*1 LaVance Joslin v LaVANCE JOSLIN v Marquette. Decided at Submitted Docket No. 85845. 9, September 1986. Shelly against in Schoolcraft Danny filed suit Joslin son, Court, seeking custody Lucas J. of their to obtain Circuit subsequently petitions the amount to reduce Joslin. Joslin support paying support to eliminate child of child court, F. arrearages The William had accumulated. which J., custody Hood, grant and denied his to Joslin refused to exception of child petitions, was relieved that Joslin with the during any arrearages time Lucas support which accumulated days or more. Joslin for a of seven was in Joslin’s care appealed. Appeals held: The Court of denying in did abuse its discretion 1. The trial court support obligation. petition The his child to reduce Joslin’s ability to within Joslin’s is a minimal sum and is amount Furthermore, allege prove a in Joslin failed request the to reduce the circumstances sufficient support. of child amount should be reduced 2. Joslin’s child during period in which he amount which accumulated dependent custody physical children and was of his two other time, support. upon At that adc benefits as his sole source occupied minor children who Joslin was with the care child care at some would have alternative acquired employment pay Joslin had he so as to cost to for Lucas. part, in reversed in and remanded for further Affirmed proceedings. ruling majority’s from the eliminat- J. dissented References 2d, Am Jur Parent and Child 50-84. §§ Change parents as in financial condition or needs of or children ground payments. of decree for child for modification ALR2d 7. court, motion, modify provisions of divorce Power of on its own children, upon application for other relief. decree as to 16 ALR2d 664. 154 Opinion of the Court arrearage the child the time receiving Joslin had of his other two children and was benefits. He would hold the trial court did not abuse adc its discretion to eliminate Joslin’s child arrearage ordering and in him to from his *2 respects Judge future income. In all Gillis concurred with opinion. majority
Opinion of the Court Ability Support Pay — — — 1. Parent and Child Child Earn- ing Ability. parent’s setting A trial is court not limited to a actual income in support payments may child and consider unexercised earn. Support Support. — — 2. Parent and Child Child of Modification party petitioning support obliga- A a for modification of a child allege prove tion must and a in circumstances sufficient request. Support. — 3. Parent and Child Child parents’ A court must consider both abilities to as well as the determining support obliga- needs of the minor child in child tions. Support — — ADC Benefits. 4. Parent and Child Child A parent dependent upon who noncustodial as adc benefits of support payments sole source income is not liable for child employment where he is unable to seek he has of other minor children. by Partial Concurrence J. and Partial Dissent — — Support — 5. Parent and Child ADC Benefits Child Arrear- ages Earnings. — Future may properly A court refuse to a eliminate child arrear- age parent’s a time when the noncustodial sole payment source income was adc beneñts and order earnings. from future Upper Legal Services, Peninsula Inc Ken- (by neth Penokie), for plaintiff. Hollenbeck,
Peter J. for defendant. P.J., Before: T. M. J. Burns, and H. Gillis and M. J. JJ. Kelly, Joslin from right as of Plaintiff appeals
M. J. J. Kelly, his petitions court denying of the circuit an order eliminate payments to reduce child court also de- arrearages. The trial minor of the request nied por- from that appeal does not child but and reverse affirm in tion of the order. We part. of Lucas parents are the
Plaintiff and defendant 23, Although the Joslin, 1982. October James born here married, is not paternity have never parties together at living were parties disputed. The 1983, 4, on of their son’s birth and acknowledged paternity stipulated week, resolving payments following filed defendant paternity a action An order of child separation. their 13, 1983. on May entered a complaint December
On *3 peti- He subsequently of Lucas. and eliminate arrear- tions reduce child 8, hearing on March ages. Following a conducted 1985, the defen- trial court awarded that petitions, except dant and denied support arrearages was relieved Lucas in the during any accumulated was days care of for a seven or more. argues Plaintiff first on that the trial appeal court abused its discretion in denying petition support obligation to reduce his child as set forth 13, in the order of At agree. 1983. We do denied, time plaintiffs petition was self-employed per as a and earning woodcutter $50 Plaintiff mentally healthy week. and physically and offered no reason as to he is unable to why or part-time employ- obtain full-time additional A parent’s ment. trial court is not limited to a setting actual income in payments 504 154 501 may ability consider unexercised to earn. Wilkins, Wilkins 779, 149 Mich (1986). agree NW2d We with the trial court’s observation that per week is a minimal sum $21 and is within
Moreover, petition since this is a for modifica- a tion of child support obligation, plaintiff must allege and prove a in circumstances suffi- Wells, request. Wells v cient (1985). Mich App 733-734; 375 NW2d Plaintiff in this case has failed to do either. At the time the original per order week $21 entered, plaintiff had a bi-weekly income of $140, only which he also used to minor children previous from a marriage in his custody. Plaintiff’s income at the time of his modi- fication petition was but $50 week he no longer had any obligation for the care of the two other minor children. Given our de novo review case, of this we persuaded are that the trial court did not abuse its discretion in refusing to plaintiff’s reduce child support obligation below per week. $21
Plaintiff argues also the trial court erred in eliminate dur- the time that sole source of income was welfare. At the born, time Lucas was had primary physical custody of his two other children and was receiving public assistance bene- fits of every other week. He continued receive these benefits until February 1985, when the two began living with their mother. At time, about the same plaintiff commenced his wood-cutting employment.
We are persuaded that plaintiffs
*4
should be reduced
by the
amount
which
in which
plaintiff had physical
custody of his two other
Joslin v
adc benefits as
dependent upon
children and was
determining
support.
his sole source of
par-
consider both
a trial court must
obligations,
the needs of the
to
as well as
pay
ents’ abilities
able
plaintiff
to
how
was
minor child. We fail
see
responsi-
Lucas when
financially support
maintenance,
of
care and
daily
for the
ble
a situa-
children. This is not
his two other minor
unemployed and
tion in which
father was
plaintiff
to earn
free time within which
had considerable
the care of a minor
a week to contribute
$21
Rather,
occupied
with
plaintiff’s
child.
minor children who
the care of two
child care at some
required
have
alternative
would
so as
acquired employment
he
cost to
support.
week
being provided
To the
that Lucas was not
extent
care,
to the
he was entitled
adequate
support or
for the
provided
adc benefits which
same
find
of
other
two children. We
and care
inappropriate
it
that
would
paid out on
the state for adc benefits
reimburse
out on
paid
of Lucas but not
for those
behalf
solely
behalf of his other
two
To
of Lucas.
physical custody
did not have
being
minor
Lucas is
the extent
and care
the custo-
provided adequate support
by
need to
parent,
dial
there is no reasonable societal
arrear-
indigent
an
father with an onerous
saddle
this
age obligation. Under
the circumstances
case,
plaintiff’s arrearages
conclude that
should
we
prior
amount accumulated
be eliminated
5, 1985,
on which
February
date
transferred
to the
were
adc benefits
their mother and the date on which
entry
remand for
plaintiff were terminated. We
this opinion.
an order consistent with
400.63; MSA
decision is not based on MCL
Our
*5
App
154 Mich
501
Opinion of
Court
the
16.463,
require plain
since the trial court did not
obligation
tiff to meet his
out of
funds
the
through
he received
adc. The
court
in this
trial
Causley
adopted
case
approach
an
consistent with
LaFreniere,
250;
78 Mich
NW2d
Gonzalez,
(1977),
Gonzalez v
121 Mich
(1982),
although
Affirmed in part reversed and remanded for further proceedings consistent opin- with this ion. Jurisdiction retained. Burns, P.J.,
T. M. concurred. Joslin v J. H. Gillis,J. Partial Partial Concurrence Dissent in and dissent- (concurring J. part). agree majority I with the in refusing did not abuse its discretion trial court support obligation; how- to reduce ever, the trial court did not I also believe that when it refused to eliminate abuse its discretion the child of income sole source
the time which
*6
of his two other
the adc he received on behalf
LaFreniere,
Causley
78 Mich
children.
I find
Gonzalez v Gonza-
(1977),
250; 259 NW2d
(1982),
lez,