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Last Updated: August 17, 2007
Cases Search for MI
Opinions -MSC/COA (MSC/COA)
Search for Opinions- MI /MiCtApp/6thCirUS (StBarMI)
Adams
v Linderman, 244 Mich App 178 (2000) the
plain statutory language mandates the imposition of surcharge
on past-due child support payments and deprives the circuit court of discretion
to modify such surcharges. Further that
the Court lacks the discretion to retroactively modify
an accumulated support arrearage.
BOARD OF
TRUSTEES OF THE UNIVERSITY OF ALABAMA v. PATRICIA GARRETT et al. No 99-1240
"Respondents contend that the inquiry
as to unconstitutional discrimination should extend not only to States
themselves, but to units of local governments, such as cities and counties. All
of these, they say, are "state actors" for purposes of the Fourteenth
Amendment. This is quite true, but the Eleventh Amendment does not extend
its immunity to units of local government.
Burba v Burba 461 Mich 637 (2000)
The criteria for deviating from the formula manual are
mandatory. A court must articulate these
factors and explain its decision.
Deviations cannot be based simply on disagreement with
the policies embodied in statutes or in the formula manual, deviation must be
based on a determination that application of particular provisions has an
unjust or inappropriate result in a specific case.
Calley v Calley, 197 Mich App 380 (1992)
A substantial change in the child support amount
recommended in a new friend of the court report [not a new formula manual] may constitute a change in circumstances
that justifies modification. Also see Sharp v. Talsma, 202 Mich App 262 (1993).
DSS
v Yates, 261 Mich App 152 (2004)
Any payment on a child support debt, whether before or after
the running of the period of limitations, acts to extend the limitations period
(this case income withholding). COA
mentions Morehead v Hoffdal, unpublished opinion (Docket No.
201019; 9/29/1998), held that tax refund intercepts of support within the
limitations period waived the statute of limitations defense without regard to
the consent of the paying party. It also mentions Alpena FOC ex rel Paul v Durecki,
195 Mich App 635, 638 (1992) Partial payment of a child support obligation
(payments to avoid being held in contempt of court) made after the expiration
of the period of limitations is an acknowledgment of the debt and a waiver of
the defense.
Evink v Evink, 214
The biological parents of a child are obligated to
support and maintain that child unless (1) a court modifies or terminates the
obligation or (2) the child is emancipated. Even if parental rights are
terminated, absent adoption, the obligation to support a child remains with the
natural parents. The termination of one biological parent's parental rights
does not abrogate the obligation of support if the child remains in the custody
of the other biological parent.
The purpose of child support is to provide for the needs
of a child.
Parents are not permitted to bargain away a child’s right
to receive adequate support from both parents, especially when such action
would result in the child becoming a public charge.
Ghidotti v
Barber 459 Mich 189 (1998)
Any imputation of income must be based on an actual ability
and likelihood of earning the imputed income. “Actual resources”, which the
formula manual must base support on includes certain payers’ unexercised
ability to pay.
When imputing income, a court must consider all of the
imputation factors contained in the formula manual. (“Any other rule would be
pure speculation and a clear violation of the requirement that support be based
upon the actual resources of the parent”)
In addition to the imputation criteria listed in MCSF, Ghitdotti includes consideration of
criteria listed in Sword v Sword, 399
Mich 367, 378-379 (1976); (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, availability for work, etc.).
A trial court may impute
income to a parent with means tested income as a deviation.
A trial court may deviate
from the formula, but it must record in the order or on the record why
following the formula would be unjust or inappropriate.
Jacobs v
Jacobs 118 Mich App (1982)
Obligations for other (subsequent) children of a
noncustodial parent should not be considered when reducing child support, but
it is proper to consider such obligations when ruling on a petition to increase
child support. NOTE: The mandated use of
the formula manual has superceded this “subsequent child” precedent, since the
formula manual specifically requires consideration of all children, whether
prior or subsequent.
Retroactive Modification Limit: A trial court may order a retroactive
increase in child support to be effective as of the date, or any date
subsequent to the date, the petition to modify child support was filed.
Kaiser
v Schreiber Mi COA No. 244428 (
The Supreme Court ruled that the judicial branch should
not extend the equitable parent doctrine to apply to cases involving unmarried
parties. Van v. Zahorik Docket No.
111254 (1999). The equitable parent
doctrine holds that a husband who is not the biological father of a child born
or conceived during the marriage may be considered the natural father of that
child where (1) the husband and the child mutually acknowledge a relationship
as father and child, or the mother of the child has cooperated in the
development of such a relationship over a period of time prior to the filing of
the complaint for divorce, (2) the husband desires to have the rights afforded
to a parent, and (3) the husband is willing to take on the responsibility of
paying child support. Van, supra
(quoting Atkinson v Atkinson, 160 Mich App 601, 608-09
(1987).
Kalter v. Kalter, 155 Mich. App. 99, 399 N.W.2d 455,
458 (1986)
When a parent has an ability
to pay a large amount of support, the determination of a child’s needs can be
generous, but all any parent should be required to pay, regardless of his or
her ability, is a fair share of the amount actually necessary to maintain the
child in a reasonable standard of living.
Langford v. Langford, 196 MichApp 297 (1992)
(10/19/1992). A support debt is a judgment from the time it
falls due and subject to assessment of judgment interest against unpaid support
debts. Practice stopped when MCL
552.603(8) barring interest became effective
Macomb
DSS v Westerman, 250 Mich App 372 (2002)
Biological parents have an inherent obligation to support
their children. Evink v Evink, 214 Mich App 172 (1995)
A biological parent must support a minor child unless a
court of competent jurisdiction modifies or terminates the obligation or the
child is emancipated. MCL 722.3. The purpose of child support is to provide for
the needs of a child. Evink.
The parents of a child are not permitted to bargain away
a child's right to receive adequate support.
McLaughlin
v. McLaughlin, 255 MichApp 475 (2/21/2003)
Although post incarceration
support retroactive modifications were formerly allowed under Pierce v Pierce, since MCL
552.603(2) no longer permits retroactive
modification, the court cannot modify support for periods of incarceration
prior to filing and service of a petition.
The defendant appealed the reasoning the trial court used to deny
granting an incarceration credit (under Pierce) i.e., convicted of
sexually abusing one of the children for whom support was owed. The COA
declined to consider whether a discharge was available based on factors related
to the father's conviction because statute prohibits retroactive modification.
Michaluk
v Whitton MI COA # 170452
In determining the amount of child support to be paid,
the court must consider both the needs of the child and the parents’ ability to
pay. Thompson v Merritt, 192
The court supported its
finding an amount was an appropriate amount for child support, as this amount
included food, clothing, recreation, health care, education, and miscellaneous
expenses of the child such as books and toys. The court was also within its
discretion in finding that child care for a live-in nanny was unnecessary until
plaintiff became employed. Thus, the
court appropriately fashioned a child support payment which took into account
both the child’s needs (excluding plaintiff’s needs), and defendant’s ability
to pay a larger amount of support. Thompson, supra at 416."
There is a rebuttable presumption that a child support
amount determined by the child support guidelines is proper. Calley v Calley, 197 Mich App 380, 384; 496 NW2d 305 (1992) Because of high
income However, the court can determine pursuant to statutes permitting
deviation that a high support amount was unjust or inappropriate, inasmuch as
it exceeded the amount needed to maintain the child in a reasonable standard of
living.
See Haefner v Bayman, 165 Mich App 437, 445; 419 NW2d 29 (1988); Kalter v Kalter,
155 Mich App 99, 104-105; 399 NW2d 455 (1986).
Peterson
v Peterson MI COA#260591 (10/24/06)
The FOC recommendation and trial court ruling both
determined a parent’s income for the purposes of calculating child support by
including depreciation deductions from taxable income and subtracting the
theoretical taxes that parent would owe on that additional income. The court
properly included the depreciation deductions as child support income.
When considering tax deductible income as income for
child support purposes, the court can
only deduct the taxes that a parent actually incurs. “When there is actual
taxation on income, the amount of the deduction in calculating child support is
the amount taxed, no more, no less.”
It is improper to deduct the additional taxes that would
have theoretically been paid had the parent not taken the depreciation
deduction. In this instance, theoretical
tax deductions do not meet the statutory requirement to base support on the
“actual resources of the parent”, and formula manual does not contain
conditional language that allows for adjustment of the taxes actually incurred.
Only allowing deduction of the taxes actually incurred
cannot have an unjust or inappropriate result because it is income that the
parent actually earned. A deviation that
allows deduction of theoretical taxes is improper.
This finding only concerns cases where a parent
actually earns the income and does not apply to imputed income. The section on imputation allows
consideration theoretical tax consequences, since imputed amounts are intended
to “bring total income up to the level it would have been if there had been no
reduction in income.”
Pierce v Pierce, 162 Mich
App 367(1987)
Parents incarcerated for the crime of non-support were
not entitled to any modification for periods of incarceration.
An incarcerated parent
(for crimes other than non-support) is not liable for support during periods of
incarceration, unless affirmatively shown that they have income or assets to
make such payments. This case allowed retroactive credits waiving support for
periods of incarceration until McLauglin overturned
that concept.
Sharp v. Talsma, 202 Mich App 262 (1993)
A change in the support amount calculated under the child
support guidelines in the intervening years may be sufficient to justify
modification. Calley
does not mean that a change in the guideline amounts is a mandatory reason to
modify support. The trial court must consider all the facts and circumstances
claimed, and determine whether the change is sufficient to warrant modification
of the order.
Sierra v Minnear, 341
Any antenuptial indebtedness
of husband to wife or wife to husband is, at common law, extinguished
absolutely and forever upon marriage and not revived on dissolution of the
marriage and the statutes have not abolished the common-law rule.
Tennessee v.
George Lane, et al.
Allows ADA Title II damages against States for not making
reasonable accommodation in courthouses.
Waple v Waple, 179 Mich App 673 (1989)
Retroactive modification of a
child support obligation is permissible with respect to any period during which
there is pending a petition for modification, but only from the date that
notice of the petition was given to the payer or recipient of support;
retroactive modification of support for periods prior to the date of notice of
the petition is prohibited.
Last Updated: August 17, 2007