The Michigan Court of Appeals ["COA"] affirmed the trial court's ruling refusing to lower payor Mark Foster's child support to an amount consistent with the Michigan Child Support Formula ["MCSF"] yesterday. In this case, at the time the judgment of divorce was entered, the parties placed on the record their agreement that the support would exceed the MCSF by $450/month a factor of their negotiated property settlement. The judgment also clearly stated their agreement.
At a hearing on the motion to reduce the support amount, Cheryl Noffsinger said that the total support award had been negotiated between the parties. The trial court then ordered that the “child support should be changed at this time to an amount that’s set forth in the current recommendation plus $450 that was agreed to between the parties at the time of the” divorce.
The parties’ consent judgment included this provision, entitled “Child Support”:
The COA held that because a divorce judgment “entered upon the settlement of the parties . . . represents a contract, which, if unambiguous, is to be interpreted as a question of law,” citing In re Lobaina Estate, 267 Mich App 415, 417-418 (2005).
The COA stated that even Foster characterized the $450 additional child support as part of a “property settlement” and noted that this mirrored the representations made at the pro confesso hearing held at the time of divorce. He argued, though, that the settlement was inequitable in light of the duration of the marriage and the financial status of the parties and should be set aside.
The COA has previously, however, clarified that a provision for child support in excess of the guidelines must be enforced whether it is labeled a property settlement or child support if the provision is "contractual, freely negotiated, and unambiguous.” See Holmes v Holmes, 281 Mich App 575, 598 (2008), The Holmes Court stated that “merely because a circuit court possesses the power to modify a child support award, it may not simply ignore an unambiguous contractual provision regarding child support.” Id. See also MCL 552.605(3).
Foster then argued that neither party had clearly understood what he or she was agreeing to in the JOD and aksed the trial court to set aside the excess amount under caselaw that permits modification of property settlements if they are negotiated or agreed upon where the court finds fraud, duress, or mutual mistake. Since the record in the trial court established clearly the parties' understandings about the nature and amount of the excess payment, the COA rejected this argument and affirmed the JOD's support provision, stating that the record clearly showed not only the parties' agreement but also the basis for their agreement.
The portion of the opinion dealing with the continuing obligation is interesting--$450/month so long as one of the children is18 or graduates from high school, whichever is later, but no longer than the age of 19½.