DocketNumber： Docket 373
Judges： Fitzgerald, Holbrook, Kavanagh
Filed Date： 6/28/1966
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
David L. Bailey, for plaintiff.
John E. Hart, for defendant.
FITZGERALD, P.J.
The parties herein were divorced October 24, 1950, in the circuit court for the county of Manistee. Appellant was plaintiff in that action.
Incorporated in the decree of divorce was this statement:
"It is further ordered, adjudged and decreed that the defendant shall pay unto the clerk for the county of Manistee the sum of $50 each and every month, until the further order of the court, for the support of this plaintiff and the minor child, James Newell Mowrer; the first of such above mentioned payment to be made on or before November 1, 1950, and to continue as above provided until the further order of the court."
It will be noted that in this decree no allocation between child support for the minor child and alimony *518 for the plaintiff was made by the court, but that rather the sum awarded was a lump sum, presumptively for the benefit of both.
The decree further pointed out that the defendant left his studies at school under the auspices of the veterans' administration and "is now working, but that such employment is only recent and that his financial condition is not good; that he has lost considerable time from his employment due to his being required to appear in this court because of another matter growing out of the present marital difficulties, and that this should be taken into consideration in fixing the amount to be paid for the support of the minor child and the plaintiff herein."
On December 21, 1951, plaintiff petitioned for an increase in the allowance and an order was entered raising the allowance from $50 to $60 each month. Again, no allocation between child support and alimony being made. On December 28, 1954, a petition was filed requesting an increase in the allowance and resulted in an order increasing payments to $90 per month for a period of 6 months, and thereafter to $80 per month. The order further provided for an automatic reduction in such sum in the event the defendant's earnings were reduced. There was a further provision in the order, as follows:
"It is further ordered and adjudged that the plaintiff shall not again petition this court for an amendment of said decree of divorce unless she shall be faced with an emergency medical or hospital expense of herself or the son of the parties hereto so as to justify an emergency payment."
There was no request for rehearing on this matter, nor was there an appeal taken from that order.
No further proceedings were instituted until November 14, 1962, the action which brings about the instant appeal. As a result of that hearing, the trial *519 court amended the decree to provide for payments of $120 per month, and again no allocation between child support and alimony was made save for this reference in the trial court's opinion:
"It seems obvious from the terminology appearing in the decree that it was the intention of the parties, as well as the court, that a portion of the allowance was to be support for her, or as we sometimes say, alimony for the wife as distinguished from child support. The support for the wife will continue as long as the need exists commensurate with the defendant's ability to pay. Whereas, the support for the son shall terminate upon the completion of his education when he becomes self-sustaining."
While this portion of the order does not indicate the court's thinking on the matter of allocation of child support and alimony, it at least furnished some insight into the approach regarding the duration of the award.
The appeal from this order questions whether the sum of $120 monthly was a reasonable amount and whether the lower court was prejudiced in the case because of an order in the file made by a different judge, specifically that portion of the order stating that plaintiff should not again petition for an amendment of the decree unless faced with emergency medical or hospital expense for herself or the son of the parties.
The record on appeal disclosed that an affidavit from the manager of the payroll accounting department of the Lockheed Georgia Company, Marietta, Georgia, defendant's employer, had not been admitted into evidence on the hearing of the matter. Accordingly, on the authority of Cartwright v. Cartwright (1954), 341 Mich 68, this Court on January 11, 1966, on its own motion, remanded the matter to the circuit court for taking of further testimony *520 relative to the earnings of defendant and for formal admission as evidence of certain exhibits relative to said earnings. The order provided that the trial court allocate the award in this cause into the proportion representing alimony and the proportion representing child support.
Subsequent to this remand, the circuit judge, Honorable Rupert B. Stephens, died, and the matter was heard on April 19, 1966, before a visiting judge.
At that hearing, the affidavit relative to the annual earnings of defendant for the years 1955 through 1964 was received as an exhibit by stipulation and nothing further offered pertaining to the income of defendant. On the matter of allocation of the award between child support and alimony, the court stated as follows:
"The court is in a difficult position in attempting to comply with the request of the Court of Appeals in respect to the directive that the award be allocated between child support and alimony. At no point in the history of this case has that ever been done. The original award was made in a joint designation for the support of the wife and the minor child, and increases thereafter have never been allocated between the two. What the basis of the award was at the beginning, I am unable to say. The judge who made the award is now deceased, having retired from this bench after granting the original decree. And, what was in the mind of the successor judge who granted the most recent increase, I cannot say, since he is now deceased and leaves no record of his mental impressions of the needs of the parties and the manner in which it ought to be allocated. I can say that from having been a visiting judge here, and determined the custom of support, the extent to which the court occasionally made reference to a standard table of support seemed to indicate that the total amount of the award most recently made by the court would be somewhat less *521 than would normally be granted for child support, so that if this is taken as any criteria it would be indicative of an intention on the part of the trial judge to make the award, insofar as it was alimony, nominal only. I am going to proceed on that basis and allocate for the record the award of $120 a month as constituting alimony in the amount of $10 and child support in the amount of $110, with the frank statement that I have no real notion of what was in the mind of the original judge or the judge who thereafter made orders amending the original decree. I think that perhaps that would suffice if the statements of these proceedings be transcribed and certified back to the court."
It is obvious from the foregoing that the visiting judge found himself at as much disadvantage in reviewing this matter as this Court would were it not for the fact that this appeal is before us on a de novo basis. Addressing ourselves specifically to the questions raised in this appeal, we hold that the portion of the prior decree admonishing plaintiff "not to seek amendment of the decree unless faced with an emergency medical or hospital expense" was unenforceable and nugatory.
A judge may not close the doors of his courtroom to any plaintiff. His judgment and discretion are his bulwark in matters brought before him, and he may not prejudice or foreclose successors in office from entertaining any properly filed petition. Nowhere does the record disclose that his successor was influenced or prejudiced by the circumscribed terms of this order.
Relative to the matter of the reasonableness of the $120-a-month award, and the subsequent apportionment of that sum between alimony and child support, we must take a different view. The affidavit filed, following order of this Court, indicated *522 earnings on the part of defendant increasing over the years, as follows:
"YEAR ENDING GROSS DEC. 31 EARNINGS 1955 $ 8,848.35 1956 10,241.78 1957 10,163.16 1958 11,535.35 1959 12,774.60 1960 12,873.40 1961 13,295.51 1962 13,686.08 1963 16,075.83 1964 16,676.70"
The net effect of the most recent order in this cause, awarding plaintiff the sum of $10 per month of the total of $120, strikes this Court as grossly inadequate in light of these earnings. This amounts to the sum of $2.50 a week, scarcely a token, and is such that we cannot in good conscience allow it to stand at that figure.
Accordingly, the award of $110 a month child support is affirmed, and the alimony for plaintiff is increased to the sum of $40 a month without prejudice on her part to seek a further increase therein based on a more up-to-date showing of her personal expenses. Previous testimony and exhibits had considered the expenses of plaintiff and her son together, and it is the feeling of the Court that the child support money, increased as it is to the sum of $110 per month, adequately provides for him. If plaintiff can demonstrate her present circumstances, the court may appropriately entertain a petition for further amendment of her award.
At the original hearing on the petition to increase child support and alimony, the matter of a college education for the son of the parties was raised, but *523 not ruled upon directly. Reference, however, to the original order arising from this hearing reveals specifically that the award "shall terminate upon the completion of his education when he becomes self-sustaining."
It has been held by our Supreme Court that the matter of a college education is not taken lightly and may be considered as a ground for continuing child support payments beyond age 17. Titus v. Titus (1945), 311 Mich 434; Mapes v. Mapes (1953), 336 Mich 137.
In reviewing this record, we feel that the "exceptional circumstances" set forth in CL 1948, § 552.17a (Stat Ann 1951 Cum Supp § 25.97[1]) have been met so that we may properly order that the payments for the son of the parties shall continue so long as he is enrolled as a full-time student in an accredited institution of higher education. Upon graduation or termination of his education for any reason, the said payments may cease so far as the matter of child support is concerned and in any event shall not continue beyond his attaining the age of 21. Johnson v. Johnson (1956), 346 Mich 418.
Remanded to the circuit court for the county of Manistee for proceedings in conformity with this opinion.
HOLBROOK and T.G. KAVANAGH, JJ., concurred.