Carlston v. Carlston

Marilyn Kelly, J. Plaintiff appeals as of right the trial court’s denial of her motion to increase child support and to hold defendant in contempt for failing to pay child support as ordered. We reverse. On May 6, 1987, a judgment of divorce was entered in this matter containing the following provision:_ *503 It is further ordered and adjudged that the Defendant, Donald Carlston, shall pay to the Plaintiff, Georgia K. Carlston, directly, in advance, for the support and maintenance of the minor children of the parties hereto, namely: Branden Brian Carlston, dob: 1/05/75 Shannon Kay Carlston, dob: 08/08/78 Thirty-Six (36%) Per Cent of his yearly net income from his real estate commissions at his place of employment, said net to be calculated taking into consideration Defendant’s federal, state and fica deductions and Three (3) dependants [sic], BUT IN ANY event said amount of support shall not exceed $225.00 per week and the parties shall cooperate and attempt to determine every 90 days the correct amount of support based on said aforementioned 36% net for proper adjustment, commencing on the date hereof, until said minor children have finished their high school education, reached the age of eighteen years, whichever is the later, or, in exceptional circumstances, until further Order of this Court; provided, further, that upon Plaintiff’s remarriage, dejure [sic] or defacto [sic], Defendant’s child support obligation shall reduce by Twenty-five (25%) Per Cent. In November, 1987, plaintiff notified defendant that she was remarrying and that defendant should reduce the support obligation by twenty-five percent. Defendant did so by paying seventy-five percent of $225 from November, 1987, to the present time. During 1986, defendant’s income was approximately $30,000 to $40,000. In 1985 and 1987, it was approximately $60,000, and defendant projected that his earnings for 1988 would be in excess of $60,000. On May 3, 1988, plaintiff filed a petition for contempt and to amend the judgment to increase child support. On August 26, 1988, the trial court entered an order denying the relief sought and affirming the judgment of divorce, *504 agreeing with defendant’s interpretation of the above provision. Plaintiff first claims that defendant’s child support obligation should be modified, because she has shown a change in circumstances based on defendant’s increase in income. A trial court has the statutory power to modify orders for child support upon a showing by the petitioner of a change in circumstances. MCL 552.17; MSA 25.97; Haefner v Bayman, 165 Mich App 437, 444; 419 NW2d 29 (1988). The modification is within the discretion of the trial court. Haefner, supra; Jacobs v Jacobs, 118 Mich App 16, 20; 324 NW2d 519 (1982). The court must consider both the needs of the child and the parents’ ability to pay. Haefner, supra; Hoke v Hoke, 162 Mich App 201, 206; 412 NW2d 694 (1987). In the present case, the trial judge acknowledged his authority to modify child support. He found that an increase in income from $40,000 to $60,000 was a substantial change. He also noted that he must consider the needs of the children and stated he would allow the parties to address the issue of need. Soon after, however, he ruled on the need issue without further testimony. The judge erred when he failed to permit plaintiff the opportunity to demonstrate increased need. This is especially true in light of the fact that plaintiff had compelling evidence of defendant’s increased ability to pay. Plaintiff also contends that the trial judge did not properly interpret the child support provision in the judgment of divorce. She urges the twenty-five percent reduction in child support based on plaintiff’s remarriage should be subtracted from thirty-six percent of defendant’s yearly income and not from the $225 maximum specified. The trial judge correctly recognized that he has *505 the discretion to raise support above the $225 per week ceiling agreed upon by the parties when the judgment was entered. This provision is not binding on the court. The purpose of child support is to meet the needs of the child. Parents may not bargain away a child’s right to receive adequate support. Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989). The parties may not usurp the court’s statutory authority by agreeing to a limit in the amount of support. Provisions which attempt to put a ceiling on the amount of support available in the future are unenforceable and misleading to any who rely on them. They should not be included in the divorce judgment. Therefore, the judge is not bound either by the formula or the ceiling. Finally, we note that the provision which makes the amount of child support contingent upon one party’s remarriage also is not binding upon the court for the same reasons. See Beverly v Beverly, 112 Mich App 657; 317 NW2d 213 (1981). It is presumptuous. It assumes that a custodial mother will be in a better financial position and be capable of meeting a greater share of her child’s monetary needs simply because of remarriage. Moreover, as noted above, it is well settled that a party’s child support obligation may not be modified absent a showing of a change in circumstances. The child support provision in this case completely abrogates that requirement. It proclaims effectively that remarriage of the custodial mother itself constitutes a change in circumstances. It ignores the need for a determination that the remarriage has in fact led to an increased ability to pay. A party’s remarriage is only one of the facts which the court needs to weigh in order to determine whether it is in the child’s best interest to lower support. McCarthy v McCarthy, *506 74 Mich App 105; 253 NW2d 672 (1977); Rutledge v Rutledge, 96 Mich App 621; 293 NW2d 651 (1980). Defendant states in his appellate brief that the child support provision was based on the Muskegon County Friend of the Court support guidelines in effect when the provision was drafted. If that is correct, and if similar guidelines are still in effect, we urge an immediate revision ending automatic reduction in child support upon the remarriage of a custodial mother. We caution trial judges not to include such provisions in divorce judgments. We reverse and remand for a hearing to determine whether a change in circumstances has occurred. If it has, the revised support level should be based on the children’s needs and the parents’ ability to pay. The judge is not bound by the $225 ceiling. Reversed.