Saturday, May 31, 2008

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BY Terry Bankert 5/31/08 You are invited to join me at Face Book ___________________________
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Child support;
Post-judgment order denying the plaintiff-mother's request to increase child support;
Whether the trial court should have imputed income to the defendant-father; MCL 552.605(2); Ghidotti v. Barber; Reed v. Reed;
Whether the trial court erred in its earnings calculations;

Stallworth v. Stallworth Court: Michigan Court of Appeals (Unpublished) Case Name: McDowell v. McDowell Kalamazoo Circuit Court 02-007446-DM e-Journal Number: 39454 Judge(s): Per Curiam - O'Connell, Hoekstra, and Smolenski

The court affirmed the trial court's post-judgment order denying the plaintiff-mother's request to increase child support. The Court agreed with the trial court she did not establish the defendant-father was hiding large amounts of income and holding the trial court did not err in declining to impute greater income to defendant.

The court noted "there was no evidence presented regarding four of the seven elements courts look to in determining whether to impute income" - defendant's educational level, -whether he had any mental or physical disabilities, - the presence of children in his home and its impact on the parties' earnings, -and the availability of employment in his area.

The evidence showed defendant's prior employment experience was as a floor installer and a trucker. His social security statement showed taxable social security earnings from 1985 through 2003 and indicated the highest annual incomes he earned were $20,582 in 1998 and $28,812 in 1999. While plaintiff contended defendant earned $75,000 in the first 18 weeks of 2004 and admitted it at a referee hearing, the record did not support this claim. Plaintiff also asserted amended 1099s showed he and his new wife pocketed about $90,000 "under the table" and all of those funds should be imputed to defendant. Amended 1099s were issued to defendant and his new wife for 2004, which increased non-employee compensation to them by about $90,000.

However, plaintiff provided no cite to the record to support defendant hid or lied about the $90,000 and the court found no support for this in the record. Defendant and his new wife filed amended 2004 tax returns taking into account the amended 1099s. Their joint amended return stated an adjusted gross income of $36,780, taxable income of $14,690, and a net profit of $13,074 to defendant from the business.

The court concluded the $40,000 and $30,000 incomes imputed to defendant were in line with the figures he reported for the original FOC custody and parenting time evaluation, reflecting what he had earned as a floor installer since 1999. Affirmed.

CHILD SUPPORT GENERALY FROM THE MICHIGAN CHILD SUPPORT GUIDELINES In determining the contributions to support that divorced parents must make, the trial court must generally follow the formula developed by the Friend of the Court Bureau. MCL 552.605(2); Berger v Berger, 277 Mich App 700, 724; ___ NW2d ___ (2008).

A COURT MAY ENTER AN ORDER OUTSIDE THE GUIDELINES A court may deviate from the support formula only if application of the formula would be unjust or inappropriate. MCL 552.605(2); Ghidotti v Barber, 459 Mich 189, 196; 568 NW2d 883 (1998).

IF YOU VOLUNTARILY REDUCE YOUR INCOME YOUR CHILD SUPPORT COULD BE SET BASED ON YOUR HIGHER INCOME When assessing a parent’s ability to pay support, the trial court is not limited to consideration of a parent’s actual income, Reed v Reed, 265 Mich App 131, 163; 693 NW2d 825 (2005), rather, it may consider the parent’s voluntarily unexercised ability to earn. Ghidotti, supra at 198.

FACTORS THE COURT USES TO DETERMINE IMPUTED INCOME When evaluating whether there is an unexercised ability to earn, the following factors must be considered:

1) Prior employment experience;

2) education level;

3) physical and mental disabilities;

4) the presence of children of the marriage in the party’s home and its impact on the earnings of the parties;

5) availability of employment in the local geographical area;

6) the prevailing wage rates in the local geographical area;

7) special skills and training; or whether there is any evidence that the party in question is able to earn the imputed income. [Ghidotti v Barber, 459 Mich 189, 199; 586 NW2d 883 (1998), quoting Michigan Child Support Formula Manual, Tenth Rev, p 8.]

[The case above was prepared for media presentation, with changes. Only rely on the full case linked above after consulting counsel.]

EVENT: GCYD General Membership meeting Date: Saturday May 31, 2008 Time: 12:00 pm - 2:00 pm Repeats: This event repeats every month on the last Saturday until Wednesday December 31, 2008. Location: Firkin & Fox Pub Street: 1341 S Center Rd City State Zip: Burton, MI 48509 Phone: (810) 743-9530 Notes: This is located inside the Walli's East resturaunt.

Posted here by Terry Bankert ... 5/31/08
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