Opinion
Docket No. 27834.
Decided March 3, 1977.
Appeal from Oakland, Farrell E. Roberts, J. Submitted December 13, 1976, at Lansing. (Docket No. 27834.) Decided March 3, 1977.
Complaint by Margaret McCarthy against Jack D. McCarthy for divorce. Judgment for plaintiff with an award for child support. Plaintiff moved for modification of the support order. Modification granted. Defendant appeals from the modification order. Reversed and remanded.
Keidan, Keidan, Gornbein Kaplan (by Herschel P. Fink), for plaintiff.
McCauley MacLeod, for defendant.
Before: J.H. GILLIS, P.J., and M.F. CAVANAGH and D.E. HOLBROOK, JR., JJ.
OPINION OF THE COURT
For what is generally thought of as a routine procedure, this case presents us with a complicated fact situation due to the procedural irregularities which resulted in substantive errors.
Plaintiff and defendant were divorced by a judgment entered on August 11, 1970, by the Oakland County Circuit Court. The judgment provided that defendant pay $50 per week child support for the minor child of the parties (who was then two years old) until the child attained the age of 18 or until the further order of the court.
On April 12, 1974, plaintiff filed a motion for modification of the judgment to increase the child support payments. In July of 1974 a hearing was held regarding said motion, and as a result the trial judge ordered a temporary increase of $5 per week retroactive to May 1, 1974. We have no record of that hearing. On November 25, 1974, plaintiff filed another motion requesting a permanent support modification. The hearing on this motion was scheduled for February 20, 1975. Rather than conduct the hearing, the trial judge held an unrecorded conference in his chambers. The attorneys for the parties were present, but they are in dispute as to what was agreed upon during the meeting in chambers. An order was issued, however, by the trial judge modifying the judgment of divorce and requiring defendant to pay $75 per week for support of his child. Apparently, the trial court based its order upon the Friend of the Court recommendation.
Plaintiff insists that defendant agreed to the conditions of the order. The order reads "approved as to form" and we shall treat it as precisely that.
On March 17, 1975, defendant filed a motion to set aside the modification order and for a rehearing of plaintiff's motion for modification on the grounds that the court had failed to conduct a hearing prior to the entering of said order. On September 22, 1975, the trial judge entered an order referring defendant's motion of March 17, 1975, to the Friend of the Court for a hearing by a referee and requiring that the transcript of the hearing be filed with the court.
On November 3, 1975, a hearing was held before Friend of the Court Hearing Referee Donald Tews. At this hearing testimony was taken from Assistant Friend of the Court, John Dunlop; defendant, Jack D. McCarthy; defendant's father, George D. McCarthy; and plaintiff, Margaret McCarthy. Subsequently, Hearing Referee Tews filed his finding with the court and recommended that the court affirm its previous order modifying the child support payments.
On February 6, 1976, the trial court heard oral arguments relative to defendant's rehearing motion. Reference was made to the Friend of the Court transcript. No objection was made by either party. The trial judge then ruled that defendant's rehearing motion was denied and that the original modification order was to remain in effect. Defendant appeals as of right.
The law regarding divorce judgments and modifications thereof is well defined. Upon petition of either parent or the Friend of the Court a trial court can, in its discretion, modify child support provisions contained in a divorce decree. MCLA 552.17; MSA 25.97, Polley v Polley, 367 Mich. 455; 116 N.W.2d 924 (1962), Spalding v Spalding, 355 Mich. 382; 94 N.W.2d 810 (1959). The petitioning party has the burden of establishing a change in circumstances that would justify an alteration of the divorce judgment. Hentz v Hentz, 371 Mich. 335; 123 N.W.2d 757 (1963), Cymbal v Cymbal, 43 Mich. App. 566; 204 N.W.2d 235 (1972), Stros v Stros, 25 Mich. App. 154; 181 N.W.2d 26 (1970).
Review of the trial court is de novo; however, great weight is to be given to the trial judge's findings of fact. Krachun v Krachun, 355 Mich. 167; 93 N.W.2d 885 (1959), Haskins v Haskins, 11 Mich. App. 487; 161 N.W.2d 415 (1968). In order to aid the trial court in making its determination, the judge may refer the pending motion to the Friend of the Court for an investigation and recommendation. MCLA 552.253; MSA 25.173. The trial judge may consider the report in reaching his decision, but the report is inadmissible as evidence unless all of the parties agree otherwise. Krachun v Krachun, supra, Stros v Stros, supra, Haskins v Haskins, supra.
Although the law is clear, due to procedural irregularity, we are presently faced with questions to which the answers must be found between the legal guidelines.
There is no question that the trial court erred in its modification order of February 26, 1975, both procedurally and substantively. The order was made without a hearing and there was no agreement expressed or implied to allow the court to utilize solely the Friend of the Court's recommendation. Krachun v Krachun, supra, Stros v Stros, supra. Additionally, the recommendation was based totally upon the fact of defendant's increase in salary. All relevant factors are to be considered in determining whether there has been a sufficient change in circumstances. Cymbal v Cymbal, supra, Stros v Stros, supra. The isolated consideration of income is error. Cymbal v Cymbal, supra.
The question then becomes, did the subsequent Friend of the Court hearing cure the above error? Although given a different set of circumstances we may hold differently, in the present case we find that due to a combination of factors, the error was not cured.
It is unclear upon what factors the trial court based its decision to affirm the original order. Regardless of whether the judge relied upon the oral arguments of the parties, the hearing transcript, or the referee's recommendation, we find error.
There is no evidence of an agreement by the parties or a ruling by the judge allowing the Friend of the Court proceedings to be admitted into evidence. The trial judge merely stated without reason that the original order was to remain in effect. "It is impossible to review de novo when the basis of the court's finding was not received in evidence and is not on the record." Haskins v Haskins, supra, at 491.
Assuming arguendo that we treat the hearing transcript and referee's recommendation as evidence, we still find error. The transcript provides voluminous testimony regarding defendant's indebtedness, which was derived from various sources, his educational background and salary increases. Plaintiff testified as to her estimate of the cost of raising her child, that being between $6,000 and $7,000. We find no proof on the record to support this estimate. Additionally, there is no evidence as to what the circumstances were previously and how they have in fact changed. The record must reflect a change in circumstances, Stros v Stros, supra, and this change must be supported by proven evidence in order to warrant a modification order. Ewald v Ewald, 14 Mich. App. 665; 166 N.W.2d 49 (1968). Thus, the transcript does not demonstrate a change in circumstances.
The referee's recommendation reads as follows:
"The defendant continues to live in the upper middle class, and there would seem to be no reason why we should deny this to his son. The indebtedness of the defendant was voluntarily incurred, and although it may cause him concern, should not be a factor in reducing the amount he should pay. The order of February 26, 1975, was not excessive.
"RECOMMENDATION: That the court affirm the order of February 26, 1975, requiring the payment of $75.00 per week child support."
In view of the foregoing it is clear that the referee interpreted the question as being: Did the defendant demonstrate a change justifying a reduction of child support payments? This placed the burden upon the defendant. If this rehearing is to be considered as one correcting a previous error, then the burden must remain on plaintiff to demonstrate a change in circumstances so as to warrant an increase in payments. Therefore, if the trial judge relied upon the referee's recommendation in reaching his decision, he committed error, as the burden was thrust upon the wrong party at the hearing.
In conclusion, we hold that the in-chambers discussion with no record of a hearing resulted in reversible error. We further hold that the trial court's failure to conduct a hearing and its reliance upon a defective recommendation by the Friend of the Court was not cured by the subsequent proceedings where the trial judge did not place on the record the basis for his decision in compliance with GCR 1963, 517.1. The hearing transcript, if considered evidence, is unsupported, and the referee's recommendation put the burden of proof improperly upon defendant to show a change of circumstances.
For the foregoing reasons, we reverse the trial court and remand to the trial court for a hearing on plaintiff's motion. Due to a lapse of time, it will be necessary for plaintiff to establish a change of circumstances as of the present time. The trial court should determine whether another judge should hear this matter in light of the history of this case. We retain no jurisdiction.
Reversed. Costs to appellant.
D.E. HOLBROOK, JR., J., concurred.
I concur in the result reached by the majority opinion. However, I would rely on Bowler v Bowler, 351 Mich. 398; 88 N.W.2d 505 (1958), and the legislative intent of the Child Custody Act of 1970, MCLA 722.27; MSA 25.312(7), as authority for the proposition that where neither party specifically objects to the Friend of the Court report, it is admissible in evidence. It makes little sense to me to hold that the report, which is authorized by statute, is reviewed and considered by the trial court, and is often times the most significant factor in a trial judge's custody determination, cannot become a part of the record except by express stipulation of the parties.