In a Published opinion the Michigan Court of Appeals affirmed a Trial Court’s modification of negotiated child support.
At the time of the Parties divorce they had two minor children age 16 and 14 years old.
The Michigan Child Support Formula (MCSF) indicated Mother was to pay $1,051 in monthly child support. In lieu of monthly payments, the parties agreed that Mother would transfer $100,000 from one of her retirement accounts to Father.
Their Judgment (which indicated the Parents would have equal parenting time) stated
The parties acknowledge, and as reflected in the [UCSO] Deviation Addendum, and the Settlement Agreement between the parties dated March 20, 2020, Wife has prepaid Husband $100,000 from her 401K as outlined in paragraph 19 in lieu of any claim he may currently have or have in the future for child support from Wife to Husband.
Although the documents indicated that Mother had already transferred $100,000 to Father, that transfer had not been completed and it soon became clear that the equal parenting-time arrangement would not go as planned. The children were living with their mother fulltime and spent “maybe one overnight per month” with their father.
Seven months after entering into the consent judgment of divorce, Mother filed a “motion for relief from judgment and child support.” to setting aside the $100,000 transfer provisions in the divorce judgment, and that the court recalculate the child support award based on her fulltime custody of the children.
Father contended that the $100,000 transfer was part of the property settlement and that
the court was bound by this division reached through fair negotiation and that no motion to modify child support would eliminate Mother’s duty under the property settlement to transfer $100,000 to him
Mother further challenged Father’s characterization of the $100,000 transfer as part of the property division, pointing out that the plain language of the consent judgment and UCSO deviation addendum provided that the one-time transfer was in lieu of child support.
A Friend of the Court (FOC) referee conducted a hearing.
In the referee’s report and recommendation, the referee found “a sufficient change in circumstances to review child support,” as Mother claimed the children were living almost exclusively with her. But pursuant to MCL 552.603, any recommended change in the support order could be prospective only. The referee agreed with Father that the parties were bound by that agreement. The proper method to attack that settlement provision was through an appeal of the divorce judgment, not in a collateral attack to the child support order, the referee ruled:
Mother objected to the FOC recommendation and the trial judge conducted a de novo and agreed that consent divorce judgments are contractual in nature and must be enforced as negotiated however that it was clear that the $100,000 was for child support,” Yet, Father had not exercised his parenting time with the children to warrant the award of any child support amount. Accordingly, the court found the motion for relief from judgment supported. The court relied on MCR 2.612(C)(1)(c) and (f), finding that at a minimum, extraordinary circumstances justified setting aside the judgment to achieve justice. The court explained, Father’s rights were rights were not detrimentally affected by him not receiving child support for the children that he didn’t care for and entered an order providing that Shana was “not required to transfer $100,000 to” Brian and referring the matter to the FOC for recalculation of the parties’ child support obligations retroactive to the date Shana filed her motion.
This appeal ensued.
Father argued that the one-time $100,000 transfer is part of the property settlement, not a child support award. That a consent judgment is treated as a contract and is interpreted as such and are interpreted according to their plain language and enforce them as written.
The Court concluded that the $100,000 transfer is child support and even if the parties to a divorce negotiate their own child support arrangement and memorialize it in a consent judgment, that award remains modifiable.
Father contended that child support orders cannot be modified retroactively absent very limited circumstances. The Court founds that both parties understood at signing that the transfer would occur in the future. And as a future child support payment, the award was modifiable.
That the Mother had established that circumstances had changed since entry of the consent judgment and UCSO deviation addendum. Specifically that the parties had anticipated sharing equal parenting time, justifying an award of child support from Mother to Father to ensure the children’s needs were met in his care. In reality, Father exercised minimal parenting time. The existing child support order diverted funds away from the primary custodian that should be available for the children’s care. Modification was required to benefit the children following this change in circumstances and affirmed the Trial Court’s decision.