John G Graham v. Vivian a Graham ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JOHN G. GRAHAM, UNPUBLISHED
February 10, 2022
Plaintiff-Appellant,
V No. 355029
Marquette Circuit Court
VIVIAN A. GRAHAM, LC No. 17-055876-DO
Defendant-Appellee.
Before: GLEICHER, C.J., and SERVITTO and LETICA, JJ.
PER CURIAM.
In this postjudgment divorce action, plaintiff appeals by delayed leave granted1 the circuit
court’s orders initially awarding monthly spousal support of $950 to defendant through the age of
62, and subsequently denying plaintiff’s motion to terminate spousal support but reducing the
monthly amount to $550. We reverse and remand for further proceedings consistent with this
opinion.
I. FACTS
In November 2017, after 20 years of marriage, the parties divorced. Neither party left the
marriage with much property. The judgment of divorce did not initially award spousal support to
either party, but held the matter in abeyance pending a “[m]otion upon proper showing of material
changed circumstances from those existing at the time of entry of the within Judgment,” and further
stated that that “[i]n lieu of temporary spousal support, . . . Defendant shall have the right to reside
in the former marital home at no cost to her,” but that “[i]n the event that this arrangement becomes
unworkable . . . Defendant shall have the right to petition the Court requesting an award of spousal
support.”
1
Graham v Graham, unpublished order of the Court of Appeals, entered March 3, 2021 (Docket
No. 355029).
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After the divorce, pursuant to their agreement, defendant initially resided in the former
marital home along with plaintiff. Defendant did not pay rent and plaintiff did not pay spousal
support. Both parties remained employed as occupational therapists. As during their marriage,
plaintiff worked full time, or between 32 to 40 hours per week, and defendant worked part time,
between 20 and 25 hours per week. Defendant claimed longstanding health issues, including
severe anxiety, depression, and chronic fatigue, which limited her ability to work.
In September 2019, almost two years after the divorce, the parties agreed that their living
arrangement had become unworkable, and plaintiff asked defendant to move out of the former
marital home. Defendant then moved the trial court to establish spousal support, asserting that her
needs would drastically increase after vacating the home because she would now incur housing
costs, and that she could not afford suitable independent housing with her own limited income.
She also indicated that she planned to reside temporarily with her parents.
Plaintiff, who was 59 years old at the time of the spousal support hearing, opposed
defendant’s motion, indicating that defendant did not have a current need for support because she
would reside with her parents rent free, and earned sufficient income to cover her own living
expenses. Plaintiff further maintained that covering his monthly living expenses, including trying
to pay off his credit card debt, left him only $200 per month, which he wished to save for
retirement. He testified that he would have a difficult time paying more than $150 of spousal
support per month.
After conducting an evidentiary hearing, the trial court ordered plaintiff to pay monthly
spousal support of $950, finding, in part, as follows:
Here, the parties were married for approximately 20 years. Plaintiff is 58
years of age and Defendant is 56 years of age. Plaintiff and Defendant are both
employed by the same independent occupational therapist business . . . . Plaintiff
has been employed in that capacity for 20 years, and Defendant has been employed
for 31 years in total, but not with the same employer.
Defendant is employed on a part-time basis working approximately 20 to
25 hours per week over the last couple of years. She has not worked on a full-time
basis since 2001 when she suffered a broken back. [She] has been treating for
various health issues, including anxiety/depression and acute/chronic stress.
Although she has continued to work part-time, her doctor recommends that she
terminate her employment and apply for Social Security Disability. The Court was
also provided with evidence showing that Defendant is not capable of more than
part-time employment given her significant health issues, which have deteriorated.
Defendant’s gross earnings are approximately $3,000 per month.
Plaintiff, for the bulk of the marriage, was the primary wage earner working
on a full-time basis. Through August 31, 2019, Plaintiff had gross earnings of
approximately $6,640 per month. Plaintiff has no known health conditions and
appears to be in good physical health.
Both parties have similar monthly expenses in the neighborhood of $4,000
per month, although Defendant currently is not paying housing expenses. [Her]
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housing plans are to live in her parents’ unfinished basement in Autrain, Michigan
for the time being.
All-in-all, the Court concludes that Plaintiff shall pay spousal support in the
amount of $950 per month, which is just and reasonable under the circumstances
of this case and is payable from November 1, 2019. Spousal support shall run
through Defendant’s age of 62, but is modifiable upon a material change in
circumstances.
After the COVID-19 crisis struck, plaintiff moved the trial court to terminate or modify his
spousal support obligation in light of his reduced income. Defendant opposed the motion. After
conducting an evidentiary hearing, the court ordered a temporary reduction in monthly support to
$550, effective May 1, 2020. The court found that plaintiff had experienced a decrease in his gross
earnings as the result of a COVID-related reduction in his work hours, which was a material change
in circumstances warranting a temporary reduction. Otherwise, the court adopted its prior findings
and added no new ones regarding the spousal support factors, finding that many of the factors,
including the parties’ age, health, financial needs, and ability to work, remained unchanged. The
court further decreed that, after six months, defendant might petition the court for further review
to determine if an upward adjustment was warranted.
Plaintiff now appeals both spousal support orders.
II. SPOUSAL SUPPORT PROVISION
Plaintiff first argues that the trial court erred in awarding spousal support in the first
instance because, under the terms of the divorce judgment, defendant was initially required to
demonstrate a material change in circumstances, but could not do so because she planned to reside
with her parents, at no cost, after vacating the former marital home. We disagree.2
In general, “judgments are to be construed like other written instruments.” 46 Am Jur 2d,
Judgments, § 66. “The unambiguous terms of a judgment, like the terms of a written contract, are
to be given their usual and ordinary meaning, and the legal effect of a judgment must be declared
in light of the literal meaning of the language used.” Id. “When looking at the words of a judgment
2
The parties dispute whether this issue was preserved for appellate review. Generally, to preserve
an issue for appellate review, it must be raised before the trial court. Glasker-Davis v Auvenshine,
333 Mich App 222, 227-228; 964 NW2d 809 (2020). We agree that the parties did not specifically
raise the issue regarding the proper interpretation of the judgment’s spousal support provision with
respect to whether defendant was required to show a material change in circumstances to justify
support once their joint living arrangement became unworkable. Nevertheless, we may consider
an issue even if unpreserved, id. at 228, and here elect to do so. Our review of unpreserved issues
is limited to plain error affecting substantial rights. Demski v Petlick, 309 Mich App 404, 426-
427; 873 NW2d 596 (2015). “To avoid forfeiture under the plain error rule, three requirements
must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and
the plain error affected substantial rights.” Id. at 427 (quotation marks and citations omitted).
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and order in order to construe them, courts look at the entire order and construe the judgment as a
whole to determine the court’s intent.” Id. “A judgment should be construed . . . in such a way
that will give force and effect to every word of it, if possible, and make its several parts consistent,
effective, and reasonable.” Id.
There is no dispute that, almost two years after the parties divorced, their joint living
arrangement became “unworkable,” thereby triggering defendant’s “right,” under the divorce
judgment, to petition the trial court for spousal support. However, the parties dispute whether, in
that event, defendant was required to initially demonstrate a material change in circumstances to
justify spousal support. The spousal support provision at issue provides as follows:
IT IS HEREBY ORDERED AND ADJUDGED that neither party shall
pay spousal support to the other at the present time and the issue of spousal support
shall be held in abeyance. Either party may present this issue to the Court at a later
date by way of Motion upon proper showing of material changed circumstances
from those existing at the time of entry of the within Judgment. In lieu of temporary
spousal support, the parties have agreed that the Defendant shall have the right to
reside in the former marital home at no cost to her following the dissolution of the
parties’ marriage. In the event that this arrangement becomes unworkable, for
whatever reason, the Defendant shall have the right to petition the Court requesting
an award of spousal support at that time.
First, this language clearly evidences the trial court’s intent to reserve the issue of spousal
support for future determination if needed. Black’s Law Dictionary (10th ed), defines the term
“abeyance” as “[t]emporary inactivity; suspension.”3 The judgment thus clearly and un-
ambiguously reflects the intent to temporarily suspend the issue of spousal support.
The provision then sets forth the circumstances under which the parties might request
spousal support. It first provides that either party may present the issue at a later date upon a
showing of material changed circumstances. This comports with the general legal requirement
that “[t]he modification of an award of spousal support . . . be based on new facts or changed
circumstances arising after the judgment of divorce,” and that “[t]he party moving for modification
has the burden of showing such new facts or changed circumstances.” Gates v Gates, 256 Mich
App 420, 434; 664 NW2d 231 (2003). The provision additionally preserves defendant’s “right”
to petition the court for spousal support in the event the parties’ agreed-upon joint living
arrangement, in lieu of temporary support, became unworkable. The definition of “right” in
Black’s Law Dictionary (10th ed) includes “[s]omething that is due to a person by just claim, legal
guarantee, or moral principle,” and “[a] power, privilege, or immunity secured to a person by law.”
Merriam Webster’s Collegiate Dictionary (11th ed) provides a similar definition, “the power or
privilege to which one is justly entitled,” or “something to which one has a just claim.” The court’s
use of the term “right” thus clearly indicates the intent that defendant retain the prerogative to
claim spousal support in the event that the parties’ joint living arrangement became unworkable.
3
This Court may refer to dictionary definitions to determine the ordinary meaning of a term. See
Cole v Auto Owners Ins Co, 272 Mich App 50, 53; 723 NW2d 922 (2006).
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See MCL 552.13(1) (permitting the court to award alimony); MCL 552.23(1) (the court may award
spousal support that is just and reasonable under the circumstances).4 At issue is whether, under
the judgment, defendant was required to show a material change in circumstances, beyond that the
living arrangement became unworkable, in order to request spousal support.
The judgment plainly distinguished the parties’ general prerogative to raise the issue of
spousal support upon a showing of materially changed circumstances, i.e., support modification,
from defendant’s specific “right” to petition for spousal support in the event their agreed-upon
living arrangement became unworkable. Unlike the language generally permitting either party to
present the issue of spousal support by motion “upon proper showing of material changed
circumstances,” the language specific to defendant’s right to request spousal support in the event
their living arrangement became unworkable did not otherwise explicitly condition that right upon
a showing of materially changed circumstances. As defendant argues, construing the provision in
a manner that requires her to demonstrate a material change in circumstances would not give effect
to the provision’s last sentence, “In the event that this arrangement becomes unworkable, for
whatever reason, the Defendant shall have the right to Petition the Court requesting an award of
spousal support at that time.” This is because the provision’s earlier language already permitted
either party to present the issue of spousal support “upon a proper showing of material changed
circumstances . . . .” Accordingly, if defendant were required to show a material change in
circumstances beyond that the parties’ living arrangement became unworkable, there would be no
need to provide her with a separate and distinct “right” to petition the court for support in that
specific event. Plaintiff’s interpretation would render the latter provision meaningless. Therefore,
construing the judgment in a manner that gives force and effect to all its parts, and makes those
parts consistent, effective, and reasonable, see 46 Am Jur 2d, Judgments, § 66, we conclude that
the trial court clearly intended that the issue of spousal support for defendant would ripen if and
when the parties’ agreed-upon living arrangement in lieu of spousal support became unworkable,
without defendant’s having to make a separate showing of a material change in circumstances.
This construction comports with a trial court’s prerogative to reserve the issue of spousal
support for future determination. See McCoy v McCoy, 317 Mich 478, 480-482; 27 NW2d 62
(1947).5 More specifically, this Court has held that, “where the question of alimony is reserved,
no change of circumstances is required as a prerequisite to an award of alimony at a later time.”
McCarthy v McCarthy, 192 Mich App 279, 283; 480 NW2d 617 (1991). That is, “a change in
circumstances is a prerequisite to the modification of an alimony award only when an award has
in fact been made.” Id., citing Battisti v Battisti, 24 Mich App 262, 264; 180 NW2d 64 (1970). In
this case, because the divorce judgment did not include a spousal support award, but rather
explicitly reserved the question pending the eventuality that the parties’ living arrangement
4
“Alimony” and “spousal support” are interchangeable terms, but “[t]he phrase ‘spousal support’
now is often employed in statutes and court rules.” Rickner v Frederick, 459 Mich 371, 372 n 1;
590 NW2d 288 (1999).
5
MCR 3.211(B)(4) specifically directs the trial court to include “a provision reserving or denying
spousal support, if spousal support is not granted” in the divorce judgment.
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became unworkable, defendant needed show no other change of circumstances in order to ask the
court exercise that reservation.
Nevertheless, we agree with defendant that the parties’ termination of their agreed-upon
living arrangement itself constituted a material change in circumstances, because that development
left defendant in need of her own housing. Although plaintiff protests that defendant planned to
reside with her parents upon vacating his home, defendant’s testimony indicated that neither she,
nor her parents, intended for that arrangement to be a permanent one. We thus conclude that
plaintiff has failed to bring to light any plain error affecting his substantial rights with regard to
the interpretation of the divorce judgment’s spousal support provision.
III. INITIAL SPOUSAL SUPPORT AWARD
Plaintiff next argues that the trial court’s dispositional ruling awarding defendant $950 per
month was inequitable, on the grounds that the court’s underlying findings with respect to
defendant’s needs and his ability to pay were clearly erroneous. We agree, in part.
It is within the trial court’s discretion to award spousal support, and we
review a spousal support award for an abuse of discretion. An abuse of discretion
occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes. The object in awarding spousal support is to balance the
incomes and needs of the parties so that neither will be impoverished; spousal
support is to be based on what is just and reasonable under the circumstances of the
case. We review for clear error the trial court’s factual findings regarding spousal
support. A finding is clearly erroneous if, after reviewing the entire record, we are
left with the definite and firm conviction that a mistake was made. If the trial
court’s findings are not clearly erroneous, we must determine whether the
dispositional ruling was fair and equitable under the circumstances of the case. We
must affirm the trial court’s dispositional ruling unless we are convinced that it was
inequitable. [Loutts v Loutts, 298 Mich App 21, 25-26; 826 NW2d 152 (2012)
(quotation marks and citations omitted).]
Plaintiff argues that the trial court clearly erred in its findings regarding his ability to pay,
defendant’s needs and ability to work, and the parties’ health, and that, consequently, the monthly
support award of $950 was inequitable. He asserts that the court overestimated his ability to pay
spousal support by failing to take into account that his take-home pay was considerably less than
his gross earnings, and by underestimating his living expenses. At the same time, according to
plaintiff, the court overestimated defendant’s need for support by underestimating her take-home
pay, failing to take into account that she worked only part time and thus could potentially earn
more money, and drastically overstating her expenses because she planned to reside with her
parents rent free after vacating the former marital home.
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“Spousal support does not follow a strict formula.” Loutts, 298 Mich App at 30. Instead,
“Michigan’s statute governing spousal support favors a case-by-case approach to determining
spousal support.” Id. at 29.6 A court should consider several factors, including the following:
(1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
the abilities of the parties to work, (4) the source and amount of property awarded
to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony,
(7) the present situation of the parties, (8) the needs of the parties, (9) the parties’
health, (10) the prior standard of living of the parties and whether either is re-
sponsible for the support of others, (11) contributions of the parties to the joint
estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
a party’s financial status, and (14) general principles of equity. [Id. at 31 (quotation
marks and citations omitted.]
“The trial court should make specific factual findings regarding the factors that are relevant to the
particular case.” Id. at 32 (quotation marks and citation omitted). Again, “[t]he primary purpose
of spousal support is to balance the parties’ incomes and needs so that neither party will be
impoverished, and spousal support must be based on what is just and reasonable considering the
circumstances of the case.” Id. See also, MCL 552.23(1); Sands v Sands, 442 Mich 30, 36; 497
NW2d 493 (1993) (“a judge’s role is to achieve equity”).
When, as here, the trial court has reserved the issue of spousal support, the court “should
consider the same factors used in making the initial alimony decision.” McCarthy, 192 Mich App
at 284. Any changes in the parties’ positions “are important insofar as they dictate the parties’
needs and ability to pay at the end of the period.” Id. at 284. The spousal support decision “must
be made according to the circumstances of the parties at that time.” Id. at 283.
We find no abuse of discretion in the trial court’s determinations that defendant had a need
for spousal support, and that plaintiff had the ability to pay some level of it. The evidence
established that, upon termination of the parties’ agreed-upon living arrangement, defendant would
no longer have a place to live and could not afford suitable, independent housing with her own
limited income. Further, the evidence established that defendant’s significant health issues
6
MCL 552.23(1) governs spousal support and provides as follows:
Upon entry of a judgment of divorce or separate maintenance, if the estate
and effects awarded to either party are insufficient for the suitable support and
maintenance of either party and any children of the marriage who are committed to
the care and custody of either party, the court may also award to either party the
part of the real and personal estate of either party and spousal support out of the
real and personal estate, to be paid to either party in gross or otherwise as the court
considers just and reasonable, after considering the ability of either party to pay and
the character and situation of the parties, and all the other circumstances of the case.
See also MCR 3.206(A)(5) (a party requesting spousal support “must allege facts sufficient to
show a need for such support and that the other party is able to pay”).
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precluded her from working more than part time, and that, without support, she could not meet her
basic needs. In light of defendant’s health issues, her limited income, and her need in the near
term for independent housing, defendant clearly demonstrated a need for spousal support.
On the other hand, plaintiff’s financial situation was relatively stable, he was not currently
hampered by health issues that impacted his ability to work, and he would continue earning income
from his full-time employment, the take-home pay from which was sufficient to cover his own
monthly living expenses, and leave him with a small surplus. In short, we agree that the evidence
generally showed that plaintiff had an ability to pay some level of support, while defendant,
especially considering pending need for independent housing, would be left impoverished without
support. Therefore, the trial court did not abuse its discretion in determining that it was just and
reasonable to award defendant some level of spousal support.
We disagree with plaintiff’s argument that the trial court clearly erred in finding that
defendant was not capable of working more than part time. To the contrary, the evidence
convincingly showed that defendant had significant and debilitating health issues with both physi-
cal and emotional symptoms, that precluded her from working more than part time. Defendant
testified about her significant and fairly longstanding health and emotional issues and her resulting
inability to work more than 20 to 25 hours per week; she explained that 20 hours was “pushing it.”
Plaintiff acknowledged defendant’s health struggles, but opined that she was capable of working
longer hours. Defendant, however, testified about how her recent attempt to increase her hours to
full time caused severe anxiety and suicidal ideations that resulted in her admission to a psychiatric
hospital. And, significantly, two treating physicians attested to defendant’s health and emotional
issues and recommended that she further reduce her workload, or stop working altogether and
pursue disability assistance. This evidence clearly supported the trial court’s finding that
defendant was not capable of working more than part time. Although plaintiff disagreed, the
credibility of defendant’s testimony, and of the medical evidence attesting to her limited ability to
work because of her health issues, was for the trial court to assess, not this Court. See Woodington
v Shokoohi, 288 Mich App 352, 355; 792 NW2d 63 (2010) (“Special deference is given to the trial
court’s findings when they are based on the credibility of the witnesses.”). And, while plaintiff
also argues that defendant could possibly obtain a different job that paid for all the hours she
actually worked, defendant testified that she had sought other opportunities within the occupational
therapist field, but that potential employers had not expressed any interest, and that she would not
earn as much in other fields. This testimony supported the conclusion that defendant’s ability to
obtain different, more lucrative, employment was limited.
We also disagree with plaintiff’s assertion that the trial court underestimated defendant’s
income. Although defendant’s testimony supported the court’s finding that she had gross earnings
of approximately $3,000 per month, her pay stubs revealed that her average year-to-date gross
monthly wages were, in actuality, higher. Defendant’s average monthly take-home pay, after
accounting for withheld taxes, disability insurance, and mileage and phone reimbursements, was
in the range of $3,000.7 And, defendant’s net pay would more accurately reflect her income
7
Defendant’s pay stubs reflect that her 2019 year-to-date gross earnings through July 31 were
$26,863 or $3,838 per month ($26,863 divided by 7 months). However, defendant did not include
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actually available to support her needs, especially considering the lack of any evidence that she
had other sources of income to rely on. Because defendant’s net income fairly approximated the
figure the trial court used for reference, any error in the court’s determination of her gross earnings
was harmless.
We also disagree with plaintiff’s argument that the trial court erred by considering
defendant’s anticipated housing costs in evaluating her needs because she planned to reside with
her parents after vacating the former marital home. To the contrary, the evidence established that
defendant had a need in the near term to obtain independent housing because she could no longer
reside in plaintiff’s home, but that she did not have the means to obtain suitable rental housing on
her own. Defendant testified concerning her efforts to locate affordable rental housing, and that
she was having a “really hard time” because suitable housing rented for more than she could then
afford, and that, in order to make decisive housing plans, she needed to know how much her
spousal support would be. Her plan in the meantime was to live in her parents’ unfinished
basement or guest bedroom until she was able to obtain her own housing. There was no testimony
that defendant could rely on her parents for permanent housing; she testified that she could not
stay there indefinitely, did not want to, and also that living at her parents’ house would add
significant mileage to her work commute. This testimony sufficiently established that, at this
juncture, residing with her parents was intended to be a temporary response to her no longer
residing in the former marital home while unable to afford independent suitable housing without
support.8 Therefore, we find no error in the trial court’s consideration of defendant’s anticipated
housing costs in assessing her need for spousal support, or in its finding that she had $4,000 in
monthly expenses with housing, which was at the high end of the range supported by the evidence.
We reject plaintiff’s attempt to analogize Esslinger v Esslinger, 9 Mich App 11, 18-19; 155
NW3d 702 (1967) with the instant case in support of his argument that the trial court erred in
considering defendant’s future housing costs in assessing her needs. The facts of Esslinger are
her taxes or disability insurance premiums in her reporting of monthly expenses, making it
appropriate to subtract those amounts from her gross to arrive at her net pay. Her pay stubs showed
year-to-date deductions of $6,052 for withheld taxes and $1,080 for disability insurance, and thus
a net pay of $19,731 or $2,819 per month ($19,731 divided by 7 months). Her pay stubs also
showed that she was paid year-to-date mileage and phone reimbursements of $2,102 and $225,
respectively. Adding her reimbursements to her year-to-date net pay yields a take-home pay of
$22,058 or $3,151 per month. Because she included her car and phone expenses in her reporting
of monthly expenses, it was appropriate to include these reimbursements in her disposable income,
which better reflects her income available to cover her needs. Income for spousal support purposes
may include items other than net taxable income. See Torakis v Torakis, 194 Mich App 201, 204-
205; 486 NW2d 107 (1992); Boyer v Boyer, 30 Mich App 623, 626; 186 NW2d 842 (1971) (gross
income is not the only consideration in determining a party’s ability to pay).
8
It is apparent that the trial court appropriately recognized, and considered, the temporary nature
of defendant’s immediate housing plan, having acknowledged that she was not currently paying
housing expenses, and that her “housing plans are to live in her parent’s unfinished basement in
Autrain, Michigan for the time being.”
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clearly distinguishable. In Esslinger, the husband speculated about a medical issue that might
reduce his future earnings in 10 to 15 years. Id. at 15, 18. This Court held that “[t]he intent of the
legislature and the courts clearly is to allow for future modification of divorce decrees when in fact
the husband’s income has been diminished,” noted that there was “no evidence to show any danger
of severe reduction of his income in the near future,” and stated the relevant consideration was
“the present and immediate prospects for health of the husband.” Id. at 18-19. In contrast, in the
instant case, the evidence indicated that defendant needed housing in the near term, and that her
ability to obtain independent housing depended on the amount of spousal support awarded.
Further, if defendant’s housing circumstances were to materially change, so that her temporary
residence with her parents became an indefinite or permanent situation, thereby potentially
eliminating her need for independent housing, plaintiff would be entitled to petition the court for
modification of spousal support.9 See Gates, 256 Mich App at 434-435; MCL 552.28(1).
On this record, we conclude that the trial court did not clearly err in its findings regarding
defendant’s needs. In awarding defendant monthly support of $950, it is apparent that the trial
court attempted to cover those needs, including for independent housing. Specifically, the court
found that her monthly income was $3,000, which approximated her average take-home pay, and
that her monthly expenses, including anticipated housing costs, totaled approximately $4,000.
Thus, adding the court-ordered monthly support of $950 to defendant’s income of $3,000 would
result in an estimated $3,950 to cover her needs, leaving her with, at worst, only a slight shortfall.
However, it is not apparent from its ruling that the trial court properly balanced plaintiff’s
actual ability to pay that support against the parties’ respective needs. See MCL 552.23(1). The
court did not make any specific findings regarding plaintiff’s actual ability to pay. See MCL
552.23(1); Loutts, 298 Mich App at 31-32. And, although the court’s findings that plaintiff had
monthly gross earnings of $6,640, which was supported by his testimony and pay stubs,10 and that
he had monthly expenses of approximately $4,000, which was at the low end of the range
supported by the evidence, were not clearly erroneous, we agree with plaintiff that his gross
earnings did not accurately reflect the income actually available for his needs, including support
obligations. The court should have considered his actual take-home pay.
In determining whether to award spousal support, the relevant criterion is plaintiff’s ability
to pay, in light of the character and situation of the parties, and all the other circumstances of the
case. See MCL 552.23(1); MCR 3.206(A)(5). In Boyer v Boyer, 30 Mich App 623, 626; 186
NW2d 842 (1971), this Court explained as follows:
Appellant’s contention that the trial court erred when it considered gross
income rather than net income is neither supported by the record nor relevant.
Ability to pay is the relevant criterion in determining whether alimony should be
increased. The trial court’s opinion makes it clear in no uncertain terms that gross
9
As addressed below, defendant was still residing with her parents at the time of the hearing on
plaintiff’s motion for support modification, at which time it would have been appropriate for the
trial court to reassess her housing needs.
10
Plaintiff admitted that his gross earnings for 2019 through August 31 totaled approximately
$53,198 or $6,650 per month ($53,198 divided by 8 months).
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income is not, and was not, the only consideration determining plaintiff’s ability to
pay.
Therefore, while the trial court was not required to use specifically plaintiff’s net income or gross
income in determining his ability to pay, it must consider his ability to pay.
Initially, while plaintiff takes issue with the trial court’s finding that he “has no known
health conditions and appears to be in good physical health,” in light of his chronic back pain,
there is no testimony that his condition presently limited his ability to work so as to impact his
income and, consequently, his ability to pay support. Nor did plaintiff testify that he planned, in
the near term, to reduce his workload from full time because of his back pain. Instead, he testified
that, despite his pain, he continued to work full time and planned to do so until he retired. Again,
it is the current circumstances that dictate the parties’ needs and ability to pay and so the trial court
properly did not consider the possibility that plaintiff’s back condition might worsen in the future
so as to preclude him from working full time. See Esslinger, 9 Mich App at 18-19. And, if
plaintiff’s ability to work should materially change in the future, he would then be entitled to
petition the court for a modification of support. See Gates, 256 Mich App at 434-435; MCL
552.28. Accordingly, any error in the court’s finding regarding plaintiff’s health was harmless.
See MCR 2.613(A).
However, we agree with plaintiff that the trial court, by relying on his gross earnings,
overstated his income and, consequently, his ability to pay. Plaintiff points out that his monthly
take-home pay was significantly less than the $6,640 gross earnings the trial court cited, and thus
presumably relied upon. Referring to his June 2019 take-home pay of $3,862, and his testimony
that his monthly net varied significantly but averaged $3,700 to $3,800, plaintiff argues that, in
actuality, he took home only “roughly enough” to cover his own monthly living expenses of about
$4,000. Although it is apparent from his pay stubs that plaintiff’s average monthly take-home pay
was actually greater than he asserted, and was likely sufficient to cover his own estimated living
expenses, we agree that he would not be able to additionally cover $950 of court-ordered spousal
support without incurring a monthly deficit.11 Therefore, plaintiff’s take-home pay—the income
actually available for his needs—was significantly less than the $6,640 gross earnings to which
the court referred when explaining its spousal support decision.
11
Plaintiff’s pay stubs reflect that he had 2019 year-to-date gross earnings through August 31 of
$53,198 or $6,650 per month. Accounting for the year-to-date deductions from his gross of $1,089
for health insurance premiums, $1,596 for voluntary contributions to an employer-sponsored IRA,
$13,767 for withheld taxes, $1,054 for disability insurance premiums, and $85 for United Way
contributions, and his phone reimbursement of $255, leaves a projected annual net of $35,862, or
a monthly average to that date of $4,483. It was appropriate to reduce his gross earnings for taxes,
insurance, and IRA contributions because it does not appear that he included these items in his
expenses, and to include his phone reimbursement because his phone bill was listed as a monthly
expense. Thus, after covering his own estimated monthly living expenses of $4,000, plaintiff
would be left with an estimated $483 to cover $950 of court-ordered spousal support.
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Given the disparity between plaintiff’s gross earnings and take-home pay, we agree that
gross earnings did not fully reflect the extent of plaintiff’s ability to pay spousal support. The trial
court did not identify any other sources of current income from which plaintiff could draw to cover
a shortfall. He testified that, in a good month, he has a surplus of $200 after paying his living
expenses, and neither his retirement funds, nor his house, produced currently available income; he
further testified that he might need to sell his house to pay spousal support. Plaintiff’s bank
accounts had only minor balances at the time of the hearing. We note that the trial court did not
discredit any of that testimony or evidence. Generally, “a party should not have to invade property
for support . . . .” Richards v Richards, 310 Mich App 683, 692; 874 NW2d 704 (2015) (quotation
marks and citation omitted). Although this Court, in dicta, “has indicated that a court could allow,
but need not require, a party to invade the corpus of its assets to pay alimony,” Torakis v Torakis,
194 Mich App 201, 204-205; 486 NW2d 107 (1992), citing Zecchin v Zecchin, 149 Mich App 723,
735; 386 NW2d 652 (1986), there is no indication in this case that the trial court intended that
either party invade his or her limited assets for purposes of support. Therefore, we agree with
plaintiff that, in this case, the trial court, by relying on his gross earnings, likely overstated his
income, and consequently, his ability to pay support.
It may be that no apportionment of available income would avoid a monthly shortfall
between the parties. Although the trial court may have intended that plaintiff invade his assets to
cover an anticipated shortfall, and thought that equitable in light of plaintiff’s superior earnings
capability, see MCL 552.23(1), the court did not so indicate. Because the court did not make
findings relating particularly to plaintiff’s income actually available to cover his own needs along
with spousal support, it is not apparent on the record that that the support award was fair and
equitable. For these reasons, we agree that the trial court should have given consideration to
plaintiff’s net income in assessing his ability to pay support, and thus remand for a redetermination
of spousal support.
Additionally, we agree with plaintiff that any spousal support award should have been
payable from the time defendant vacated the former marital home. Again, the divorce judgment
allowed defendant to reside in the former marital home at no cost in lieu of receiving spousal
support. Thus, so long as she continued to reside in the home, at no cost, plaintiff was not required
to pay support. The trial court awarded defendant spousal support payable from November 1,
2019, but, according to plaintiff, defendant did not move out until December 23, 2019. The record
does not indicate definitively when defendant actually vacated the home, and the trial court offered
no such finding.12 Thus, remand is also necessary to ascertain that date, and to adjust the spousal
support award accordingly.
IV. SUPPORT MODIFICATION
Plaintiff next argues that the trial court abused its discretion by denying plaintiff’s motion
to terminate spousal support, and instead ordering a temporary reduction in monthly support from
$950 to $550, because the court failed to reassess defendant’s need for support. We agree.
12
We note that defendant herself acknowledged in her proposed findings provided to the trial court
that spousal support should begin on the date she vacated the home.
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“The modification of an award of spousal support must be based on new facts or changed
circumstances arising after the judgment of divorce.” Gates, 256 Mich App at 434. “The party
moving for modification has the burden of showing such new facts or changed circumstances.”
Id. at 434. It “requires an evaluation of the circumstances as they exist at the time modification is
sought.” Laffin v Laffin, 280 Mich App 513, 519; 760 NW2d 738 (2008).
It is apparent from the record that, despite the uncertainties with regard to plaintiff’s future
workload, his ability to pay had decreased from the previous support hearing because of a reduction
in his hours worked resulting from the COVID-19 pandemic, which increased his monthly deficit,
and warranted a reduction in support. Plaintiff expected a reduced workload from his normal 85
hours per twice-monthly pay period to 60 hours, while his monthly living expenses remained at
approximately $4,000. Therefore, the court properly determined that a reduction in support was
in order.
However, the spousal support decision necessarily required not only an assessment of
plaintiff’s ability to pay, but also an assessment of defendant’s current needs. MCL 552.23(1);
Richards, 310 Mich App at 691. The evidence revealed that defendant’s workload, and thus, her
income, was not as substantially impacted by the COVID-19 crisis. And defendant testified at the
hearing, held approximately five months after the court’s entry of its initial support order, that she
was still residing with her parents. Because the initial support award was based on defendant’s
need to obtain independent housing, and she still resided with her parents, we conclude that the
court should have reevaluated her current need for housing in deciding whether to terminate or
modify support. Although the court appropriately considered plaintiff’s decrease in wages, it
failed to evaluate defendant’s then-existing need for spousal support to obtain independent
housing, and thus failed to properly balance plaintiff’s reduced ability to pay against defendant’s
needs. MCL 552.23(1); Richards, 310 Mich App at 691.
For these reasons, we reverse the trial court’s spousal support orders and remand for a
determination anew of the proper amount of support. “On remand, the trial court must consider
the relevant factors as they pertain to the parties and make specific findings of fact that justify its
ultimate award of spousal support . . . keep[ing] in mind that its goal is to reach a result that is just
and reasonable under the circumstances and that balances the incomes and needs of the parties in
a way that will not impoverish either party.” Myland v Myland, 290 Mich App 691, 699; 804
NW2d 124 (2010) (quotation marks, citation, and alteration omitted).
Reversed and remanded. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Deborah A. Servitto
/s/ Anica Letica
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