Gibsonv.Gibson

Not overruled or negatively treated on appealinfoCoverage
Michigan Court of AppealsOct 21, 1981
110 Mich. App. 666 (Mich. Ct. App. 1981)
110 Mich. App. 666313 N.W.2d 179

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Docket No. 53979.

Decided October 21, 1981.

Paul L. Decocq, for plaintiff.

Michael J. McGivney, for defendant.

Before: DANHOF, C.J., and M.F. CAVANAGH and D.R. FREEMAN, JJ.

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


D.R. FREEMAN, J.

Defendant appeals by right the denial of a motion for a reduction in child support payments. Plaintiff cross-appeals the denial of her motion for a determination of the amount to be paid by defendant's estate for the education beyond high school of her son.

Roberta and Earl Gibson were divorced on August 2, 1972. Both parties signed the judgment approving it as to form and content. Plaintiff Roberta Gibson was awarded custody of their minor child. Defendant was ordered to pay child support of $43 per week and $9 per week for health and medical insurance. These payments were to continue until the child reached the age of 18 or graduated from high school or until further order of the court. The judgment reserved to the trial court the right to determine the amount to be paid by the defendant for the education of the child beyond high school.

Earl Gibson died on May 20, 1979. His then wife, Rita Gibson, was appointed personal representative of his estate. The minor child began to receive social security benefits payable upon his father's death.

Rita Gibson petitioned the circuit court for a modification of the judgment of divorce, requesting that child support payments be discharged to the extent of the amount of social security benefits received by the child. Plaintiff subsequently asked the court to determine an amount of money to be paid by defendant's estate toward the child's college education.

We first review the trial court's ruling that the social security benefits received by the child could not be credited against the amount due as child support. The court ordered the estate to continue to make full payment of the weekly child support. In reaching his decision, the judge stated that he viewed social security as a "tax" which did not relieve an estate of an obligation to pay support. He specifically noted that the defendant had made no provision in his will for his son.

The majority of jurisdictions which have addressed the issue have apparently held that social security benefits paid to a child on the parent's account should be automatically credited against child support obligations owed by that parent. See Schulze v Jensen, 191 Neb. 253; 214 N.W.2d 591 (1974), Binns v Maddox, 57 Ala. App. 230; 327 So.2d 726 (1976), Horton v Horton, 219 Ga. 177; 132 S.E.2d 200 (1963), Cohen v Murphy, 368 Mass. 144; 330 N.E.2d 473 (1975), Andler v Andler, 217 Kan. 538; 538 P.2d 649 (1975) (all disability benefits), McClaskey v McClaskey, 543 S.W.2d 832 (Mo App, 1976) (retirement benefits). Whether these cases all hold that credit is automatic or is within the trial court's discretion is unclear since the commencement of social security payments to the child was usually accompanied by a substantial reduction in the earning power of the noncustodial parent.

In the following cases, courts have explicitly held that the crediting of social security payments against child support obligations is discretionary with the trial court and depends on the circumstances of each case: Fowler v Fowler, 156 Conn. 569; 244 A.2d 375 (1968), Chase v Chase, 74 Wn.2d 253; 444 P.2d 145 (1968), Joachim v Joachim, 57 App. Div. 2d 546; 393 N.Y.S.2d 63 (1977), cert den 434 U.S. 1066; 98 S Ct 1242; 55 L Ed 2d 767 (1978), Cash v Cash, 234 Ark. 603; 353 S.W.2d 348 (1962).

We have found only one reported case involving social security death benefits paid to a child on account of the death of his noncustodial parent. In Cohen v Cohen, 246 So.2d 581 (Fla App, 1971), the parties had agreed to a specific amount of child support to be paid by the father. During the minority of the children, the father died. The court upheld the trial court's ruling that the estate was not entitled to a partial credit or discharge for death benefit payments made to the minor children.

Those decisions holding that social security payments are only one factor to be considered are consistent with Michigan law governing modification of child support orders. All relevant factors must be considered by the trial court in deciding a request for modification. Rutledge v Rutledge, 96 Mich. App. 621, 624; 293 N.W.2d 651 (1980), McCarthy v McCarthy, 74 Mich. App. 105, 109; 253 N.W.2d 672 (1977), Cymbal v Cymbal, 43 Mich. App. 566, 567; 204 N.W.2d 235 (1972). This rule stems from the statutory authority contained in MCL 552.17; MSA 25.97 allowing the court to revise and alter its decree concerning the care, custody and maintenance of the children "as the circumstances of the parents, and the benefit of the children shall require". On remand, the trial court should consider all relevant circumstances, including the child's income from social security payments. While these payments may not require a reduction in child support, the payments must be considered in determining an appropriate level of support.

Plaintiff challenges the trial judge's refusal to order that an amount be paid by the estate for the education of the child beyond high school. In the present case, the judgment of divorce provided:

"It is further ORDERED and ADJUDGED that this court reserves the right to determine the amount to be paid by defendant for the education of the said minor children beyond high school."

We first reject the estate's claim that the trial court was without jurisdiction to order support payments for any period after the child reached the age of majority. Although the judgment of divorce was entered subsequent to enactment of the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., the parties expressly provided for a determination of the amount to be paid by the father in the judgment of divorce. This judgment was approved as to form and content by both parties. When agreed to by the parties, the provision for a determination by the court of an amount to be paid for educational expenses, even though this would extend support beyond the child's minority, is a valid exercise of the court's discretion and within its power under the statutory authority allowing such provision for minor children. Wagner v Wagner, 105 Mich. App. 388, 393; 306 N.W.2d 523 (1981), Ovaitt v Ovaitt, 43 Mich. App. 628, 638-639; 204 N.W.2d 753 (1972). See also McNames v McNames, 93 Mich. App. 477, 481; 286 N.W.2d 892 (1979), and Sumerix v Sumerix, 106 Mich. App. 7; 307 N.W.2d 727 (1981).

The primary reason stated by the trial judge for refusing to set an amount to be paid for educational expenses was his personal opinion that college students should pay for their own education. The explicit provisions in the judgment of divorce indicate that the parties did not share his view. It was error for the judge to allow his personal opinion to enter into his determination of an amount to be paid toward educational expenses. On remand, the trial court should consider the "exceptional circumstances" described in Price v Price, 395 Mich. 6, 11, fn 5; 232 N.W.2d 630 (1975), in determining what amount, if any, should be paid toward the post-high school expenses of the child. Great weight should be given to the agreement of the parties in which they clearly envisioned that some type of education beyond high school would be undertaken.

Reversed and remanded for proceedings consistent with this opinion.

No costs, neither party having prevailed in full.


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