Child Support Modification

Good Morning Flint!
By Terry Bankert 12/6/08
http://attorneybankert.com/
The following is a summary of the material I will present on WFLT 1420 AM Radio on Saturday 12/6/08. This is a call in program 239-5733 if you have questions on this presentation or family law. I can also be reached through the web page listed above.
Issues for discussion 12/6/08

[Longer article at http://terrybankert.blogspot.com/ ]

Q1: If the baby’s mama makes you agree to not lower your child support in order to have you child overnight 167 nights a year can you get your child support lowered later after your income declines?

Q2:You put the above in a contract but you know the law says child support is always modifiable does that change your answer.

Q3.To get these grate overnights you had to promise to give mom 25 % of your yearly bonus in addition to child support above the guidelines , you are now paying way above the guidelines, does that change your answer.

Q4. Mom makes $80,000 a year and all she gave up was a little spousal support can you get
your child support reduced.

Q5. Mom and dad are lawyers, dad make $177,000 [practicing law] and mom makes $80,000 [ in private business], dad gets annual bonus in the amount of six figures normally mom would have been awarded spousal support. Can dad get his child support lowered.

1.Child support; Whether the trial court properly granted the defendant-father's motion to modify his child support obligation;

2.Change of circumstances; governing determination of child support;

3.Michigan Child Support Formula Manual (MCSFM); .
[This opinion has been modified for media presentation consult an attorney before you rely on its content.(...) Indicates content has been removed CAP headlines have been added-Terry Bankert 12-5-08]
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Michigan Court of Appeals (Published), Case Name: Holmes v. Holmes e-Journal Number: 41219, Judge(s): Gleicher, Bandstra, and Beckering
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CONTRACT THEORY AND CHILD SUPPORT
The court held since the child support guidelines set forth a parent's minimum support obligation, a voluntarily assumed obligation to pay an amount in excess of the minimum is not inherently objectionable and a contract enhancing a parent's child support obligation should be enforced, absent a compelling reason to forebear.

THE COUPLE WERE BOTH ATTORNEYS
The parties, both attorneys, have two minor children.

THEY DIVORCED 1996
A consent divorce judgment was entered in July 1996. At the time of the divorce, the plaintiff-mother practiced in a small firm.

MOM NOW RUNS A CONSTRUCTION BUSINESS
She is now the president of a family construction business and no longer practices law.

DAD IS A PARTNER IN A LARGE FIRM
Defendant-father is a partner in a large statewide law firm.

THE DIVORCE JUDGEMENT INCORPORATED A SIDE AGREEMENT OR CONTRACT
DAD GETS 164 OVERNIGHTS A YEAR* DAD PAYS 25% OF HIS BONUS AS CHILD SUPPORT
The consent judgment of divorce incorporated a document the parties called the "contract," which provided, inter alia, for joint legal custody of the children, with plaintiff having physical custody, defendant having overnight custody about 164 days a year, and a paragraph as to the computation of child support including a provision requiring defendant to pay as child support 25 percent of any net bonus each year. The contract also contained a provision addressing future child support modification. Over the years, the computation of the amount of child support defendant was to pay was disputed by the parties.

2006 DAD WANTS TO CHANGE THE CHILD SUPPORT
Just before the 10-year anniversary of the divorce judgment, defendant moved for modification of his child support obligation.

THEY WENT TO MEDIATION
The issue was mediated and the trial court issued an order modifying the support obligation (which resulted in a $45 increase in defendant's payments) and held an evidentiary hearing on the bonus percentage, and changed the bonus to 9.3 percent.

THE TRIAL COURT WOULD NOT ENFORCE THE SIDE AGREEMENT OF CONTRACT
The trial court refused to enforce the bonus agreement the parties entered into voluntarily, despite the absence of any evidence its enforcement would create a hardship for the defendant, or otherwise qualify as unjust or inappropriate.

MOM APPEALED TO THE MICHIGAN COURT OF APPEALS
Plaintiff appealed.

CHANGES OF CIRCUMSTANCES CAN CHANGE CHILD SUPPORT
The court held the trial court did not err in concluding a change of circumstances warranted modification of defendant's support obligation.

THE TRIAL COURT MUST USE THE MICHIGAN CHILD SUPPORT FORMULA MANUEL AND EXPLAIN HOW IT DEVIATES
The Supreme Court requires trial courts use the MCSFM and established a procedure they must follow when deviating from the MCSFM including an explanation of how the order deviates from the formula.

THE BONUS AGREEMENT IS CHILD SUPPORT BUT CAN BE MODIFIED IF CIRCUMSTANCES CHANGE
The court noted the history the parties' child support dispute illustrated enforcing the bonus agreement served the purposes of the statutes governing child support, while preserving the court's ability to modify defendant's obligation if his or the children's financial circumstances changed.

THE BONUS AGREEMENT IS A CONTRACT AND MUST BE ENFORCED
The bonus provision in the divorce judgment was contractual, freely negotiated, and unambiguous. Thus, it must be enforced as written. Reversed and remanded.
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S T A T E O F M I C H I G A N C O U R T O F A P P E A L S
ELIZABETH S. HOLMES, Plaintiff-Appellant, FOR PUBLICATION
December 4, 2008 9:05 a.m. v No. 276470 Kent Circuit Court
RICHARD E. HOLMES, JR., LC No. 96-003184-DM Defendant-Appellee.
Before: Bandstra, P.J., and Beckering and Gleicher, JJ. GLEICHER, J.
e-Journal Number: 41219
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Posted Here By
Terry Bankert
http://attorneybankert.com/

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