Father pays no child support!

GOOD MORNING FLINT
9/29/07
By Terry Bankert
attorneybankert@yahoo.com
full article at
http://terrybankert.blogspot.com/

Discussion may be found at http://flinttalk.com/viewtopic.php?p=16253#16253


The following was prepared to be presented on my radio show today "Know the Law" on WFLT 1420 am radio 9 am every Saturdays.

Father has income though modest and high personal medical expenses does not have to pay child support!

I talk often about how the court will impute income to a parent who is not working.
Imputing means that they will be treated as if they have a minimum wage income for instance.

Today we will look at a case when the father has no meaningful income, and therefore has to pay no child support.

The case is called Erdman recently decided on by the Michigan Court of Appeals 9/18/2007.

It is a case out of Ingham County.

In this case the maternal great-grandparents could not get child support from the father when the child was placed with them.

Issues: Child support; Whether the trial court properly set the respondent-father’s child support obligation at zero; Borowsky v. Borowsky; MCL 552.605(2); Whether the trial court satisfied the requirements of § 605(a)-(d) in determining respondent’s child support obligation; Burba v. Burba (After Remand)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Department of Human Servs. v. Erdman
e-Journal Number: 37127
Judge(s): Per Curiam – Meter and Fort Hood; Dissent – Kelly
[Summary-trb]

The trial court did not abuse its discretion in concluding the respondent-father should have no financial obligation for child support based on his inability to work and his medical expenses.

The Parents in their domestic procedings had an order or agreement where The child’s mother initially had physical custody and she and father agreed he would not pay child support.

The mother later lost custody as the result of child protective proceedings.

The child was placed with petitioner-Fase and his wife, the maternal great-grandparents.
The trial court noted fathers medical records indicated he suffered from a variety of neurological and cognitive disorders substantially limiting his ability to work, and could not earn enough to support himself at a minimal level.

The trial court held father was not capable of paying child support.

The trial court also noted respondent had significant expenses in connection with his medications. Petitioners argued the trial court failed to satisfy all the requirements in § 605 in determining respondent’s support obligation. The court agreed the trial court did not perfectly set out the information as required by the statute, but held the trial court’s substantial compliance was sufficient.

The court concluded respondent’s "heavy medical expenses in light of his modest income, put the trial court’s decision to depart from the child support formula and enter an award of zero, within the range of principled outcomes." Affirmed.
- end summary

[The following is the court of appeals decision my comments are in a bracket , and I have changed some spacing to make easier to read. I have changed most of the respondent’s to father. Where material is deleted it is shown by ....[-trb].
-
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
DEPARTMENT OF HUMAN SERVICES and
WAYNE FASE,
Petitioners-Appellants,
UNPUBLISHED
September 18, 2007
V No. 266791
Ingham Circuit Court
Family Division
RICHARD ERDMAN,
LC No. 2005-001934-DS
Respondent-Appellee.
Before: Meter, P.J., and Kelly and Fort Hood, JJ.
PER CURIAM.
Petitioners [maternal grand parents-trb]appeal as of right from the order of the family division of the circuit court setting respondent’s [ respondent is father and I am changing the term respondent for father.-trb]child support obligation in connection with his minor daughter at zero.
We affirm. This case is being decided without oral argument in accordance with MCR 7.214(E).
The child was born in 1998. The child’s mother initially had physical custody, and she
and father agreed that the latter would not pay any child support.

The mother later lost custody as the result of child protective proceedings. The child was placed with petitioner Fase and his wife, the maternal great-grandparents. At the time of the order appealed from in this case, the custody matter remained open, and father was entitled to parenting time.

The trial court [ the trial court is the local County Circuit Court family division-trb] concluded that father should have no financial obligation for child support on the grounds that his medical records "indicate that he suffers from a variety of nuerological [sic] and cognitive disorders that substantially impair his ability to work," and thus
he "cannot earn enough money to support himself at a minimal level" and "is not capable of
paying child support." In its remarks from the bench, the court also noted that father had
significant expenses in connection with his medications.

"It is well settled that children have the right to receive financial support from their
parents and that trial courts may enforce that right by ordering parents to pay child support."
Borowsky v Borowsky, 273 Mich App 666, 672-673; ___ NW2d ___ (2007).

"However, once a trial court decides to order the payment of child support, the court must ‘order child support in an amount determined by application of the child support formula . . . .’" Borowsky, supra at 673, quoting MCL 552.605(2).

A court may deviate from that formula if the court "determines from
the facts of the case that application of the child support formula would be unjust or
inappropriate . . . ." MCL 552.605(2).


A trial court’s decision to deviate from the child support formula is reviewed [ by the Michigan Court of Appeals-trb]for an abuse of discretion. Borowsky, supra at 672. "An abuse of discretion occurs when a court selects an outcome that is not within the range of reasonable and principled outcomes." Id.

The court’s factual findings for the purposes of determining the child support amount are reviewed for clear error. Id.

Petitioners argue that the trial court failed to satisfy all the requirements set forth in MCL
552.605 in determining father’s child support obligation.

The statute requires a court deviating from the formula to state what the formula ordained, the extent of the deviation, the values of any non-cash awards, and the reasons why application of the formula would be unjust or inappropriate. MCL 552.605(a)-(d).

We agree that the trial court did not perfectly set forth
the information as required by the statute, but we regard its substantial compliance in this
instance as sufficient.

The trial court listed a recommendation under the formula as $266 per month in base
child support, plus $24 per month for health care, thus impliedly adopting the prosecuting
attorney’s recommendation.

Petitioners [ the maternal grand parents-trb] suggest that this recommendation was probably
erroneously high, having been calculated on the basis that father could earn $15,000 per
year, [ the yearly rate of minimum wage is $14,495-trb]and state that father’s unrebutted testimony put his income at $8,800 per year, or $733 per month. [NOTE: father does claim income.-trb]

Petitioners cite a page of the hearing transcript in support of the latter figures, but
father’s testimony was unclear, and we could not find definite figures anywhere in the
transcript.1

For these reasons, we reject petitioners’ argument that the trial court failed to state
what the obligation would be under the child support formula.

The trial court did not state what the difference was between what the child support
formula indicated and what was actually ordered, but we are untroubled that the court did not
separately specify that the difference between the recommendation amount and zero actually
awarded equals the recommendation amount.

Similarly, that the court did not provide any values
for non-cash awards is of no moment, because there is no indication that any non-cash awards
are at issue here.

To remand this case to have the trial court add information to its order that is
so obviously ascertainable from what the order already indicates would be to elevate form over
substance.2

1 Father testified that the $15,000 total did not include the material expenses involved with
his contracting business, but he provided no elaboration. He also stated that in the prior year he
"put in [his] pocket about 800 bucks," but he was not clear regarding from where the eight
hundred dollars derived.

2 What this Court had to say about overly fastidious insistence on formal adherence to certain
minutiae of sentencing procedure seems on point here: "To . . . require . . . verbal descriptions of
obvious mental processes . . . elevates form over substance and creates an unnecessary burden to
an already overformalized record-making procedure." People v Bowens, 119 Mich App 470,
(continued…)


We agree with petitioners that the trial court’s findings concerning father’s physical
and mental limitations on his ability to generate income merely detail a consideration already
accounted for in the child support formula. See Burba v Burba (After Remand), 461 Mich 637,
648-649; 610 NW2d 637 (2000) (disapproving of the use of a factor accounted for in the formula
as a reason for deviating from the formula).

However, petitioners admit that father’s extraordinary medical expenses could justify a deviation.3

We agree that father’s expenses in attending to the plethora of medical conditions about which he testified – testimony the trial court credited – support the court’s decision to deviate from the formula.

Although the court emphasized those conditions’ affects on father’s ability to earn money, it also noted that those expenses burdened father’s ability to support himself. The court stated that defendant was "able to earn income which is barely sufficient to pay for part of his living expenses as well as his extensive medications."

Father’s heavy medical expenses, in light of his modest income, put the trial court’s decision to depart from the child support formula, and enter an award of zero, within the range of principled outcomes.4 See Borowsky, supra at 672.
We cannot find an abuse of discretion in light of the existing record.
Affirmed.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
(…continued)
474; 326 NW2d 406 (1982) (internal quotation marks and citation omitted).
3 The dissent claims that "[t]he medical expenses referred to are already taken into account by
the formula . . . ." The dissent provides no citation for this statement, and it is unclear to us
where the formula takes into account these expenses. See 2004 MCSF § 2.01 et seq. In fact, the
standards for deviating from the formula specifically contemplate taking into account whether
"[o]ne or both parents have incurred, or are likely to incur, extraordinary medical expenses either
for themselves or a dependent." 2004 MCSF 1.04(D)(5)(h).
4 We note that, while the court may also take into consideration the best interests of the child,
this standard is not a stand-alone criterion. This consideration is to be examined in light of other
considerations; here, the trial court considered father’s numerous health problems and large
medical costs. See 2004 MCSF 1.04(D)(5).

-end
Presented here by
Terry Bankert
attorneybankert@yahoo.com
http://attorneybankert.com/