Mai Lam v. Sullivan Do ( 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
MAI LAM, UNPUBLISHED
November 22, 2022
Plaintiff-Appellee,
v No. 354174
Wayne Circuit Court
Family Division
SULLIVAN DO, LC No. 19-100793-DM
Defendant-Appellant.
Before: GLEICHER, C.J., and SERVITTO and YATES, JJ.
PER CURIAM.
Following binding domestic relations arbitration, Sullivan Do was displeased with the
results. He cited errors in the arbitrator’s calculation of Mai Lam’s income for child support
purposes and sought credit in the property division for supporting Lam in her postdoctoral work.
The arbitrator rejected these points and a final divorce decree entered. We affirm in part, but
remand for the recalculation of child support based on Lam’s previous three years of income
pursuant to the 2017 Michigan Child Support Formula (MCSF) 2.02(B).
I. BACKGROUND
Mai Lam and Sullivan Do were married in 2006, five months after Lam earned a Ph.D. in
biomedical engineering. Do had earned a bachelor’s degree in engineering and was working in
his field at that time, earning $91,000 a year. From 2006 to 2008, Lam worked in a Michigan
research laboratory, earning only $12 an hour. The couple then moved to California so Lam could
accept a position as a postdoctoral scholar at Stanford University. Lam earned $48,000 annually
at this post. Do initially took a pay cut to work at DynaSystems in California, but later was hired
in sales for Harman International, earning nearly $139,000 after commissions in his first year. In
2013, Lam and Do returned to Michigan. 2013 also marked the birth of Lam’s and Do’s only
child—ED. Lam accepted a position as a professor at Wayne State University. Her salary was
disputed in these proceedings. Do took a demotion and pay cut but was able to continue his
employment with Harman. In 2019, he earned $121,782.
-1-
The parties separated in 2018, and Lam filed for divorce in January 2019. Issues of
property division, parenting time, and child support were submitted to arbitration. The main points
of contention were Lam’s annual salary as a Wayne State professor and whether Do should be
compensated for supporting Lam while she earned a higher degree as contemplated by Postema v
Postema, 189 Mich App 89; 471 NW2d 912 (1991). At Wayne State, Lam teaches classes during
the fall and winter semesters, earning $106,127. The university requires Lam to conduct research
fulltime during the summer. The university does not provide a salary for that time, however.
Rather, Lam is required to secure grants. Lam did not secure her first grant until 2019, totaling
$34,996. This increased Lam’s 2019 income to $143,022. Do contended that Lam’s income for
child support purposes should be calculated based on the post-grant figure. The arbitrator
disagreed. Using Lam’s pre-grant 2019 income, the arbitrator determined that the parties’ child
support obligations essentially cancelled each other out.
Do contended that Lam’s five-year stint as a postdoctoral scholar was a continuation of her
education. During those five years, he asserted, Lam could have taken a private sector job earning
substantially more. Instead Do left his life in Michigan and gave up his own career aspirations to
follow Lam to California. Lam noted that although classified as a “scholar,” she earned no degree
or certification for her work. Rather, Lam conducted research and published papers, which helped
further her career. The arbitrator did not agree with Do’s characterization of Lam’s position and
declined to adjust the property division or to impute income to Lam during that time.
Ultimately, the circuit court adopted the arbitration award and entered a lengthy judgment
of divorce. Do appeals.
II. ANALYSIS
Do preserved his challenges to the arbitration award by raising them in a motion to correct
errors and omissions as contemplated by MCR 3.602(K)(1). We review de novo a circuit court’s
decision to enforce an arbitration award. Eppel v Eppel, 322 Mich App 562, 571; 912 NW2d 584(2018). Our review is “extremely limited.” Washington v Washington, 283 Mich App 667, 671;
770 NW2d 908 (2009). We may not review the arbitrator’s factual findings or the decision on the
merits. Eppel, 322 Mich App at 572.
MCL 600.5081(2) of the domestic relations arbitration act (DRAA), MCL 600.5070 et
seq., “provide[s] four very limited circumstances under which a reviewing court may vacate a
domestic relations award.” Washington, 283 Mich App at 671. Relevant here, MCL 600.5081(2)
provides that a circuit court “shall vacate” an arbitration award if “(c) [t]he arbitrator exceeded his
or her powers,” or “(d) [t]he arbitrator . . . refused to hear evidence material to the controversy, or
otherwise conducted the hearing to prejudice substantially a party’s rights.” An arbitrator exceeds
his or her powers if he or she “(1) act[s] beyond the material terms of the arbitration agreement or
(2) act[s] contrary to controlling law.” Washington, 283 Mich App at 672. A court may vacate or
modify an arbitration award if the arbitrator contravened controlling law in a manner that was “so
substantial that, but for the error, the award would have been substantially different.” Eppel, 322
Mich App at 572 (quotation marks and citation omitted). However, that error “must be readily
apparent on the face of the award without second-guessing the arbitrator’s thought processes.” Id.
-2-
The arbitrator did not exceed his powers, improperly refuse to hear material evidence, or
conduct the hearing in a way that substantially prejudiced Do as it relates to the consideration of
Lam’s postdoctoral work at Stanford University. Pursuant to Postema, 189 Mich App at 94,
“fairness dictates that a spouse who did not earn an advanced degree be compensated whenever
the advanced degree is the end product of a concerted family effort involving mutual sacrifice and
effort by both spouses.” (Emphases omitted.) “[I]t is not the existence of an advanced degree
itself that gives rise to an equitable claim for compensation, but rather the fact of the degree being
the end product of the mutual sacrifice, effort, and contribution of both parties as part of a larger,
long-range plan intended to benefit the family as a whole.” Id. at 95. “[T]he attainment of an
advanced degree is a prolonged undertaking involving considerable expenditure of time, effort,
and money, as well as other sacrifices.” Id. The nonstudent spouse makes these sacrifices because
he or she expects to “shar[e] in the fruits of the degree” in the end. Id. When divorce interferes
with this plan, equity is invoked. Id.
The arbitrator acknowledged and applied these principles, although not to Do’s liking.
After hearing the testimony and reviewing the evidence, the arbitrator found that Lam’s position
at Stanford was “a job . . . which furthered her career,” and was not “additional training and/or
continued education” subject to division under Postema. We may not second-guess that factual
conclusion. Do complains that the arbitrator did not consider a material piece of evidence—Lam’s
offer letter from Stanford. First, the arbitrator was not required to mention every piece of evidence
presented and considered in writing the arbitration award. See Belen v Allstate Ins Co, 173 Mich
App 641, 645-646; 434 NW2d 203 (1988) (where there was no dispute that a document was
“introduced and received into evidence,” “[t]he degree of consideration given this evidence is . . .
not a matter for appellate review”). Moreover, Do mischaracterizes the offer by focusing on two
sentences and ignoring the remaining two pages of content. Although the offer letter indicates that
“Postdoctoral Scholars are considered students in advanced training” and “are registered according
to University guidelines,” the very next sentence clarifies that this is done to give them “access to
certain University privileges.” The remainder of the letter focuses on salary, benefits, and tax
consequences—matters pertinent to a job and not an educational pursuit.
However, we agree with Do that the arbitrator acted in contravention of controlling law in
calculating the parties’ salaries for the purpose of determining child support obligations. “A trial
court must presumptively follow the MCSF . . . when determining the child support obligation of
parents.” Teran v Rittley, 313 Mich App 197, 214; 882 NW2d 181 (2015). When Lam filed the
divorce complaint and during the arbitration proceedings, the 2017 MCSF was in effect. 2017
MCSF 2.202(B) provides that “[w]here income varies considerably year-to-year due to the nature
of the parent’s work, use three years’ information to determine that parent’s income.” 1 Lam
presented evidence regarding her annual salary for teaching in the fall and winter semesters. Lam
explained that she also is required to conduct research fulltime in the summers, but will only be
compensated for that work if she secures a grant. And Lam secured a grant for approximately
$35,000 in 2019. Lam’s “income varies considerably year-to-year” depending on her ability to
1
This provision remains the same in 2021 MCSF 2.02(B).
-3-
secure a grant. Accordingly, the arbitrator was required to consider three years of information in
calculating Lam’s income.
However, Do also contends that additional income should be imputed to Lam for her
unpaid summers because she “has an unexercised ability to earn.” Do implies that Lam could earn
more if she accepted a private sector job with year-round work and pay. This is not what the
MCSF contemplates. 2017 MCSF 2.01(G) permits the factfinder to impute income to a parent
who “is voluntarily unemployed or underemployed, or has an unexercised ability to earn.” Lam
is not voluntarily unemployed or underemployed and does not have an unexercised ability to earn.
She is gainfully employed as a professor. Many teachers and professors are in the classroom for
approximately three-quarters of the year. In their “off” months, most teachers prepare for the next
year’s classes without compensation. Professors similarly prepare without pay. But professors
are also expected to research and publish to support the reputation of their institution without
compensation from their employers. Failure to do so means the professor will not gain tenure or
could be terminated. This time away from the classroom simply is not a period of voluntary
unemployment.
We affirm in part, but remand for recalculation of the parties’ child support obligations.
We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Deborah A. Servitto
/s/ Christopher P. Yates
-4-