Clarke v. Clarke
297 Mich. App. 172
| Mich. Ct. App. | 2012Background
- Marriage in 1992; one son born 1994.
- Consent divorce judgment entered 2007 adopting settlement terms; joint custody; no initial child support but conditions for future support.
- 2007 judgment contemplated future support only upon substantial departure from equal parenting time or catastrophic income change.
- Plaintiff lost job Oct 2007; sought custody change and child support Apr 2008; trial court found catastrophic income change and ordered defendant to pay $485/month, later reduced to $300/month (Nov 2008).
- 2010: son began residing exclusively with defendant; defendant petitioned to modify child support Jun 15, 2010; plaintiff sought to terminate defendant’s support obligation and have defendant pay him support.
- Trial court imputed plaintiff’s social security benefits as income; order retroactive to June 15, 2010; appeal granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Imputation of undisturbed SSA benefits as income | Clarke argues MCSF §2.01(C)(3) limits income to distributed SSA benefits. | Clarke contends benefits may be imputed under §2.01(G) for unexercised earning ability. | Trial court erred; benefits imputed only if unexercised ability shown and record insufficient. |
| Retroactive modification of child support | Notice of petition not received until July 7, 2010; modification improper from June 15, 2010. | Modification allowed to-date of notice per MCL 552.603(2) with discretion; no equitable considerations. | Remanded to determine retroactive date; modification limited to date notice was received. |
| Allocation of federal dependency tax exemption | Court lacked authority to shift exemption to defendant in 2010. | Exemption allocation is modifiable as part of child support order. | Change in circumstances supports moving exemption to defendant for 2010; not abuse of discretion. |
| Standards for imputing income under MCSF | Court misapplied 2.01(G)(2) factors; did not assess actual ability to earn. | Imputation appropriate due to voluntary elimination/inability to earn. | Remanded to apply 2.01(G)(2) factors; determine actual ability and likelihood of earning. |
| Reason for deferring/altering SSA benefits | E-mails and motives relevant to imputation decision. | Economic incentive may justify imputation; motive may be investment strategy. | Remanded to determine motivation; if investment-driven, may negate unexercised ability to earn. |
Key Cases Cited
- Malone v. Malone, 279 Mich App 280 (Mich. Ct. App. 2008) (abuse of discretion standard; income imputation context)
- Stallworth v. Stallworth, 275 Mich App 282 (Mich. Ct. App. 2007) (de novo review for legal questions, factual findings reviewed for clear error)
- Carlson v. Carlson, 293 Mich App 203 (Mich. Ct. App. 2011) (imputation requires adequate fact-finding and actual ability to earn)
- Ghidotti v. Barber, 459 Mich 189 (Mich. Supreme Court 1998) (guidelines for imputing potential income; factors list)
- Moore v. Moore, 242 Mich App 652 (Mich. Ct. App. 2000) (pension/benefit timing as voluntary reduction or prudent investment)
- Rohloff v. Rohloff, 161 Mich App 766 (Mich. Ct. App. 1987) (consideration of motivation in voluntary income reduction permissible)
- Aussie v. Aussie, 182 Mich App 454 (Mich. Ct. App. 1990) (modification standard; change in circumstances required)
- Frain v. Frain, 213 Mich App 509 (Mich. Ct. App. 1995) (court authority to modify child support orders)
- Fear v. Rogers, 207 Mich App 642 (Mich. Ct. App. 1994) (tax exemptions as part of child support order modification)