Public-domain · open source
OpenJurist

125 Mich. App. 54

336 N.W.2d 231

Madden v. Madden

Michigan Court of Appeals

Decided April 19, 1983

Michigan Court of Appeals · decided 1983-04-19

Decided 1983-04-19

M. J. Kelly, J.

¶1(concurring in part and dissenting in part). This case involves a troubling procedural occurrence at the lower court level. Defendant-appellant appears before this Court in propria persona. The record reveals that plaintiff appeared before the trial court on October 23, 1981, seeking a reduction in his child support obligations, due to a change in his financial circumstances. Defendant’s attorney informed the court that she had "had an opportunity to see the wage stubs for Mr. Madden and they do show his income as being lowered from the amount it was at the time he obtained the divorce”. The trial court then ordered a reduction in plaintiff’s child *62support payments. Defendant immediately requested to address the court. When the court instructed defendant to make her statement to her attorney, defendant responded that she had made her statement to her attorney but that her attorney "refuses to bring the matter up”. When the court consented to allow defendant to speak, defendant alleged that plaintiff had not "lost his job” but had gone into business with another man. Defendant wife alleged that she had looked into her former husband’s situation and had found that he "would not have any difficulty at all securing a job in the $40,000 range, which is approximately what he made last year”. The court replied that it could not force plaintiff to hold a $40,000 per year job and further discussion was apparently cut off.

¶2Thereafter, on January 27, 1982, defendant, without assistance of counsel, appeared before the trial court and moved for a rehearing on the court’s decision to reduce the child support payments and requested that the court conduct a full evidentiary hearing. Her requests were denied.

¶3Due to the remoteness of this Court from the parties and witnesses in a child support controversy, it has sometimes been observed on appellate review that "in child support matters the lower court’s decision is presumed correct”. See, e.g., Hakken v Hakken, 100 Mich App 460, 464; 298 NW2d 907 (1980). Thus, "grave consideration” is given to the findings of the trial court. Jacobs v Jacobs, 118 Mich App 16, 20; 324 NW2d 519 (1982). Notwithstanding this deference to the trial court in child support matters,

"[t]he law is clear that the court must hold an evidentiary hearing before a modification in support is ordered in absence of agreement of the parties. There must be a record of that hearing. The judge should *63place on the record a brief finding of the basis of his decision, even though findings of fact are not required on motions generally.” Hakken, supra, pp 464-465.

¶4In the absence of an agreement by the parties to the contrary, the failure to hold an evidentiary hearing as to whether there has been a sufficient change in circumstances to justify a modification of existing child support obligations is an abuse of the trial court’s discretion. See, e.g., Jacobs, supra, p 21.

¶5The majority reasons that a statement of defendant’s attorney, that she "had an opportunity to see the wage stubs for Mr. Madden and they do show his income as being lowered”, was in some way an agreement to waive an evidentiary hearing. This analysis is contraindicated by the defendant’s actual statement to the court, her express dissatisfaction with her attorney’s refusal to speak for her, and her timely motion, made in propria persona, for rehearing wherein she expressly reqúested an evidentiary hearing. An involuntary or forced waiver is no waiver at all and defense counsel’s statement contains neither the word agreement nor the word waiver. I do not find counsel’s statement to be the equivalent of an agreement to waive an evidentiary hearing.

¶6At most, the statement of defendant’s attorney might constitute a waiver of the necessity of requiring that plaintiff prove that his income from his current job had declind. However, the isolated consideration of income in deciding a motion for modification of existing child support obligations is error. McCarthy v McCarthy, 74 Mich App 105, 109; 253 NW2d 672 (1977); accord, Rutledge v Rutledge, 96 Mich App 621, 624; 293 NW2d 651 (1980); Cymbal v Cymbal, 43 Mich App 566; 204 NW2d 235 (1972). All factors relevant to child *64support must be considered. Jacobs, supra, p 20. Indeed, even the supporting party’s ability and potential to earn money are factors relevant to whether existing child support obligations should be modified. Hakken, supra, p 466; Rutledge, supra, p 625.

¶7It was error for the trial court to proceed to order a change in existing child support payments without conducting an evidentiary hearing, without reviewing all relevant factors, and without issuing brief findings on all relevant factors. This case should be remanded for reconsideration by the trial court as on rehearing granted. On reconsideration, the burden should be on plaintiff, the petitioning party, to prove a sufficient change in circumstances to justify a modification of the original support order. See Beverly v Beverly, 112 Mich App 657, 661; 317 NW2d 213 (1981). At the hearing, both plaintiff and defendant should be allowed to present evidence on all factors relevant to child support. See Beverly, supra, p 662.

¶8I concur with the majority’s resolution of the remaining issues.

/125/michapp/54 · .json · Public domain