Emmanuel Kengni Ncheuguim v. Mireille Alice Maguikuie Tegadjoue ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
EMMANUEL KENGNI NCHEUGUIM, UNPUBLISHED
November 14, 2019
Plaintiff-Appellant,
v No. 344412
Saginaw Circuit Court
MIREILLE ALICE MAGUIKUIE TEGADJOUE, LC No. 14-022946-DM
Defendant-Appellee.
Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals by leave granted1 the trial court’s opinion and order denying plaintiff’s
motion to order defendant to pay child support. Because the support order deviated from the
Michigan Child Support Formula (MCSF) and the trial court never articulated a basis for that
deviation in accordance with MCL 552.605, we vacate the trial court’s order and remand for
further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
The parties were married and had two children together. On May 2, 2014, plaintiff filed
a complaint for separate maintenance. Over a year later, on April 21, 2015, the parties signed
and the trial court entered a judgment of separate maintenance. That eventually led to a
judgment of divorce being entered on March 4, 2016. At the time of the divorce, both parties
lived in the Saginaw area. The divorce granted the parties joint custody, and included a
parenting schedule stating plaintiff would have the children Monday through Thursday
overnight, and defendant would have them Friday through Sunday overnight.
1
Emmanuel Kengni Ncheuguim v Mireille Alice Maguikuie Tegadjoue, unpublished order of the
Court of Appeals, entered November 15, 2018 (Docket No. 344412).
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Two months after the judgment of divorce was entered, defendant filed an emergency
petition regarding parenting time. The petition requested that plaintiff’s parenting time be
suspended “because of child abuse and neglect.” This led to the issue of custody and parenting
time being referred to a “custody specialist,” who submitted findings and recommendations to
the court. As part of her findings, the specialist stated that defendant was employed in Grand
Rapids, but appeared to still live in Saginaw. The specialist noted, however, that defendant
expressed a desire “to leave the Saginaw area” because of her job and “wanting to get further
away from” plaintiff. The specialist recommended continuing the current the parenting schedule.
Rather than having the trial court enter the specialist’s recommendation, the parties came
to an alternative agreement, which they placed into a stipulated order. The order provided that
plaintiff would have custody of the children during the school year, during which defendant was
allowed “one mid-week parenting time period (no overnights) and up to four days per month of
weekend parenting time as long as she informs the Plaintiff at least 48 hours prior to visit.”
Defendant would then have the children during the summer, as well as during winter and spring
breaks. The order also provided:
There shall be no child support ordered to be paid. This is likely a
deviation from whatever the support guidelines will be, however, the parties
choose to do this to resolve this matter.
Defendant . . . will be responsible to transport the children for her
parenting time since she is the one choosing to leave the Saginaw area.
The trial court entered the stipulated order on September 28, 2016.
About nine months after the trial court entered the stipulated order, on June 21, 2017,
plaintiff filed a motion requesting child support and to enforce the parenting-time schedule. The
motion alleged that shortly after the stipulated order was entered, defendant moved to Minnesota,
and that she had since “declined” to exercise her parenting time for the winter and spring breaks,
which caused plaintiff to incur unexpected expenses. The motion also alleged, “When the
agreement was signed that led to the September 28, 2016 order, it was anticipated that
[defendant] would be helping the children financially, however, she has provided almost nothing
for the children.” The motion requested that defendant be financially responsible for actual
expenses incurred to plaintiff if defendant chooses to not exercise her parenting times, and that
the issue of child support be referred to a referee “for a report and recommendation.”
The trial court held a hearing on the motion on August 28, 2017. At the hearing, plaintiff
reiterated the arguments in his motion, but added that he was requesting defendant cover actual
expenses for missed parenting time only if defendant failed to provide adequate notice (which,
according to plaintiff, meant four-weeks’ notice). With respect to his child support request,
plaintiff added that he had agreed to no child support with the understanding that “defendant was
going to help out with various items, extracurriculars,” but she had not done so. Defendant
represented herself, and said that it would not be a problem to give one month’s notice if she was
unable to exercise her parenting time. The trial court then told the parties that the issue of
support would be “referred,” and the hearing concluded.
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On September 21, 2017, defendant, now represented by counsel, filed a motion to enforce
the parties’ stipulated order and set aside the referral. Defendant argued that the parties had
agreed that defendant would not pay child support in exchange “for settling all other matters then
pending between the parties.” Defendant explained that there was no justification for revisiting
the child support issue because there had been no change in circumstances. The motion
requested the court “to enforce the terms of the contract entered into by the parties” and “set
aside the order referring the issue of child support.”
In answer, plaintiff acknowledged that the parties could agree to an amount of child
support less than that calculated by the MCSF. But plaintiff contended that the amount agreed to
in the stipulated order did not satisfy the requirements in MCL 552.605(2) for deviating from the
MCSF, and, therefore, the order could not be enforced. Alternatively, plaintiff argued that there
had been a change in circumstances necessitating revisiting child support because, when the
stipulated order was signed, plaintiff anticipated that defendant would care for, and be financially
responsible for, the children during her parenting time, which had not happened. Lastly, plaintiff
pointed out that the stipulated order was not necessarily binding on the parties because the
parties could not bargain away the children’s right to support.
On October 9, 2017, the trial court held a hearing on defendant’s motion opposing the
referral. The parties argued in line with their briefs. After listening to the arguments, the trial
court ordered that the case be referred, but noted that it was not “necessarily going to order child
support.” It explained that it “just want[ed] to know where the guidelines would place it if [the
court] were to order it.” The trial court also explained that it planned to have the parties before it
again “once we have a report.”
Following the parties meeting with a referee, the referee recommended that defendant
pay plaintiff $648 per month in child support. Defendant objected to the referee’s findings,
arguing that the parties should be held to their agreement outlined in the stipulated order, that
there had been no change in circumstances to justify a deviation from that order, that the
referee’s calculation of child support was too high, and that, if nothing else, a deviation from the
referee’s recommendation was warranted.
On December 18, 2017, the trial court held a hearing on defendant’s objection. At the
hearing, plaintiff’s counsel argued that child support was necessary because there were numerous
unexpected expenses that came up for the children, including their participation in
extracurricular activities and an increased cost for plaintiff’s health insurance. In response,
defendant’s counsel emphasized that numerous things were given up in exchange for the
no-child-support agreement, including a resolution of the then-impending custody and
change-of-domicile disputes. After hearing the parties’ arguments, the trial court took the matter
under advisement.
On January 10, 2018, the trial court issued a written opinion and order. The trial court
recognized that “[t]he parties’ agreed to settle the case by setting child support at zero and giving
[plaintiff] full custody of the minor children.” The trial court then acknowledged MCL 552.605
(which explains when a deviation from the MCSF is allowable) and caselaw interpreting it. The
trial court then provided, in relevant part:
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Stipulations by the parties as to child support are not binding on the court,
which has the power to provide proper maintenance for the children, even if one
parent has released the other from his or her support obligation. Thus, even if
[Plaintiff] knowingly and willingly entered into an agreement bargaining child
support for physical custody, the overriding concern of matters of child support is
the welfare of the children, and an agreement between the parties regarding
support does not suspend the authority of the court to enter an order for adequate
support.
This Court finds no reason to change child support. As part of the
settlement agreement by both parties, they each agreed to set child support at zero
so the plaintiff father could have custody of the minor children and so the
defendant mother could afford the travel expenses to get the children to Michigan
and back to where [defendant] resides. Therefore, because this was part of the
settlement agreement, and if this Court was inclined to change child support, this
Court would also revisit all issues regarding that settlement[,] This Court, in its
discretion, will not grant Plaintiff’s motion on those grounds. Therefore,
Plaintiff’s motion is DENIED. [Footnotes omitted.]
Plaintiff now appeals that opinion and order by leave granted.
II. STANDARD OF REVIEW
As detailed in Holmes v Holmes, 281 Mich App 575, 586-587; 760 NW2d 300, 307
(2008):
We review for an abuse of discretion child support orders and the
modification of such orders. Peterson v Peterson, 272 Mich App 511, 515; 727
NW2d 393 (2006). However, “[w]hether a trial court properly operated within
the statutory framework relative to child support calculations and any deviation
from the child support formula are reviewed de novo as questions of law.” Id. at
516. An appellate court also reviews de novo a trial court’s finding “derived from
an erroneous application of law to facts.” Beason v Beason, 435 Mich 791, 804-
805; 460 NW2d 207 (1990). To the extent that the circuit court’s ruling involves
statutory construction, this Court also applies review de novo. Fisher v Fisher,
276 Mich App 424, 427; 741 NW2d 68 (2007).
The existence of a contract involves a question of law, which we review
de novo. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d
766 (2006). Contract interpretation also presents a question of law, again subject
to review de novo. Reed v Reed, 265 Mich App 131, 141; 693 NW2d 825 (2005).
A divorce judgment “entered upon the settlement of the parties . . . represents a
contract, which, if unambiguous, is to be interpreted as a question of law.” In re
Lobaina Estate, 267 Mich App 415, 417-418; 705 NW2d 34 (2005).
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III. ANALYSIS
The parties entered a stipulated order providing that “[t]here shall be no child support
ordered to be paid.” The parties then operated under that order for several months. That order is
not on appeal and cannot be reviewed by this Court. See Kosch v Kosch, 233 Mich App 346,
353; 592 NW2d 434 (1999) (“Defendant’s failure to file an appeal from the original judgment of
divorce, pursuant to MCR 7.205(A) or (F), precludes a collateral attack on the merits of that
decision. By failing to appeal the original judgment of divorce, defendant has effectively
stipulated her consent to its provisions, including the original determination of child support.
Defendant’s claim that the original agreement was defective on its face is not properly subject to
review by this Court at this time.”). Rather, the order on appeal is the trial court’s order denying
plaintiff’s request to modify the parties’ stipulated order for child support.
While it is true that a court can generally only modify orders for child support upon a
showing of a change in circumstances justifying the modification, see MCL 552.17; Aussie v
Aussie, 182 Mich App 454, 463; 452 NW2d 859 (1990), “[w]hen a court order does not provide
for child support, such maintenance may later be provided by the court and does not depend
upon a change of circumstances,” Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446
(1989). Thus, the parties’ arguments over whether there was a change in circumstances
justifying modification are not relevant to deciding the case.2
The question, then, is whether the trial court correctly decided that it should not modify
its previous child support order and that the parties should be held to their agreement that
defendant not pay child support. MCL 552.605(3) states that a court is not prohibited “from
entering a child support order that is agreed to by the parties and that deviates from the child
support formula, if the requirements of subsection (2) are met.” (Emphasis added.) MCL
552.605(2) states:
(2) Except as otherwise provided in this section, the court shall order child
support in an amount determined by application of the child support formula
developed by the state friend of the court bureau as required in section 19 of the
friend of the court act, MCL 552.519. The court may enter an order that deviates
from the formula if the court determines from the facts of the case that application
of the child support formula would be unjust or inappropriate and sets forth in
writing or on the record all of the following:
2
Even if a change in circumstances was necessary before the trial court could modify the support
order, the trial court did not deny plaintiff’s motion to modify child support because it found that
there was no change in circumstances. Instead, the trial court simply addressed whether a
different amount of child support was proper. Assuming that the trial court needed to find a
change in circumstances before addressing a modification to child support, the court must have
implicitly decided that there was a change in circumstances—otherwise, it could not have
addressed a potential modification to child support in the first instance.
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(a) The child support amount determined by application of the child
support formula.
(b) How the child support order deviates from the child support formula.
(c) The value of property or other support awarded instead of the payment
of child support, if applicable.
(d) The reasons why application of the child support formula would be
unjust or inappropriate in the case.
The stipulated order acknowledges that the parties’ agreement was “likely a deviation
from whatever the support guidelines will be,” but the trial court entered this order that deviates
from the MCSF without considering the criteria in MCL 552.605(2)(a)-(d). That order, however,
is not on appeal. But in upholding that order in the order that is on appeal, the trial court again
failed to adequately justify its deviation from the MCSF. 3 Compare Kosch, 233 Mich App at 353
(“Defendant never appealed that original order and, while we acknowledge that the court did not
comply with the formalities of the statute in deviating from the child support formula, in the
order currently being appealed, the court, as noted above, meticulously set out its reasoning and
addressed the concerns expressed by appellant about the earlier judgment.”).
In Burba v Burba, 461 Mich 637, 644; 610 NW2d 873 (2000), our Supreme Court held
that “the criteria [in MCL 552.605(2)(a)-(d)] for deviating from the formula are mandatory.”4
The Burba Court emphasized that “[t]he importance the Legislature attached to courts carefully
articulating these factors when deviating from the formula cannot be underestimated, for the
Legislature prescribed their use when courts deviate from the formula in no less than eight
different sections of the Michigan Compiled Laws.” Id. “To impress upon the courts the gravity
of deviating from the formula, the Legislature has required them to meticulously set forth these
factors when deviating.” Id. at 645-646. “Thus, as required by MCL 552.605(2), when
deviating from the formula, the trial court fulfills its statutory duty only when the court has
articulated its rationale in accordance with subsection 2(a) through (d).” Peterson, 272 Mich
App at 517.
As stated above, when the trial court entered the September 2016 stipulated order that
deviated from the MCSF, it did not fulfill its statutory duty under MCL 552.605(2) by
3
Nothing in MCL 552.605 states that the factors in subsection 2 for deviating from the MCSF
should only be considered in an initial support order. Rather, based on the text, it seems that
those factors should be considered any time a court “enter[s] an order that deviates from the
formula . . . .” MCL 552.605(2).
4
“The Burba Court analyzed MCL 552.17(2), which, at the time Burba was decided, included
the same language as MCL 552.605(2). Subsection 2 of MCL 552.17 was deleted in 2001, and
MCL 552.605 was amended that same year. 2001 PA 106 and 107. Therefore, Burba remains
controlling authority.” Peterson, 272 Mich App at 517 n 4.
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articulating its rationale for deviating from the MCSF in accordance with subsection 2(a) through
(d). When the trial court later refused to modify that order, it reasoned:
As part of the settlement agreement by both parties, they each agreed to set child
support at zero so the plaintiff father could have custody of the minor children and
so the defendant mother could afford the travel expenses to get the children to
Michigan and back to where [defendant] resides. Therefore, because this was part
of the settlement agreement, and if this Court was inclined to change child
support, this Court would also revisit all issues regarding that settlement[,] This
Court, in its discretion, will not grant Plaintiff’s motion on those grounds.
Though the record is clear that the MCSF calculated child support at $648 per month, the
trial court never stated so in its opinion and order. See MCL 552.605(2)(a). Nor did the trial
court acknowledge that its ordered amount of $0 per month in child support deviated from this
formula, let alone that it deviated by $648 per month. See MCL 552.605(b). The court did,
however, acknowledge that defendant paying for the children’s travel expenses was value
awarded instead of payment of child support, see MCL 552.605(c), but it appeared to do so in the
context of explaining why the $0 per month child support was a bargained-for exchange.
With respect to the final criterion, the trial court failed to adequately explain why
application of the MCSF “would be unjust or inappropriate in this case.” MCL 552.605(d). It
reasoned that child support should be zero “because [that amount] was part of the settlement
agreement, and if this Court was inclined to change child support, this Court would also revisit
all issues regarding that settlement.” But “[i]t is a well-established principle in Michigan that
parties cannot bargain away their children’s right to support.” Laffin v Laffin, 280 Mich App
513, 518; 760 NW2d 738, (2008). That is why MCL 552.605(2) was implemented as a
safeguard for trial courts to “ensure that a child support order is just, even if the parties agree to a
support order that deviates from the guidelines.” Id. at 520. Thus, that the parties agreed to no
child support does not necessarily make application of the MCSF unjust or inappropriate.
Likewise revisiting the settlement issues does not make application of the MCSF unjust or
inappropriate. The MCSF amount was never considered in the original settlement agreement,
but it should have been. It therefore appears that, when now considering the MCSF amount of
child support, those issues should be revisited.
In sum, the trial court only considered, at best, one of the four criteria in MCL 552.605(2)
for deviating from the MCSF. As explained in Burba, 431 Mich at 644, “the criteria for
deviating from the formula are mandatory.” Consequently, the trial court erred as a matter of
law when it deviated from the formula without establishing the mandatory, requisite grounds for
doing so.
Defendant argues that, if this Court concludes that the trial court did not comply with the
requirements of MCL 552.605(2), this Court should nonetheless affirm under a theory of
“substantial compliance.” Yet defendant ignores that “[i]t is a cardinal rule of statutory
construction that a clear and unambiguous statute warrants no further interpretation and requires
full compliance with its provisions, as written.” N Concrete Pipe, Inc v Sinacola Companies-
Midwest, Inc, 461 Mich 316, 320; 603 NW2d 257 (1999). In N Concrete Pipe, our Supreme
Court delved into a “substantial compliance” theory because, in the act being analyzed (the
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Construction Lien Act), “the Legislature provided an exception to that [full compliance] rule, in
the form of the ‘substantial compliance’ provision.” Id. at 320-321. There is no “substantial
compliance” provision in MCL 552.605, so defendant’s argument is unpersuasive.
Defendant also argues that based on contract principles, the parties’ agreement must be
enforced. While a contract must generally be enforced as written absent any ambiguity,
Innovation Ventures v Liquid Mfg, 499 Mich 491, 507; 885 NW2d 861 (2016), “contracts
founded on acts prohibited by a statute, or contracts in violation of public policy, are void,”
Allard v Allard, 318 Mich App 583; 899 NW2d 420 (2017). “In ascertaining the parameters of
our public policy, we must look to policies that, in fact, have been adopted by the public through
our various legal processes, and are reflected in our state and federal constitutions, our statutes,
and the common law.” Rory v Continental Ins Co, 473 Mich 457, 471; 703 NW2d 23 (2005).
See also Skutt v City of Grand Rapids, 275 Mich 258, 265; 266 NW 344 (1936) (“The public
policy of the government is to be found in its statutes[.]”) (Quotation marks and citation
omitted.)
While the parties’ child support agreement that deviated from the MCSF was not, itself,
necessarily against public policy, the court could not incorporate that agreement into an order
unless it considered the criteria in MCL 552.605(2). See MCL 552.605(3). Absent the court’s
consideration of those criteria, incorporating the agreement into a child support order violated a
Michigan statute. Our laws are clear that an agreement by the parties for child support that
deviates from the MCSF is only enforceable by court order if the court considers the criteria in
MCL 552.605(2). See MCL 552.605(3). Therefore, the court could not enforce the parties’
agreement through a court order unless/until those criteria are considered. For this reason,
defendant’s argument based on contract principles is unpersuasive.
On appeal, both parties mention Holmes, which is the most recent published case that
deals with an issue similar to the one now before the Court. We briefly discuss Holmes to
explain why that decision is inapposite to the instant case.
In Holmes, this Court concluded that the parties should be held to their agreement that
required plaintiff to pay defendant “an amount exceeding the guidelines[.]” Holmes, 281 Mich
App at 593. In so doing, the Holmes Court recognized that in other cases—namely Ovaitt v
Ovaitt, 43 Mich App 628; 204 NW2d 753 (1972), and Aussie, 182 Mich App 454—this Court
had “enforced voluntary agreements to pay additional child support incorporated into a divorce
judgment.” Holmes, 281 Mich App at 590. The Holmes Court recognized, however, that in
cases where the parties’ agreement limited a parent’s obligation to pay child support—namely
Johns, 178 Mich App 101, and Ballard v Ballard, 40 Mich App 37; 198 NW2d 451 (1972)—the
deviations were “strongly disfavored.” Holmes, 281 Mich App at 590. In concluding that the
parties should be held to their agreement, the Holmes Court emphasized that the case before it
was similar to Ovaitt and Aussie, and dissimilar to Johns and Ballard. Id. at 592.
In contrast, because the parties’ agreement here limits defendant’s obligation to pay child
support, it is similar to Johns and Ballard, and dissimilar to Ovaitt and Aussie. That is, the
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parties’ agreed-upon deviation is “strongly disfavored.” Holmes, 281 Mich App at 590. For the
deviation to be permitted, the trial court was required to apply the criteria in MCL 552.605(2).5
As already explained, the trial court did not sufficiently apply the criteria in MCL 552.605(2) to
justify the parties’ agreed-upon deviation, and therefore erred as a matter of law by entering the
order permitting the deviation. See MCL 552.605(3) (“Subsection (2) does not prohibit the court
from entering a child support order that is agreed to by the parties and that deviates from the
child support formula, if the requirements of subsection (2) are met.”).
IV. CONCLUSION
Accordingly, the order denying plaintiff’s motion to order defendant to pay child support
is vacated, and the case is remanded for the trial court to either justify the deviation from the
MCSF using the mandatory criteria listed in MCL 552.605(2)(a)-(d), or to enter an order for
child support as calculated by the MCSF, see MCL 552.605(2) (“Except as otherwise provided in
this section, the court shall order child support in an amount determined by application of the
child support formula developed by the state friend of the court bureau . . . .”). On remand, the
trial court is also permitted to revisit the settlement issues, if it sees fit.
Vacated and remanded. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Michael F. Gadola
/s/ James Robert Redford
5
Although Holmes was decided after Burba, the Holmes Court explained that, “Presumably,
because the guidelines deviations benefited the children, the circuit court and the parties never
considered that they should explain on the record the reasons for rejecting the MCSFM formula.”
Holmes, 281 Mich App at 589 n 6.
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