Burba v. Burba

¶1I concur in the result, but write separately because I disagree with the majority’s unnecessarily broad holding that, as a matter of law, income disparity between the parties is not an appropriate reason for departing from the applicable child support formula. Rather, I would reverse solely on the basis of the friend of the court’s error, which went uncorrected by the trial judge.

¶2In preparing its recommendation, the friend of the court proceeded as if this case involved sole custody, rather than shared custody.1 The friend of the court mistakenly made a recommendation based on the sole custody guidelines. At the hearing on the petition Mr. Burba objected to the recommendation, pointing out that he and Mrs. Burba shared custody. Instead of admitting the error, the friend of the court attorney stated that the friend of the court had a policy of not *652using the shared custody guidelines when there was a large disparity in income between the parties. However, in its amicus curiae brief, the Washtenaw County Friend of the Court has assured this Court that it does not have a policy of applying the incorrect guidelines, under any circumstances. Instead of remanding to the referee for a recommendation based on accurate information, the trial court proceeded with the hearing, ultimately adopting a support payment that was in excess of the support levels recommended by the formulas for shared custody. I would reverse and remand for further proceedings because the trial court did not have the proper recommendation before it; thus, I agree with the majority’s result.

¶3However, unlike the majority, I would not hold that the trial court is not allowed to consider the parties’ disparity of income in determining whether the application of the child support formula would be “unjust or inappropriate,” in accordance with MCL 552.17(2); MSA 25.97(2).2 The majority incorrectly asserts that *653because the parties’ income was a factor when the support level was initially set by the formula, it cannot not be considered when deciding whether the application of the formula was unjust or inappropriate. This is the first time this Court has addressed what factors may be considered in determining whether application of the child support formula is unjust or inappropriate;3 I regret that the only guidance the majority offers is that the parties’ disparity of income cannot be considered. The logic of the majority’s opinion4 would require it to hold that none of the factors relied upon in the Child Support Formula Manual (West, 1999) can be used in making the MCL 552.17(2)(d); MSA 25.97(2)(d) “unjust and inappropriate” analysis. The majority’s interpretation would preclude the courts from considering any of the factors taken into account in the Child Support Formula Manual, including parental income, family size, the ages of the children,5 child care expenses,6 and the existence of other minor children7 or stepchildren.8 Such a restriction would improperly fetter the trial judge—a result not required by either the statutes or the Child Support Formula Manual. Therefore, we should not hold, as a matter of law, that the trial *654court cannot consider income disparity when determining whether the application of the formula was unjust or inappropriate.

¶4I would reverse and remand because the friend of the court report was based on inaccurate assumptions.