The Michigan Court of Appeals is publishing Berger v. Berger (Case No. 279025; January 31, 2008). The court addressed a number of legal issues surrounding divorces with children:
10-day residency requirement of MCL 552.9(1)
We do not agree with defendant’s argument that MCL 552.9(1) requires plaintiff’s continuing physical presence in Jackson County for the 10 days immediately preceding filing for divorce. The statute’s plain language requires only that plaintiff have established her residence for the “10 days immediately preceding the filing of the complaint.” Once plaintiff established and intended for Jackson County to be her residence on December 16, 2005, her temporary absence did not destroy it.
Michigan’s Child Custody Act
In sum, on the basis of the trial court’s credibility determinations, the evidence does not clearly preponderate against the court’s finding that an established custodial environment existed
in plaintiff, not defendant. Fletcher, supra at 879; Sinicropi, supra at 155. Therefore the trial court’s finding is not against the great weight of the evidence and must be affirmed. MCL
722.28; Fletcher, supra at 879. It follows that defendant had the burden of proving by clear and convincing evidence that a change of custody would to be in the children’s best interest. MCL
722.27(1)(c); Mason, supra at 195.
In summary, the trial court’s determination that an established custodial environment existed with plaintiff and its findings regarding the “best interests of the child” factors under
MCL 722.23 were not against the great weight of the evidence, nor did the trial court commit clear legal error on a major issue. MCL 722.28. Further, the court’s ultimate discretionary
custody decision was not a palpable abuse of discretion. Shulick, supra at 325.
We find that both parties erroneously focus on sheer quantity of parenting time awarded to defendant. Rather, the best interests of the children govern this and all other custody issues.
MCL 722.27a(1); Borowsky, supra; Mason, supra at 194. Here, the trial court determined that mid-week parenting time was disruptive to the children, so it substituted other parenting time.
The court’s finding was not against the great weight of the evidence, nor did the court commit clear legal error. Rather, the trial court’s ruling fostered the best interests of the children. The
court’s modification of its earlier parenting time schedule is not a basis for finding a palpable abuse of discretion; therefore, this Court must affirm the trial court’s order. MCL 722.28;
Borowsky, supra at 688.
Equitable distribution of property
Additionally, the tenor of the trial court’s comments suggests its divergent property division was intended to punish defendant for his affair with Johnson, which the court found particularly egregious. In dividing the marital estate, “a judge’s role is to achieve equity, not to ‘punish’ one of the parties.” Sands, supra at 37-38. Here, the record indicates the trial court was more intent on imposing punishment than in equitably apportioning the marital property. For these reasons, this Court is left with the firm conviction that the trial court’s dispositional ruling
dividing the marital property with plaintiff receiving 70 percent and defendant receiving 30 percent was inequitable. Consequently, we remand to the trial court for the purpose of achieving a division of property that is fair and equitable.
Imputation of income under Michigan Child Support Formula
These factors generally ensure that adequate fact-finding supports the conclusion that the parent to whom income is imputed has an actual ability and likelihood of earning the imputed
income. Ghidotti, supra at 198-199; Stallworth, supra at 285. Here, however, it is undisputed that plaintiff possessed the actual ability to earn the amount of income defendant argues the trial court should have imputed to her. The presence of children in the home of the party is a factor under the child support formula, but is directed to “its impact on the earnings.” 2004 MCSF 2.10(E)(4). In that regard, the trial court in awarding custody to plaintiff determined “that even during the limited time frame when the Plaintiff-mother was working full-time, she was still able to use a flexible schedule that maximized her quality time with the children.” Finally, 2004 MCSF 2.10(F) provides: “Imputation must be applied equally to payers and payees, and to men
and women.” (Emphasis added.) For these reasons, we conclude the trial court abused its discretion in failing to impute income to plaintiff in an amount more truly representing her
earning capacity for the purpose of calculating defendant’s child support obligation.
Because the trial court’s award of spousal support was limited to one year and aimed at assisting plaintiff’s transition to becoming a full-time working mother, we conclude the award
was just and reasonable under the circumstances of the case. Moore, supra at 654. Consequently, the trial court did not abuse its discretion.