Herman v. Herman , 109 Mich. App. 107 ( 1981 )

109 Mich. App. 107 (1981) 310 N.W.2d 911

HERMAN
v.
HERMAN.

Docket No. 52004.

Michigan Court of Appeals.

Decided September 8, 1981.

Lyndon J. Lattie, for plaintiff.

Mark C. McCabe, for defendant.

Before: T.M. BURNS, P.J., and D.E. HOLBROOK, JR., and K.B. GLASER,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right a May 30, 1980, lower court order that amended the parties' judgment of divorce and instructed plaintiff to pay defendant $28 per week in child support on behalf of two of the parties' five children over whom defendant was awarded custody.

The single issue in this appeal is whether the trial judge abused his discretion in ordering plaintiff to pay the child support.

Upon petition of either parent or the friend of the court, a trial judge may modify the child support provisions of a divorce judgment if the petitioning party establishes a change in circumstances that would warrant a modification. Hentz v Hentz, 371 Mich 335; 123 NW2d 757 (1963), Andris v Andris, 77 Mich App 715; 259 NW2d 203 (1977). Although this Court affords de novo review to the trial judge's findings, great weight is given to the judge's decision in the matter. Krachun v Krachun, 355 Mich 167; 93 NW2d 885 (1959), McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1977). This Court will not reverse unless it is convinced that it would have reached a result different from that of the trial judge. Dunn v Dunn, 105 Mich App 793; 307 NW2d 424 (1981).

Plaintiff argues that the trial judge abused his discretion in ordering her to pay a percentage of her income but not less than a fixed sum. The case relied upon principally by plaintiff is Stanaway v Stanaway, 70 Mich App 294; 245 NW2d 723 (1976).

In Stanaway, the plaintiff was required to pay child support "in an amount equal to six (6%) percent of his adjusted gross income, as defined for federal income tax purposes, but not less than the sum of $165 monthly". Id., 295. This Court held that the imposition of this escalator clause was an abuse of discretion because it allowed continued alteration of the divorce decree as to the amount of support. Further, the clause focused exclusively on the financial circumstances of the plaintiff-husband while ignoring the complex factors related to the changing needs of the minor child.

In this case the trial judge used a percentage of plaintiff's current income to calculate an appropriate amount of support. The judge ordered each party to pay a fixed amount of support for the children in the custody of his or her former spouse. The amount of support is not variable and either party can petition for modification if and when circumstances change. Therefore, the holding of this Court in Stanaway does not apply to this case.

Plaintiff next argues that the trial judge abused his discretion in ordering her to pay support even though she has no steady income. We find no error. The record reflects that plaintiff does have a steady income, although the sources of her income and its amount do change from year to year. However, if plaintiff's income should substantially decrease, she may seek relief by petitioning the trial judge for a modification of her support obligation.

While it is true that plaintiff's earnings are substantially below those of her former husband, the record indicates that the trial judge took this discrepancy into consideration when he ordered defendant to pay substantially more support for the children in plaintiff's custody that plaintiff must pay for the children in defendant's custody. Nor does the fact that defendant's new wife earns $25,000 per year affect our decision. Defendant's new wife has no obligation to support the children born to plaintiff and defendant. Inasmuch as we cannot say that the trial judge abused his discretion in this matter, we must affirm.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.