Zammitt v. Zammitt

106 Mich. App. 593 (1981) 308 N.W.2d 294 ZAMMITT v. ZAMMITT. Docket No. 52196. Michigan Court of Appeals. Decided May 20, 1981. Bayer, Goren, Gornbein, Gropman & Kaplan, P.C., for plaintiff. Lippitt, Harrison, Perlove, Friedman & Zack, for defendant. Before: V.J. BRENNAN, P.J., and M.J. KELLY and D.C. RILEY, JJ. PER CURIAM. Plaintiff appeals as of right from an order of the trial court denying his motion to modify child support payments. On June 15, 1979, a consent judgment of divorce was entered in Wayne County Circuit Court. In addition to other matters, the judgment provided that plaintiff pay $120 per week, per child, for the support of two minor children. Subsequently, plaintiff filed a motion for modification of child support payments and soon thereafter the defendant wife filed a motion for order to show cause for failure to pay child support. The *596 plaintiff was ordered to appear on the order to show cause on May 30, 1980. Following the filing of the friend of the court's report and recommendation, on May 23, 1980, a hearing on plaintiff's motion to modify child support was held before Judge John M. Wise. The plaintiff was not present at the hearing. His attorney advised the court that plaintiff had remarried, lost his job and had moved to Nevada. In addition, the attorney advised the court that since his client's employment in a family-owned business had been terminated, an arrearage of $2,400 had accrued in the plaintiff's support payments. Finally, the attorney requested an evidentiary hearing by the friend of the court. Judge Wise denied the motion to modify. Plaintiff's first claim of error is that the trial court conditioned the granting of an evidentiary hearing regarding plaintiff's motion to modify child support on payment of arrearages. In so framing the issue, we believe the plaintiff distorts the facts. Before modification is warranted, the record must reflect a change in circumstances and this change must be supported by proven evidence. Andries v Andries, 77 Mich App 715; 259 NW2d 203 (1977), McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1977). As we read the record, the court denied the motion to modify because the plaintiff could not carry his burden of proof — hence, the court was powerless to grant him the relief he requested, a modification of the child support payments for his two minor children. MCL 552.17, 722.27; MSA 25.97, 25.312(7). In the present case, plaintiff did not attend the hearing. The trial judge inquired about the circumstances relating to the motion. Plaintiff's attorney explained that plaintiff was currently unemployed *597 and living in Nevada. He submitted a letter from plaintiff's father stating that he had terminated his son's employment. No other evidence was offered which would warrant modification. The court is not obliged to reduce child support payments solely for the reason that there has been a reduction in plaintiff's income. All relevant factors must be considered. Without the plaintiff present to provide this information, the court could do no more than decide the motion on the information supplied by the petitioner. While it is clear that the court did state that it would not grant an evidentiary hearing unless the plaintiff appeared to testify and the arrearage was paid, this was not the basis for the denial of the motion to modify. The motion failed because of the absence of sufficient proof and the failure of the plaintiff to provide an evidentiary record that would support altering the support provisions. Had the plaintiff been present (and he was not) and had the issue of arrearages also been before the court (and it was not) the court could not have required payment of said arrearages without first establishing at an evidentiary hearing that the plaintiff had the capacity to pay. The fact that the judge indicated that he would do otherwise at such a hearing is not a basis for reversing the decision properly made on the motion to modify which was before him. Plaintiff's second contention of error is that the trial court erroneously adopted the friend of the court's recommendation as conclusive evidence on the matter of child support. Again, while it is clear that the judge, at the close of the proceedings, indicated that he was adopting the recommendation of the friend of the court, the court did so only after it had questioned *598 plaintiff's attorney and concluded that plaintiff could not carry his burden of proof by establishing a sufficient change in circumstances. Where, as here, the record indicates that the court did not rely on the report in reaching its decision, there is no violation of MCL 552.253; MSA 25.173, which disallows the admission of the friend of the court's report unless both parties agree. Krachun v Krachun, 355 Mich 167; 93 NW2d 855 (1959), McCarthy, supra. The record clearly supports the fact that the court arrived at its own conclusions based on the questions posed to plaintiff's attorney and the fact that a satisfactory evidentiary record could not be developed in the absence of the plaintiff. Finally, plaintiff claims that the trial court erred by invoking the contempt statute. The record does not support plaintiff's claim. At the time of hearing on the motion to modify, plaintiff had not been found in contempt for nonpayment of support, because, pursuant to the order to show cause, he was not to appear before the court until May 30, 1980, one week following the modification hearing. While the Court of Appeals was advised by counsel, at the time of oral arguments, that plaintiff did not appear at that order to show cause hearing and an attachment was issued for his arrest, the contempt proceedings are not properly within the purview of this claim of appeal. There was no determination on the order to show cause by the trial judge at the modification hearing on May 23, 1980, and there is no evidentiary record for our review. McNames v McNames, 93 Mich App 477, 482; 286 NW2d 892 (1979). Affirmed. M.J. KELLY, J. (dissenting). I respectfully dissent. *599 The lower court's order denying plaintiff's petition should not have been entered without a hearing to examine and make findings of fact on the evidence presented by the plaintiff in support of the requested modification. A trial court is statutorily empowered to modify previously entered child support orders upon a properly filed petition by either parent or the friend of the court. MCL 552.17; MSA 25.97. The decision on such a petition has been held to be within the court's discretion. Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959). Further, it is the petitioning party's burden to present evidence "establishing a change in circumstances that would justify an alteration of the divorce judgment" provisions as to child support. McCarthy v McCarthy, 74 Mich App 105, 108; 253 NW2d 672 (1977), citing Hentz v Hentz, 371 Mich 355; 123 NW2d 757 (1963), and Cymbal v Cymbal, 43 Mich App 566; 204 NW2d 235 (1972). It is difficult to conceive how a petitioning party could establish the requisite change of circumstances without some formal hearing at which evidence is presented and from which findings of fact can be made. The fact that the instant petition was denied does not, in my view, make the hearing requirement moot. The instant case is very like McCarthy, supra, 109, in which this Court indicated the necessity of a premodification hearing: "The order was made without a hearing and there was no agreement expressed or implied to allow the court to utilize solely the Friend of the Court's recommendation. Krachun v Krachun, [355 Mich 167; 93 NW2d 885 (1959)], Stros v Stros, [25 Mich App 154; 181 NW2d 26 (1970)]. Additionally, the recommendation was based totally upon the fact of defendant's increase *600 in salary. All relevant factors are to be considered in determining whether there has been a sufficient change in circumstances. Cymbal, supra, Stros, supra. The isolated consideration of income is error. Cymbal, supra." Thus, prior to its decision on a petition to modify child support the court must hold an evidentiary hearing of its own or, when both parties agree, adopt the factual predicate in the friend of the court's report. See Krachun, supra, 169, in which the Supreme Court stated: "Such a report is authorized by statute for the consideration of the circuit judge. CL 1948, § 552.253 (Stat Ann 1957 Rev § 25.173); Metzinger v Metzinger, 310 Mich 335 [; 17 NW2d 203 (1945)]. It is not generally admissible in evidence. Brugel v Hildebrant, [332 Mich 475; 52 NW2d 190 (1952)]. It may, however, by agreement of all parties be accepted in evidence as constituting an agreed statement of facts or record of testimony. Bowler v Bowler, 351 Mich 398 [; 88 NW2d 505 (1958)]." (Emphasis in original.) The trial court in this case perfunctorily denied counsel for the plaintiff's request for "a full hearing before this matter is finalized". In light of the above-noted hearing requirements, I would set aside the lower court's order denying plaintiff's petition and remand the case for a hearing on its merits.