David Trebnik v. Kirsten Trebnik ( 2023 )

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
DAVID TREBNIK, UNPUBLISHED
May 25, 2023
Plaintiff-Appellant,
v No. 360106
Oakland Circuit Court
KIRSTEN TREBNIK, LC No. 2019-872101-DM
Defendant-Appellee.
Before: GLEICHER, C.J., and HOOD and MALDONADO, JJ.
PER CURIAM.
In 2021, David Trebnik moved to modify a temporary child support order of $3,000 per
month that had been entered more than two years earlier. The circuit court denied the motion and
entered a final child support order for the same amount. The circuit court did not employ the
correct standards or recalculate child support under the child support formula based on David’s
actual income. But the court properly determined that its review could only reach a certain distance
back in time. We affirm in part, vacate in part, and remand for further proceedings.
I. BACKGROUND
David Trebnik filed for divorce from Kirsten Trebnik in April 2019.1 The couple has one
child, VT, born in 2018. David has another minor child from a previous marriage. David is in the
tech industry and at the time of the divorce filing, earned a base salary of $110,000 plus
commissions from Dell EMC. Kirsten is a high school teacher, earning approximately $64,000.
Each owns income-generating residential rental property.
In June 2019, Kirsten filed a motion seeking interim child support. The parties were unable
to agree on David’s income. In August 2019, David earned a $199,000 commission following an
unusually large sale. Kirsten argued that David was “on track to earn . . . $407,000” that year,
while David contended that his August 2019 sale was a once-in-a-career event. Plugging her
1
As the parties share a last name, we refer to the parties by their first names.
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figures into the uniform child support formula (MCSF), Kirsten sought $3,700 each month in child
support. Oakland Circuit Court Judge Victoria Valentine ordered David to pay $3,000 each month
retroactive to July 1, 2019. The court did not explain how it reached that figure. However, when
discussing the cost of childcare, the court noted that David would earn between $300,000 and
$400,000 that year. Following the hearing, the court entered a written order requiring David to
pay $3,000 each month “in interim child support, retroactive to July 1, 2019,” and indicating that
“the issue of the correct amount of child support, retroactive to July 1, 2019 is reserved for trial.”
A separate “temporary” child support order (UCSO) entered as well.
David filed a motion for reconsideration of the temporary or interim UCSO, which the
circuit court denied as the issue would be considered at trial. However, a trial never occurred. On
December 10, 2019, the parties entered a consent judgment of divorce, resolving all issues except
child support. In that regard, the judgment stated: “The [UCSO] entered on October 17, 2019 shall
remain in full force and effect, pending the Friend of the Court’s [FOC] investigation and
recommendation, when a subsequent [UCSO] will be entered.” The judgment continued that
uninsured medical costs would continue to be divided as provided in “[t]he October 17, 2019
temporary [UCSO] pending entry of a new child support order.” The judgment further provided
that “[t]he parties shall abide by the October 17, 2019 temporary [UCSO] pending entry of an
order after the [FOC] child support investigation.”
The court entered an order referring the child support matter to the FOC for investigation.
In February 2020, the FOC issued its recommendation for a modified UCSO, finding that David’s
2019 salary was approximately $330,000. Based on that figure, the FOC recommended that David
pay $3,388 in monthly child support. Neither party sought entry of a new UCSO based on the
February 2020 recommendation. Instead, David improperly filed a series of motions for
reconsideration in the FOC.
David changed jobs twice in the following year and was unemployed for brief periods.
Dell EMC terminated David’s employment in February 2020. In March 2020, David filed a
motion to modify the UCSO based on his unemployment, but never served the motion on Kirsten.
David had accepted an offer for new employment with Otava before he filed this motion but
omitted this fact from the pleading.
David was terminated by Otava on October 7, 2020, but started a new job on December 1
with Sentinel Technologies. He filed a new motion to modify in December 2020. David cited his
latest employment termination as “a change in circumstances” warranting “modification of child
support.” He argued that childcare expenses should be removed from the child support award as
he was then available to care for VT during Kirsten’s work day. Plugging his new income in the
MCSF, David asserted that he was required to pay only $177 each month. Again, David did not
mention that he had already secured new employment.
The matter was reassigned to Oakland Circuit Court Judge Lorie Savin in January 2021.
Given David’s December 2020 motion, the court again referred the child support matter to the
FOC, but not until June 2021. The FOC conducted a four-day hearing.
David testified that he had earned a base salary of $110,000 at Dell EMC. 2019 was his
highest grossing year for commissions, yielding a salary of $332,000. In 2018, David stated that
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he earned only $147,000. Dell terminated David’s employment effective February 1, 2020. He
secured employment with Otava in mid-March 2020, and maintained that position for six months.
David testified that he earned $74,000 during that time, but a redacted W2 stated that he earned
$88,000. David was unemployed for less than two months before he started a new job with
Sentinel on December 1, 2020. David’s base salary with Sentinel was $95,000, and he was eligible
to earn an additional $150,000 in commissions. For the first 12 months of his employment,
Sentinel paid David an additional $4,000 per month “to help with bridge, trying to bring on new
accounts that I’m not getting commissions on.”
David also testified that he owns three residential properties. He lives in one and rents the
other two. He claimed that he essentially broke even on the former marital home because of gaps
in occupancy, repair expenses, and high bills following an undetected water leak. David further
claimed that he rented a condo to his parents at a small loss. However, David had not filed his
2019 or 2020 income tax returns and so could not place them into evidence. And David was
antagonistic with Kirsten’s attorney and the FOC referee during cross examination, requiring the
court to mute his microphone or place him in the Zoom waiting room on several occasions. After
being ordered by the referee, David presented bank statements revealing $11,000 in deposits from
bitcoin and stock accounts.
Kirsten testified that she is a high school teacher. Her total income between salary and
rental proceeds was $74,560 in 2019. In 2020, her total income was approximately $86,000. At
the time of the FOC hearing, her annual salary was $66,688. Kirsten testified regarding her
childcare costs during her work day. She further described how she averaged those costs
throughout the year to avoid the need for a reconfiguration of child support each summer. Kirsten
presented extensive documentation to establish her salary, rental income, and childcare costs.
However, Kirsten admitted that she incurred no childcare costs between March and September of
2020 and had not notified the FOC.
The FOC recommended that retroactive to June 2021, David pay $1,354 a month in child
support. That figure was based on David’s 2021 income of $170,660, which included salary and
rental income. The FOC recommended that David be required to pay $3,388 a month in child
support from July 1, 2019 through May 2021, which was the figure given in the FOC February 6,
2020 recommendation. The FOC reasoned that this figure was supported by the information before
the court when the recommendation was made and because David never properly objected to that
recommendation.
Kirsten objected to the FOC’s new recommendation, arguing that she was entitled to a
larger amount for childcare costs. David also objected, arguing that the FOC’s factual findings
regarding his income were erroneous and that he was entitled to retroactive modification of his
child support obligation to be calculated according to his actual income rather than the FOC’s
February 6, 2020 findings and recommendation.
The circuit court conducted a de novo review of the FOC’s October 7, 2021 findings and
recommendation on the existing record, without allowing additional evidence to be presented. In
January 2022, the circuit court issued an opinion and order making the October 17, 2019 temporary
UCSO the final UCSO in this case. The court stated that David was required “to demonstrate a
substantial change in circumstances” to “warrant[] modifying his child support obligation.”
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The court noted that David offered three “theories of substantial change in circumstances”:
his first period of unemployment, his second period of unemployment, and his change in income.
The court noted that David abandoned his claim regarding his first period of unemployment by
failing to follow through on his March 2020 motion. The court found that David inaccurately
stated in his December 2020 motion that he was still unemployed and did not attempt to correct
the record, negating his claim of a substantial change in circumstances in that regard. The court
continued that David “was not proactive in bringing a shifting theory of change in circumstances
to the Court’s attention. Only when presented with evidence showing that he was employed when
both motions were filed, did [David] argue that” the income change between jobs amount to a
substantial change in circumstances.
In relation to the change in income theory, the court found that David’s “credibility is
greatly diminished by his conduct throughout the proceeding.” The court emphasized David’s
“disruptive and disrespectful” behavior as well as his “refus[al] to cooperate with basic procedure
and deflect[ion of] responsibility for his own actions elsewhere.” The court took special notice of
David blaming opposing counsel and the court for his failure to file his tax returns. Ultimately,
David’s “lack of candor gives his testimony little weight with this Court.” Based on the evidence
presented, the court determined that David’s income from employment in 2018 was $128,000,
$332,000 in 2019, $120,000 in 2020, and $128,000 in 2021. The court found incredible David’s
explanation of his rental income (or losses) and did not assign a value to that income. And the
court found insufficient evidence to add stock or bitcoin proceeds to David’s income.
In denying David’s motion to modify the UCSO, the court ruled:
[David] failed to show to that his employment or income-producing
endeavors substantially changed since the last child support order’s entry. [David]
earned $128,000 in W-2 income in 2018. Presumably, that is the information used
for the child support order because the Judgment indicated that support had to be
recalculated based upon his 2019 income. The evidence demonstrates that
[David’s] position in 2020 and 2021 were substantially like [David’s] prior income,
which the Court finds to be $128,000. [David] was employed in 2020 earning
$120,000 and in 2021 earning approximately $128,000.
The court dismissed David’s March 2020 motion as abandoned and denied David’s December
2020 motion to modify the UCSO. The court then removed the “temporary” label on the October
17, 2019 UCSO, making it the final order of the court.
David now appeals.
II. ANALYSIS
We first note that David challenges the child support award dating back to July 1, 2019.
There is a strong preference against the retroactive modification of child support obligations in
Michigan. Fisher v Fisher, 276 Mich App 424, 428-430; 741 NW2d 68 (2007). “[T]he general
rule is that the protection of children mandates the finality of child support obligations and child
support payments.” Id. at 429. Each child support payment is akin to a new judgment with full
force and effect. MCL 552.603(2)(“[A] support order that is part of a judgment or is an order in a
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domestic relations matter is a judgment on and after the date the support amount is due[.]); Harvey
v Harvey, 237 Mich App 432, 437-438; 603 NW2d 302 (1999). “The only way to ‘undo’ those
payments is by retroactively determining that [the party] was not, in fact, under an obligation to
pay them and retroactively rescinding those court orders.” Fisher, 276 Mich App at 429-430.
Consistent with these principles, MCL 552.603(2) only permits retroactive modification of
a final child support award “from the date that notice of the petition was given to the . . . recipient
of support.” The first notice received by Kirsten that David was challenging the child support
award was December 18, 2020. While MCR 3.207(C)(4) permits a court to designate a temporary
order as retroactively modifiable, a party must show good cause for relief. As David waited 10
months after the FOC’s recommendation to seek relief, he cannot make a strong appeal for
retroactive modification back to July 1, 2019. Accordingly, regardless of whether the circuit court
erred in awarding $3,000 each month in child support in the temporary UCSO, no modification
can predate December 18, 2020. Between July 1, 2019 and December 18, 2020, David was
required to pay $3,000 monthly in child support. We limit our review to the imposition of child
support from December 18, 2020 forward.2
We now consider the propriety of the court’s January 2022 order. “Modification of a child
support order is a matter within the trial court’s discretion.” Burba v Burba (After Remand), 461
Mich 637, 647; 610 NW2d 873 (2000). “An abuse of discretion occurs when the trial court’s
decision is outside the range of reasonable and principled outcomes” or “where the trial court
misapprehends the law to be applied.” Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223(2012) (cleaned up). “Whether a trial court properly operated within the statutory framework
relative to child support calculations and any deviation from the child support formula are
reviewed de novo as questions of law.” Peterson v Peterson, 272 Mich App 511, 516; 727 NW2d
393 (2006).
The first question is whether the circuit court properly determined that David was required
to demonstrate a substantial change in circumstances to warrant a modification rather than good
cause.
MCL 552.17(1) provides that after the entry of a divorce judgment, “the court may revise
and alter a judgment concerning the care, custody, maintenance, and support of some or all of the
children, as the circumstances of the parents and the benefit of the children require.” This Court
has interpreted this provision as permitting a modification of an earlier child support order when
“justified by changed circumstances.” Kosch v Kosch, 233 Mich App 346, 350; 592 NW2d 434(1999). See also Holmes v Holmes, 281 Mich App 575, 588; 760 NW2d 300 (2008) (“Therefore,
[the] circuit court did not err by concluding that a change of circumstances warranted modification
of defendant’s monthly child support payment.). MCL 552.517b(8), however, provides, “Upon
motion of a party, the court may only modify a child support order upon finding a substantial
2
MCL 552.603b permits retroactive modification of child support if a parent “knowingly and
intentionally fails to report, refuses to report, or knowingly misrepresents” his or her income to the
FOC. There is no allegation against Kirsten in this regard. David’s conduct, however, raises this
implication.
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change in circumstances . . . .” (Emphasis added.) MCL 552.517b(1) requires courts to apply this
standard when considering modification of a child support order entered after June 30, 2005.
MCR 3.207(C), on the other hand, applies to temporary orders entered in domestic relations
actions. Subsection (3) provides that “[a] temporary order may be modified at any time during the
pendency of the case, following a hearing and upon a showing of good cause.” (Emphasis added.)
The court rule continues:
(4) A temporary order must state its effective date and whether its
provisions may be modified retroactively by a subsequent order.
(5) A temporary order remains in effect until modified or until the entry of
the final judgment or order. [MCR 3.207(C).]
The phrase “good cause” is not defined in the court rule. In relation to other court rule provisions,
this Court has defined “good cause” as “a legally sufficient or substantial reason.” In re Utrera,
281 Mich App 1, 11; 761 NW2d 253 (2008). See also Sanders v McLaren-Macomb, 323 Mich
App 254, 271; 916 NW2d 305 (2018).
No final child support order entered in this case until January 11, 2022. In the fall of 2019,
the court and the parties intended to resolve the child support issue at trial; no trial occurred. The
December 2019 consent judgment of divorce reserved entry of a final UCSO until the FOC could
investigate. Although the FOC recommendation was more favorable to Kirsten, she did not seek
entry of a final UCSO. David, who was then without counsel, filed a series of improper motions
in the FOC to challenge its recommendation and then filed a motion in the circuit court to set it
aside, but never served his motion on Kirsten or noticed the motion for a hearing. As a result, the
temporary UCSO remained in place. David’s December 2020 motion was the first to properly
challenge the temporary order and seek entry of a permanent one.
Given this unusual procedural history, the circuit court was required by MCR 3.207(C)(3)
to determine whether good cause existed to modify the existing temporary order. The circuit court
erred in requiring David to establish a substantial change in circumstances. On remand, the circuit
court must consider whether there is good cause to modify the UCSO from December 18, 2020
forward.
Additionally, we must remand because the circuit court did not follow the requirements of
MCL 552.605 in deviating from the MCSF and made factual errors and omissions by selecting an
arbitrary number for the child support award.
We first highlight a factual error in the circuit court’s final opinion and judgment entered
on January 11, 2022. “We review for clear error . . . the trial court’s factual findings underlying
its determination of a child support award.” Stallworth v Stallworth, 275 Mich App 282, 284; 738
NW2d 264 (2007). In the January 11 opinion, Judge Savin stated: “[David] earned $128,000 in
W-2 income in 2018. Presumably, that is the information used for the child support order because
the Judgment indicated that support had to be recalculated based upon his 2019 income.” This
presumption was incorrect. Rather, Kirsten’s attorney performed calculations under the MCSF
assuming that David would earn $407,000 in 2019, and opined that David would be required to
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pay $3,700 each month in child support. David objected that his August 2019 commission was
from a once-in-a-career sale and that his 2019 income would not exceed $320,000. When Judge
Valentine ordered David to pay $3,000 each month, she did not explain how she reached that
figure, but later in the hearing, Judge Valentine noted that David would earn between $300,000
and $400,000 in 2019. It is clear on the record that Judge Valentine did not calculate David’s
temporary child support obligation based on his 2018 salary of $128,000. (And David actually
testified that he earned $147,000 in 2018.) The $3,000 figure was an estimation based on the
court’s conclusion that David would earn $300,000 to $400,00—less than predicted by Kirsten
and her counsel. It had no foundation in the MCSF.
Judge Savin compounded the error by continuing the earlier child support amount without
considering a proper calculation under the MCSF. This error must be corrected on remand.
David’s child support obligations beginning December 18, 2020 must be based on the MCSF.
MCL 552.605(2) requires courts to calculate child support according to the MCSF.
Borowsky v Borowsky, 273 Mich App 666, 672-673; 733 NW2d 71 (2007). “A trial court must
strictly comply with the requirements of the MCSF in calculating the parents’ support obligations
unless it ‘determines from the facts of the case that application of the child support formula would
be unjust or inappropriate . . . .’ ” Id. at 673, quoting MCL 552.605(2). The court here made no
finding that application of the MCSF was unjust or inappropriate. As such, child support had to
be determined based on a properly calculated MCSF.
“The first step in determining the parents’ support obligation under the MCSF is to
determine each parent’s net income in order to establish, as accurately as possible, the monies
available to support the children.” Borowsky, 273 Mich App at 673. See also 2021 MCSF 2.01.
“Net income” is defined as “all income minus the deductions and adjustments permitted by” the
child support manual. 2021 MCSF 2.01(A). Income includes not only salary, but also
“commissions, bonuses, or other monies from all employers,” 2021 MCSF 2.01(C)(1), rental
proceeds, 2021 MCSF 201(C)(2), and any other “source of income,” 2021 MCSF 2.01(C)(8),
which would include investment and bitcoin proceeds.
To this end, the court must have a complete picture of the parties’ incomes. Neither parties’
income is tied solely to their salaries. The court acknowledged that both parties earn income from
rental properties. David also earned income through investments and bitcoin transactions. David
prevented the FOC and the court from calculating his rental, investment, and bitcoin income by
withholding documentation. The court responded by simply not assigning a value to that income.
On remand, the court must order David to present a more thorough accounting, preferably through
his income tax forms. If David does not comply with the court’s order, or the court believes that
David’s accounting is not accurate, the court must impute income from these sources. A party
cannot be permitted to avoid calculation of his true income to the detriment of his children.
Ultimately, the court could not modify the amount of child support ordered and due before
December 18, 2020, and we affirm the circuit court’s denial of David’s motion to modify in that
regard. The court erred, however, in maintaining the temporarily set child support figure without
adherence to the MCSF. Accordingly, we must vacate the court’s order to the extent it denied
David’s motion to modify the UCSO after December 18, 2020. On remand, the court must order
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the presentation of accurate information regarding the parties’ incomes and calculate a child
support award consistent with the MCSF.
We affirm in part, vacate in part, and remand for further consideration consistent with this
opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Noah P. Hood
/s/ Allie Greenleaf Maldonado
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