Edwards v. Edwards

Griffin, J.

(dissenting). I respectfully dissent. I cannot agree with my colleagues that the $80 a week increase in child support was so low that it constitutes an abuse of discretion. Further, I find no abuse of discretion in either the circuit court’s refusal to make the increase fully retroactive or its decision to award plaintiff only a portion of her attorney fees. Accordingly, I would affirm the order of modification in all respects.

As noted by the majority, plaintiff was previously receiving $160 a week in child support for both children. The record reflects that plaintiff was seeking an increase to $300 to $350 a week. In response, defendant offered to pay $200 a week. As noted by the majority, the guidelines recommended $295 a week and the friend of the court recommended $277 a week. Ultimately, the circuit court awarded $240 a week. It therefore appears that the court reached a middle ground with respect to the amount of support, and I see no error in how it did so.

At the hearing below, plaintiff testified that she was seeking an increase in support to cover only the cost of piano lessons for both children, dance lessons for Michelle, and private schooling for Michael. Plaintiff further testified regarding the cost of these activities. Using plaintiffs figures, the total cost of these activities amounts to $5,556 a year. The court ordered an increase of $80 a week in child support, which amounts to $4,160 a year ($80 times 52 weeks). This, in turn, amounts to seventy-five percent of the cost of the new activities.¹ Even though the parties’ incomes are disparate, plaintiff does earn in excess of $41,000 annually, and I am not convinced that it was error for the trial court to fashion a result that requires plaintiff to pay a small portion of the dance lessons, piano lessons, and private schooling.

Although our review in these matters is technically de novo, an award of child support rests in the sound discretion of the trial court, and its exercise of discretion is presumed to be correct. See Thames v Thames, 191 Mich App 299, 306; 477 NW2d 496 (1991), citing Hoke v Hoke, 162 Mich App 201, 206; 412 NW2d 694 (1987). A modification of support should not be reversed unless the challenging party shows a clear abuse of discretion that convinces this Court that it would have reached a different result. Aussie v Aussie, 182 Mich App 454, 463; 452 NW2d 859 (1990); also see Burkey v Burkey (On Rehearing), 189 Mich App 72; 471 NW2d 631 (1991) (abuse of discretion not the standard of review; "different result” test employed). In this case, the trial court’s opinion is well reasoned. The court thoroughly considered the relevant factors before it, including both parties’ earning capacity and their ability to pay. The court also found plaintiff’s $300 request unreasonable in light of the fact that defendant pays the children’s transportation costs to Texas for visits, as well as all uninsured medical expenses.² There is no abuse of discretion indicated on this record.

With regard to the issues of attorney fees and retroactivity of the support order, I likewise find no abuse of discretion. The majority relies on the "indication” that defendant’s petition for custody caused the delay in getting the support issue resolved. This is directly contrary to the trial court’s expressed finding that this action was not unreasonably delayed by the actions of either party. The court also, once again, expressly considered the parties’ financial positions. I find no abuse of discretion and accordingly would affirm._

1 I acknowledge that defendant’s support payments abate fifty percent anytime the children visit him for more than six consecutive nights. However, plaintiff’s cost of providing for the children on a daily basis also abates during these visits.

2 Defendant testified that it currently costs him a minimum of $1,200 annually to fly the children to Texas for visits and that each child has a $250 health insurance deductible.