Beverly v. Beverly , 112 Mich. App. 657 ( 1981 )

112 Mich. App. 657 (1981) 317 N.W.2d 213

BEVERLY
v.
BEVERLY.

Docket No. 50389.

Michigan Court of Appeals.

Decided December 17, 1981.

Professional Legal Centers, P.C. (by Mary Beth Leija), for plaintiff.

Gerald S. Surowiec, for defendant.

Before: D.F. WALSH, P.J., and D.C. RILEY and R.D. KUHN,^[*] JJ.

PER CURIAM.

Defendant appeals from a circuit court order abating child support and canceling arrearages owed by plaintiff under a judgment of divorce.

The judgment was entered on March 20, 1975. Custody of two minor children was awarded to the plaintiff mother. Defendant father was ordered to pay child support in the amount of $40 per child per week. Immediately prior to the entry of the judgment, plaintiff and defendant were each earning approximately $19,000 per year.

On June 10, 1977, the judgment was modified to provide that defendant be given custody of the children. Plaintiff was ordered to pay child support in the amount of $22 per child per week. On April 27, 1978, the judgment was modified again to provide that plaintiff pay support in the amount of $25 per child per week, retroactive to November 25, 1977. On August 2, 1979, the judgment was modified for a third time. This time the court canceled arrearages which had accrued under the judgment and relieved the plaintiff of her child support obligation as of June 16, 1979. Defendant's motion for rehearing was granted on November 9, 1979.

At the rehearing, plaintiff mother testified that she was employed with the Pontiac Board of Education at a salary of $19,000 per year. Plaintiff stated that her monthly rent for an apartment amounted to $395 and that her debts were "way, way above what [she could] handle". She also indicated that she had health problems due to an injury from a car accident in 1978. Plaintiff then drove a 1979 automobile.

Defendant father testified that he was employed as the Assistant Superintendent of Inkster Public Schools and earned approximately $31,000 per year. Defendant had remarried since the divorce and his wife was a physician who earned approximately $50,000 per year. Defendant testified that he was then living in a house purchased for $120,000, of which $90,000 was still owning. Defendant and his new wife also owned a 1977 Oldsmobile and a 1979 Cougar. Payments were being made on both of these vehicles.

At the conclusion of the hearing, the court reaffirmed the order which relieved plaintiff of her support obligation and canceled arrearages owed by plaintiff. The court found that a change in circumstances had occurred based on defendant's increase in earnings and his second wife's earnings of $50,000. The court also noted defendant's $120,000 residence and the two automobiles owned by defendant and his new wife.

In rendering its decision the court stated:

"There has been a change in circumstances as far as his [defendant's] earnings are concerned. The records reflect that his present earnings are approximately $30,000 a year and his present wife's earnings are $50,000 a year. That makes a joint income of approximately $80,000 a year.

"They have purchased a home two years ago which he testified to in the amount of $120,000.

"Both he and his wife have a 1977 Oldsmobile and a 1979 Cougar.

"I think that in view of the defendant's present income and the circumstances under which he resides that the plaintiff should not be required to contribute toward the support of the two minor children."

Defendant argues on appeal that the trial court abused its discretion in ruling that the plaintiff should be relieved of her obligation to contribute toward the support of the two minor children solely because of the defendant's increase in income and generally improved financial status resulting partially from his remarriage. We agree and remand for a new hearing.

Both parents are obligated to support a minor child. MCL 722.3; MSA 25.244(3). When granting a divorce, a court has the jurisdiction to award custody of minors to either party and "may require either parent to pay such allowance as may be deemed proper for the support of each child * * *", MCL 552.17a; MSA 25.97(1). The court, therefore, may fashion a child support order based upon the relative ability of each parent to pay. Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976), Watkins v Springsteen, 102 Mich App 451; 301 NW2d 892 (1980).^[1]

The party petitioning for a modification of an order for child support bears the burden of establishing a change in circumstances that would justify an alteration of the divorce judgment. McCarthy v McCarthy, 74 Mich App 105, 108; 253 NW2d 672 (1977). An increase in the custodial parent's income and the general improvement in that parent's financial status by virtue of a favorable remarriage is not, in itself, a sufficient change in circumstances to relieve the noncustodial parent totally of the obligation to contribute to the support of the children. See McCarthy v McCarthy, supra, 108-109.^[2] In determining whether there has been a change in circumstances all relevant factors must be considered. McCarthy v McCarthy, supra, 109, Cymbal v Cymbal, 43 Mich App 566-567; 204 NW2d 235 (1972).

Whether the noncustodial parent, in this case the plaintiff wife, should be relieved, either totally or partially, of her child support obligation depends primarily upon her own financial status, her employment or employability, her health and any other factor or factors which bear upon her earning capacity. The plaintiff wife, however, should not be relieved entirely of her obligation to support the children solely because the defendant husband may happen, for whatever reason, to be financially able to support the children without assistance.

This is not to say that the trial court is precluded from considering the defendant husband's financial status, including any improvement therein which may have resulted from his remarriage. On the contrary, the court should consider any change in the relative capacity of each party to contribute to the support of the children. While the defendant's second wife is under no obligation to support the children of the first marriage, her financial contributions in the new household alleviate, to some extent at least, the defendant's support obligations there. The defendant's remarriage, therefore, is one of the factors which the trial court may consider in determining the share of child support that each party should contribute.

Reversed and remanded for a new hearing consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] In Charlton v Charlton, supra, the Supreme Court affirmed the support provisions of a judgment of divorce which ordered a defendant husband to pay three quarters and the plaintiff wife to pay one quarter of the $60 support requirement because of the 3 to 1 ratio of defendant's income to plaintiff's income. In Watkins v Springsteen, supra, the Court ruled that, although the plaintiff wife's improved financial condition was not a legally significant ground for total termination of the defendant husband's child support obligation, it was a relevant factor in determining whether a change of circumstances had occurred which was sufficient to require an abatement pro tanto of a previously ordered support payment.

[2] In McCarthy v McCarthy, supra, the Court found error in a modification of a support order which increased the amount of support payable by the noncustodial parent based totally on that parent's increase in salary. The Court ruled that all relevant factors must be considered in determining whether there has been a change in circumstances. See also Cymbal v Cymbal, supra, and Stros v Stros, 25 Mich App 154, 156; 181 NW2d 26 (1970).