Radwayv.Radway

Michigan Court of AppealsFeb 7, 1978
81 Mich. App. 328 (Mich. Ct. App. 1978)

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Docket No. 31170.

Decided February 7, 1978.

Appeal from Livingston, Paul R. Mahinske, J. Submitted October 5, 1977, at Lansing. (Docket No. 31170.) Decided February 7, 1978.

Complaint by Brenda C. Radway against Richard M. Radway for divorce. Divorce granted, with alimony, child support and custody of the minor children awarded to plaintiff. Defendant petitioned to reduce his support payments and to obtain custody. The petition was denied and the plaintiff was awarded attorneys fees, costs and expenses. Defendant appealed. Remanded. On remand the court reaffirmed. Defendant appeals. Remanded.

Stiles, Fowler, Dudley Tuttle, for plaintiff.

Farhat, Burns Story (by Norman C. Farhat), for defendant.

Before: D.C. RILEY, P.J., and J.H. GILLIS and R.M. MAHER, JJ.


The parties to the dispute were married in 1963. They have two children. In October, 1969, plaintiff wife filed for divorce. In a consent judgment of divorce granted in November, 1972, plaintiff wife received custody of the two children. Additionally, defendant husband was ordered to pay support of $75 per week as well as alimony of $25 per week.

In January, 1975, defendant, who is a certified public accountant, was fired from or voluntarily left his father's business after a disagreement with his father. Defendant had been earning $30,000 annually but could not find a job after leaving the family business. During this period defendant paid only $50 per week in child support since his unemployment benefits were only $94 per week.

Defendant petitioned, in January, 1975, to reduce his support payments and in August, 1975, he sought to change the custody of the two children. In an April 1, 1976, opinion and in an order dated May 17, 1976, the trial court determined and ordered that custody should remain in the plaintiff. The trial court also found that defendant had an above average ability to earn sufficient income to pay the alimony and child support awarded in the divorce decree.

In a December 2, 1976, opinion the lower court awarded plaintiff $3,141.46 in attorney fees and $1,201.81 in costs and expenses.

Defendant's delayed appeal was granted on February 10, 1977, but further findings were required. The hearing on remand was held on April 1, 1977. In an opinion containing the requested findings of fact, the trial court reaffirmed its previous decision. Defendant now appeals the December 2, 1976, and the May 17, 1977, orders of the trial court.

The Child Custody Act of 1970, MCLA 722.21 et seq.; MSA 25.312(1) et seq., provides the general guidelines for appellate review of custody decisions:

"[A]ll orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." MCLA 722.28; MSA 25.312(8).

See, also, Bahr v Bahr, 60 Mich. App. 354; 230 N.W.2d 430 (1975).

It appears that both parents can support the children financially. The rest of the testimony dealt largely with the relationships between the parents and their children and the conception each child had of each parent. In making the determination of custody, the court must use the best interest of the child standard. Only if there is presented clear and convincing evidence that it is in the best interest of the child, will a court change a previous custody order. MCLA 722.27(c); MSA 25.312(7)(c). Examining the evidence in this case, we cannot say that the trial court committed an abuse of discretion in giving plaintiff-wife custody of the children.

We acknowledge that through an agreement of the parties, the children now reside with the defendant husband. We commend the parties for reaching such an accord on their own without the intrusion of the state into what should ideally be a private matter. Nevertheless, the trial court's decision is legally binding. While the parties may agree to a settlement inter se, they cannot usurp the legal function of this Court. In the instant case, however, we find no cause, at the present time, to interfere with the parties' arrangement.

The other two parts of the trial court's judgment to which defendant objects present us with greater difficulty. The trial court refused to reduce alimony and child support payments after defendant lost his job when his income declined from $30,000 per year to $6,000 per year.

The court deemed defendant had "a sufficient and better than average ability to earn income in sufficient amounts to defray the alimony awarded in the judgment of divorce [and] to pay the child support awarded in the judgment". At the time of the original hearing in this case, April 1, 1976, defendant was apparently employed, but had been unemployed in 1975. We have no information concerning the nature of his employment in April, 1976, when the first opinion was written or in May, 1977, after the trial court held the hearing on remand. We are not apprised of defendant's salary nor of his efforts, if any, to secure different employment both in 1975 and afterwards. Both of these factors are of paramount importance in evaluating defendant's obligation to pay past due alimony and child support.

While the trial court's conclusions of law seem correct, we must know the factual bases for those conclusions in order to adequately review the decision from which defendant appeals. Furthermore, any other factors which may have intervened in the period between the trial court's last decision and the present should be taken into account by the trial court. Such factors may shed light on defendant's ability or inability to pay the arrearage. For clarification of these areas, we must remand the cause to the trial court.

The matter of attorney fees poses another difficulty. In the trial court, plaintiff was awarded attorney fees, costs and expenses. As generally stated, the award of such fees and expenses rests in the sound discretion of the trial court. Schaffer v Schaffer, 37 Mich. App. 711; 195 N.W.2d 326 (1972), Schilleman v Schilleman, 61 Mich. App. 446; 232 N.W.2d 737 (1975).

The trial court, however, is not unfettered in its use of discretion. Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Gove v Gove, 71 Mich. App. 431; 248 N.W.2d 573 (1976), Mixon v Mixon, 51 Mich. App. 696; 216 N.W.2d 625 (1974). See, also, MCLA 552.13; MSA 25.93 which provides in pertinent part:

"In every action brought, either for a divorce, or for a separation, the court, in its discretion, may require either party to pay alimony for the suitable maintenance of the adverse party, * * * and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency."

The applicable court rule also requires that the party who moves for attorney fees shall allege facts showing that she or he is unable to bear the expense of the action without this aid. GCR 1963, 726.1.

In Mixon v Mixon, supra, the Court denied attorney fees to a party who "was in no financial stress". 51 Mich App at 703. There the Court properly considered as a factor those assets the moving spouse gained in the property settlement between the parties.

In Gove v Gove, supra, the Court found that the party who had been awarded attorney fees did not require them to proceed with her claim. The award was not essential to the party's ability to carry on or defend the action. 71 Mich App at 435.

In awarding attorney fees, a court should be ever mindful of the guidelines of Mixon and Gove. Reliance on general equitable principles without articulating any specific factors is insufficient. State Farm Mutual Automobile Insurance Co v Allen, 50 Mich. App. 71; 212 N.W.2d 821 (1973). On remand the trial court must weigh the awarding of attorney fees against the backdrop of Mixon, Gove, the court rule and the statute. Only if the moving party required the fees to carry on her action, should the court award them to her.

Remanded for proceedings not inconsistent with this opinion. We retain no jurisdiction.

No costs.