword criteria for
determination of ability to pay child support in voluntary reduction of income
case). [Ghidotti, 459 Mich at 198-199.]
The Court emphasized that
[t]he requirement that the trial court evaluate criteria such as those listed in Sword
is essential to ensure that any imputation of income is based on an actual ability
and likelihood of earning the imputed income. Any other rule would be pure
speculation and a clear violation of the requirement that child support be based
upon the actual resources of the parents. [Ghidotti, 459 Mich at 199.]
Defendant contends that the trial court did not make the proper findings as required by Ghidotti.
However, and significantly, it was simply not disputed at trial that defendant had the ability to
make the income imputed to him. Indeed, he had done so in the recent past and freely admitted
that he voluntarily took a pay reduction. On this record, we cannot find a basis for reversal. If
defendant finds that, due to the economy or some other factor, he is unable to find employment
at the level imputed by the trial court, he is of course free to petition for a modification in the
support orders. See MCL 552.17 and MCL 552.28.4
Defendant next argues that the trial court erred in its division of the parties’ 401(k)
account. We review for clear error a trial court’s factual findings in a divorce case. Sparks v
Sparks, 440 Mich 141, 146; 485 NW2d 893 (1992).
4
To the extent defendant is arguing that he should be able to change careers and take a predivorce, voluntary reduction in pay without essentially being “penalized” for doing so (as
discussed more thoroughly in Judge Murray’s concurring opinion), this argument would best be
made in the Supreme Court.
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The parties had $74,000 in a 401(k) account, $14,0005 of which was defendant’s
premarital property. Defendant “cashed out” the account, and, in doing so, subjected it to a 10%
penalty. The court stated that defendant would be responsible for the penalty. It stated:
So what I am going to do is I am going to adjust that $14,000, with a 10 percent
penalty and other adjustments, down to a factor of $10,000. So, from the 401(k)
Mr. Chipps would receive $10,000 from that; the balance would be equally
divided.
Defendant’s argument on appeal is hard to follow, but he appears to be arguing that the trial
court somehow erred in making him pay a 10% penalty on the entire 401(k) amount. We find no
clear error. The 10% penalty did in fact apply to the entire 401(k) amount, and the penalty
would not have been applicable had defendant not unilaterally withdrawn the funds. Therefore,
the trial court’s findings were correct. Second, the court deducted only $4,000 from defendant’s
premarital share, and there is no evidence of “double-dipping” as argued in defendant’s brief.
Nor is there evidence that the trial court erroneously applied some type of equity-loss factor.6
Defendant lastly argues that the trial court erred in its property division because he in fact
makes less money each year than plaintiff does. This argument is simply a reiteration of earlier
arguments; plaintiff complains that the court should not have imputed an income to him that he
was not currently earning. We have already addressed this argument and decline to readdress it.
Affirmed.
/s/ Patrick M. Meter
5
The court rounded the figure to $14,000, and defendant does not make an argument on appeal
that this “rounding” must be corrected.
6
The court mentioned the possibility of such a factor but did not state that it was applying one.
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