Travis v. Travis , 19 Mich. App. 128 ( 1969 )

19 Mich. App. 128 (1969) 172 N.W.2d 491

TRAVIS
v.
TRAVIS

Docket No. 5,611.

Michigan Court of Appeals.

Decided August 28, 1969. Rehearing denied August 28, 1969.

Robert O. Brown, for plaintiff.

Dykema, Wheat, Spencer, Goodnow & Trigg (W.A. Steiner, Jr., of counsel), for defendant.

Before: J.H. GILLIS, P.J., and LEVIN and V.J. BRENNAN, JJ.

PER CURIAM.

On May 2, 1968 the trial court granted a judgment of divorce to the appellee Salwa Travis. The appellee was awarded child custody, child support, a property settlement and attorney fees. Albert Travis, the husband and appellant, filed a timely claim of appeal contending that the child support award of $20 per week per child, $40 total, is excessive; that the property settlement was made without regard to the funds acquired by appellant before the marriage; and that the award of $850 to the wife's attorney was excessive. The appellee has filed a motion to affirm the judgment of the lower court.

Appellant's first contention is that the amount of child support is excessive, a total of $40 per week or $2,080 annually. Appellant seeks to support this contention solely on the ground that his income for the preceding year was approximately $3,385. The general rule regarding the amount to be allowed for child support is stated in 2 Nelson, Divorce and Annulment (1961 Rev), § 14.84.

"The amount to be allowed for the support of children is within the sound discretion of the court, but should be reasonable in view of the status of the parties and requirements of the children, the age and health of the children, the income of the mother, and the ability of the husband to pay. However, the amount of support must be fair and not a confiscatory burden on the parent; and the financial ability of the husband to pay, although a substantial element in determining the amount of support for a child is not, of course, the sole factor to be considered. Nevertheless, the duty of a father to contribute to the maintenance of his children is not limited to his income. The court may also take into consideration the father's ability to labor and earn money and make an award based thereon, even though the father owns no property." (Emphasis supplied.)

In the present case the appellant was awarded assets in excess of $40,000. Moreover, he has been content with a part-time job although he advances no reason why he cannot work a forty-hour week. The trial court properly considered appellant's assets and his income potential.

The second issue concerns the division of property. The total assets amounted to more than $50,000 on the date the divorce action was commenced. At the date of settlement the assets were worth more. Appellant was awarded in excess of $40,000. Appellant contends that he should have been credited with the amount of the assets which he brought into the marriage and that the division of property should have been restricted to the remainder. However, no authority has been advanced or discovered which would support the proposition that a property settlement is restricted solely to the assets acquired during the period of the marriage. Individual contribution toward the marital assets is but one factor to be considered.

Appellant also challenges the award of $850 in attorney fees. We have concluded that the trial court did not err in making this award.

We have examined the record and have concluded that the trial court did not clearly err and that the issues raised on appeal are so insubstantial as not to require formal submission.

The motion to affirm is granted.