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THE 2017 CHILD SUPPORT FORMULA: WHAT YOU SHOULD KNOW

by Ken Randall, Midland County and

Ron Foon, Oakland County

Federal regulations require each state to review their child support formula once every four years. (45 C.F.R. Section 302.56.) Following that require-ment, Michigan’s Quadrennial Child Support Formu-

la Review Committee met in the summer of 2015. The Committee consisted of a wide range of interested groups including representatives from the referees association (RAM), family law attorneys, judges, friends of the court (FOCA), prosecuting attorneys (PAAM), MiCSES, SCAO and OCS. RAM was officially represented by Ron Foon and Amanda Kole. Also on the Committee was Ken Randall, a referee and Director of the Midland County Friend of the Court, and Kent Weichmann, the Wayne County Friend of the Court and an honorary life-time RAM member. After reviewing the comments and complaints from the public, the Committee came up with a draft of recommended changes. In the late fall of 2015, these recommended changes were approved by the Michigan Supreme Court through the State Court Administrator. On December 2, 2016, the State (permissively early) programmed the changes in release 9.3, an up-date to both the MiChildSupport Calculator and the Public Calculator. On Jan-uary 1, 2017, a revised version of the Michigan Child Support Formula went into effect incorporating the recommended changes. This article will focus on the changes that you should be most aware of from a referee’s perspective.

HEALTH CARE Many changes have been made under the topic of health care. For ex-

ample, be aware that the reasonable cost of health insurance will rise from 5% to 6%. Also in some instances the 2017 formula allows for the deduction of

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INSIDE THIS ISSUE OF REFEREES QUARTERLY:

2017 CHILD SUPPORT FORMULA 1

LEGISLATIVE UPDATE 7

JUVENILE CASE 9 LAW UPDATE

DOMESTIC RELATIONS CASE LAW UPDATE 5

UPCOMINGEVENTS 11

Volume XIX, Issue 1 Winter 2017

www.referees-association.org Editor-in-Chief: Lorie Savin Editorial Staff: Kenneth Randall Shelley R. Spivack Designer: Jim Rink President: Amanda Kole

PRESIDENT’SCORNER 10

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a spouse’s health insurance payment for a child. In such a case, you would calculate as if the parent (not the spouse) was paying the expense. See section 3.05(C)(1)(c). Some counties were already doing this prior to the Formula change.

Because the Affordable Health Care Act removed an individual’s discretion whether to maintain health insurance coverage, a parent may deduct the net actual cost of providing mandatory health care coverage for him/herself. (This may be an ephemeral issue if the Affordable Health Care Act is repealed, as is anticipated.)

The new formula establishes a $100/year per child minimum threshold for FOC enforcement action of health expenses, or a lower amount as set by the court. If the expenses do not exceed the threshold before the end of the year, that year’s expenses may still be submitted before the statutory deadline for submission. See section 3.04(D)(1) and(2), also MCL 552.511a(1)(b). This new section is intended to stop multiple nickel and dime hearings from taking too much time away from the court. In other words, it is better to conduct one $100 hearing than five $20 hearings.

There were a few semantic changes as well. For example, the term “extraordinary” medical expense was modified to “additional.” See section 3.04(B)(4)(b)(iii). This change was deemed necessary because there were rulings that confused the term “extraordinary.” For example, some rulings found that braces were not “extraordinary” because they are so common – though the intent was that “extraordinary” meant beyond the prevailing ordinary medical amount, previously $357/year per child, not that a cost was uncommon.

In rare instances, at a court’s discretion, a support order may eliminate ordinary/“additional” medical payments and thereafter treat all qualifying medical expenses with the stated shared medical percentage. See section 3.04(B)(3). Some counties allow this on stipulation of the parties in equal parenting time cases where there is no public assistance. The intent of this change, however, was to fix a different problem: when the pay-er parent is usually the one who provides and pays for the health expenses and the other parent who would typically receive the ordinary medical payment amount ($357+/year) is unjustly enriched because s/he rarely or never pays for a child’s medical services.

Do not routinely order both parents to provide health insurance for their minor children. See section 3.05(B). If both parents are checked to provide health insurance in a UCSO, MiCSES will force the issue, and possibly enforce sanctions if not followed through.

Finally, be aware that ordinary/“additional” medical expense increases from $357 to $403 per year for one child with a commensurate increase for subsequent children.

INCOME The new formula contains several changes and clarifications regarding the issue of income. For exam-ple, many military cases scored too high under the 2013 Formula. Starting in 2017, when a service member’s pay includes a housing allowance (BAH), and s/he maintains a second home where s/he is not  

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stationed, that individual’s housing pay (BAH) should not be included as income. See section 2.01(C)(a). Some additional government program benefits may now be deducted. See section 2.01(K). We have long understood how to calculate Social Security Disability; adding the child’s amount to the payer-parent’s income, calculate child support, and then subtract the child’s SSD share from the recommended formula amount. Now VA and Railroad Retirement benefits will be calculated the same way when a child receives benefits under those programs. See section 3.07(A). Some union dues remain deductible notwithstanding Michigan’s Right to Work Law. For example, dues paid in other states that do not have a Right to Work law, and dues in Michigan that are mandatory to get and stay employed, such as plumbers dues. See section 2.07(C).

There was much discussion about perks as income. A new section 2.01(D)(2) was added to state that perks “…do not include money paid by an employer for benefits like tuition reimbursement, educational cost reimbursement, uniforms, and health savings account (HAS) contributions.” One perceived change in the 2017 formula, which is actually not a legal change at all, is the provision stating you cannot carte blanche impute income in child support calculations. For example, a policy that au-tomatically imputes minimum wage at 40 hours/week is not allowed. See Ghidotti v Barber, 459 Mich 189 (1998). You must instead determine the potential income of a parent. See section 2.01(G)(2)(f) and (l). New factors to consider include a criminal record of a parent, and whether a parent has a driver’s license. The section on self-employed business owners was reworded to clarify that some business deductions are added back into a parent’s income. For example, add rent paid by a business to a parent as income. Also, add real estate depreciation back into income. See section 2.01(E)(4)(e). Retirement contributions that one can control are now considered income. There is no longer a 5.5% grace amount as a deduction. However, if one is required to contribute (has no control) into a retirement ac-count, that amount can be deducted. See section 2.07(C). In extremely high income cases, the court should exercise discretion when a family’s income greatly exceeds the highest level in the General Care Support Table (in the supplement). Consequently, in the rare cases where all of a child’s needs are met, the court can level off the child support amount. See section 3.02(E). This section is intended to be used rarely, but may be applicable when a payer-parent has a multi-million dollar income, such as NFL and NBA players, or music recording stars.

MISCELLANEOUS    

  The bulk of the changes in the new formula pertain to determining income and health expenses.

There are, however, a few other noteworthy changes. For example, a new deviation factor was added that states low orders ($15 or less) can be set at zero dollars because the administrative cost is outweighed by

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the benefit of maintaining the order. See section 1.04(E)(20). [In a November 15, 2016 webinar, it was incorrectly stated that the Friends could add on their administrative cost in addition to the $15.] The new formula offers guidance on how to factor in child care reductions in UCSOs. Some coun-ties had been taking the time to reduce the amount in UCSOs and others have not. Now, “unless otherwise stated in the order, the total child care reduces by the child’s pro rata share upon that date” [August 31st fol-lowing a child’s 12th birthday]. See section 3.06(D). Finally, the “sum of the squares cubed” has been replaced by the “sum of 2.5 cubed.” The effect of this is to bring a reduction in support sooner and more gradually to parents who exercise greater than aver-age parenting time. See section 3.03(A).

CHANGE People are naturally resistant to change, especially when there are so many changes taking place around us. Though there are many changes in the 2017 MCSF, everyone on the Committee, including the referees , agreed that the changes are an improvement over the 2013 version of the formula. Understand-ably, there is no perfect child support formula. If you see a glitch or omission, please feel free to share with RAM your comments of further improvements to the formula. In 2019, the next Quadrennial Child Support Formula Review Committee will convene and review what has been said.

Nancy Parshall, Art Spears, Kate Weaver, Michelle Letourneau, and Lynn Perry at the RAM Holiday Lunch Photo by Ken Randall

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DOMESTIC RELATIONS CASE LAW UPDATECases can be accessed by docket number at the Court’s website at

http://courts.mi.gov/opinions_orders/opinions_orders/pages/default.aspx

By Ed Messing, St. Clair County

The applicability of the Hague Convention on the Civil Aspects of In-ternational Child Abduction was addressed in Pliego v Hayes 86 F Supp3rd 678 (2016) #13-5895 (6th Cir 12/5/16). Petitioner is a Spanish diplomat assigned to the Spanish embassy in Ankara, Turkey, while Re-spondent is a U.S. citizen. The parties married in 2009, had a child in 2011, and moved to Turkey in 2012. The court granted Petitioner’s first petition for the child’s return to Turkey, the child’s country of habitual resi-dence, and the respondent failed to present clear and convincing evi-

dence that Petitioner had abused the child and that there was not a grave risk that the child’s return would place the child in an intolerable situation. Petitioner filed his second petition after Respondent again removed the child to the United States. This time Respondent argued that the child would be placed in an intolerable situation if returned to Turkey as the father’s diplomatic status would practically prevent the Turkish court from adjudicating custody, and therefore the child should not be returned. The court held that while the inability to adjudicate custody would place the child in an intolerable situation, the Spanish Embassy had waived Petitioner’s diplomatic immunity with regard to a custody proceeding in Turkey, and therefore Petitioner was allowed to return to Turkey with the child. In Weaver v Giffels _Mich App_ #327844 11/10/16 the children were living primarily with Plaintiff, who was exercising parenting time four days a week, while Defendant was exercising parenting time three days a week. The UCSO provided that support would continue until either the child turned 18, or after the child no longer attended high school full-time while residing on a full-time basis with Plaintiff. Defendant moved to terminate support when the child turned 18 years old. Defendant argued that as the parties shared physical custody, the child does not live full-time with the recipient of support, Plaintiff, and therefore support must stop at age 18 under MCL 552.605b. The referee agreed with Defendant, but following Plaintiff’s objec-tion the trial court ordered the continuation of the support obligation. The Court of Appeals reversed the trial court. The Court noted that jurisdiction over custody and par-enting time ends when the child turns 18, so the custody, legal residence, and parenting time provisions are no longer relevant. The Court held that based on the clear language of the statute, an adult child must “re-side” only with the recipient of support while completing high school in order for support to continue. However, the child can be determined to “reside” full-time with the payee while spending some overnights with the payer of support. The court must use the factors outlined in Workman V DAIIE 404 Mich 477 (1979) and determine CONTINUED ON NEXT PAGE

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the child’s residence based on: 1) the subjective or declared intent of child’s household or domicile, 2) the formality or informality of the relationship between the adult child and members of household of the support recipient, 3) whether the child lives in same house, or within same curtilage or premises as the support recipi-ent, 4) and consideration of the existence of another place of lodging. In Bowling v McCarrick unpub Ct App # 331583 12/13/16, the parties shared joint legal custody of the two minor children, with each party having physical custody of one of the children. Defendant’s motion to change physical custody of the child who lived with Plaintiff was immediately referred by local administrative order to the FOC for a conciliation conference. When the parties were unable to reach agreement, the FOC determined that proper cause or a change in circumstances had been shown and recommended that Defen-dant’s motion be granted. After Plaintiff objected to the recommendation, the court took brief arguments, con-sidered the FOC report, and then entered an order changing custody. The Court of Appeals reversed. The Court did not address the propriety of conducting a conciliation conference in this situation, but determined that the trial court improperly considered the FOC report when determining that the threshold had been met to consider the custody motion. The statute allows a referral of a motion to change custody to the FOC for inves-tigation and recommendation only after the court finds proper cause or a change in circumstances to review custody, and the court’s consideration of the report from the conciliator to determine if the threshold was met violated the statute. The trial court in Exline v Silver unpub Ct App #327797 10/13/16 erred by declining to consider De-fendant’s prior rental profits and gain from the sale of his rental property when it reduced his child support obligation. The court was also required to consider whether payments by Defendant’s company for his cell phone bills, auto expenses, credit card bills, tickets and suites for all of the Detroit sports teams, his step-daughter’s tuition, as well as to his second wife and mother, should be included in his income for support pur-poses. The court did not err when declining to use Defendant’s three year average income, as testimony sup-ported his claim that his company’s bank required a limit on his income as a condition to continued financing of his company. Finally, the unpublished case of Hajji v Hajji unpub Ct App #328209 7/28/16 addressed the distinc-tion between imputation of unexercised earning potential, which requires the court to address the potential income factors, and determining the amount of undisclosed or undocumented income. In this case, the court was not required to address the potential income factors when faced with Defendant’s failure to provide ade-quate income documentation. The court determined Defendant’s actual income for the prior three years to the best of its ability rather than relying on Defendant’s unexercised ability to earn. Under the 2017 MCSF it will be important to clarify that the referee or the court is basing its determination of a party’s undocumented or undisclosed income to the best of its ability rather than imputing unexercised potential income whenever ap-propriate.

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LEGISLATIVE UPDATEContributed by Kate Weaver, Oakland County

The legislature typically wraps up their year around mid-December. Be-cause this was an even-numbered year the 2015-2016 legislative ses-sion came to an end on December 31, 2016. At the conclusion of the legislative session, all bills not signed into law do not carry over into the new year. Below is the summary of action prior to the end of 2016. Look for the introduction of bills in the new 2017-2018 legislative ses-sion.

ADOPTION

HB 4911: ADOPTION CODE AMENDMENT The bill amends the Michigan Adoption Code to require the court to receive an affidavit or verified writ-

ten declaration from the mother of a child born out of wedlock, as evidence of the identity and location of the child's father, when the mother sought to relinquish rights to the child or join in a petition for adoption filed by her spouse. Further, the bill allows a court, upon the motion of the petitioner, to waive the three-month waiting period to finalize the adoption of a child under one year of age, if a waiver were to be in the child's best inter-ests.

STATUS: This bill was signed into law on December 21, 2016 with immediate effect.

NEGLECT/JUVENILE

SB 1090/1091: AMEND JUVENILE CODE Senate Bill 1091 amends the juvenile code to require the family court to make certain determinations re-

garding an agency's efforts to finalize a permanency plan, in cases involving a child in foster care to whom parental rights had not been terminated; and require the court to determine whether an agency, foster home, or institutional placement had followed a reasonable and prudent parenting standard.

Senate Bill 1090 would amend the juvenile code to define "reasonable and prudent parenting standard" as "decisions characterized by careful and sensible parental decisions that maintain a child's health, safety, and best interest while encouraging the emotional and developmental growth of the child when determining whether to allow a child in foster care to participate in extracurricular, enrichment, cultural, and social activi-ties".

STATUS: These bills were signed by the Governor on January 5, 2017.

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DOMESTIC RELATIONS

HB 5520: ABOLISH DOWER RIGHTS This bill requires judgments of divorce and separate maintenance to satisfy a wife's claims in the proper-

ty of the husband, and to delete a requirement that those judgments include a provision in lieu of dower. (Practi-cal note: This law would not affect dower rights of real property held in another state.)

STATUS: This bill was signed into law on December 21, 2016 with immediate effect.

SB 597: QUALIFIED DISPOSITIONS IN TRUST ACT This bill creates the "Qualified Dispositions in Trust Act" to provide for the creation of irrevocable trusts

that would be subject to specific limitations. This law will affect property classification and division in divorce cases where property was placed in this type of trust.

STATUS: This bill was signed by the Governor on December 8, 2016 with immediate effect.

All of the above legislation can be accessed at: http://www.legislature.mi.gov/(S(gw41t0asyldke545yfbmwhra))/mileg.aspx?page=home

Michigan State Capitol Building, Lansing - Photo by Ken Randall

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JUVENILE CASE LAW UPDATEBy Jen Kitzmiller, Berrien County

Delinquency Restitution People v Turn, Mich App ; NW2d (2016) (Court of Ap-peals #327910, October 11, 2016) (leave to appeal pending) The defendant pled guilty to assault with the intent to commit murder. As part of the sentencing, the trial court ordered the defendant to pay restitution to the victim, including his loss of accumulated sick, personal and vacation time. The victim, who was stabbed several times in his back and side by the defendant, spent two and a half to three days in the hospital and was unable to immediately return to work following his release. It was undisputed that the victim used 112 hours of sick, personal and vacation time as he recuperated from his injuries. In using this time, the victim was paid by his employer at an after tax

rate of $19.23 per hour. The victim also testified that the time he used was no longer available, and his accumulated leave time was payable by his employer upon his termination of employment. The trial court found because the victim used this time as a result of the crime, it was not available for another purpose, or for compensation upon his termination, so it is a loss. In order to receive “full compensation” under the Crime Victim’s Rights Act, the victim should be compensated for his accumulated loss time. The defendant appealed this ruling. The Court held that the Crime Victim’s Rights Act requires a defendant of a crime to make “full restitution” to any victim. The Supreme Court has defined full restitution to mean “restitution that is complete and maximal”. The Court found that accumulated sick, personal and vacation time falls within the definition “income loss” even though the victim was paid by his employer for the time he used. The victim earned his accumulated sick, personal and vacation time by working, and he is entitled to receive monetary compensation for any unused time. Because he used 112 hours, he lost the ability to use, and be paid for, that time in the future and lost the ability to be paid for that time upon termination of his employment. The trial court’s order of restitution is affirmed.

Neglect Termination at initial disposition/adjudication In re Thompson, Mich App ; NW2d (2016) (Court of appeals #333294, December 15, 2016) The mother appeals the trial court’s order terminating her parental rights to her child at the initial dispositional hearing. The child was removed from the mother and placed with DHHS immediately after birth as the trial court had recently terminated the mother’s rights to two of the child’s siblings. At the hearing, the trial court heard evidence and made its findings with regards to the statutory basis for termi-nation and found that termination was in the child’s best interests. As an afterthought, the trial judge took jurisdiction of the child after being requested to do so by the petitioner’s attorney. Because the trial court did not adjudicate the mother BEFORE proceeding to disposition, the Court held that there was a fatal flaw. A dispositional hearing could be conducted immediately following the adjudicative hearing, “but the two could not be converged such that there was no distinction.” Because the trial judge reached the termination de-cision before considering whether jurisdiction was appropriate, the Court vacated the trial court’s order and remanded for further proceedings.

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President’s Corner

Sahera Housey, Oakland County

I want to take this opportunity to introduce the RAM Board and other RAM members who give of their time and energy representing RAM.

This is in no way an all-inclusive list. Many other current and former RAM members have served on various committees and workgroups since RAM was established. Thank you to past and present members who have volunteered.

Current Board Members

Sahera Housey, President, (Oakland County) serves as liaison to the SBM Family Law Section and serves on the SCAO Parenting Coordi-nation Workgroup. I am also Co-chair of the Conference Committee.

Kristi Drake, Vice-President, (Lenawee County) serves on the MJI Domestic Relations Quick Reference Materials Editorial Advisory

Committee. This committee is reviewing and updating the Domestic Relations Quick Reference Materials.

Michelle Letourneau (Wayne County) is Co-chair of the Membership Committee and serves on the MJI Do-mestic Relations Quick Reference Materials Editorial Advisory Committee Forms Workgroup.

Janet Mendez (Ingham County) is our newest board member.

Susan Murphy (Jackson County) writes our Member Voir Dire column for the Referees Quarterly which spot-lights a RAM member for our publication.

Nancy Parshall, Secretary, (Midland County), keeps our meetings’ minutes to make sure we follow the rules of order.

Amanda Kole, Treasurer and Immediate Past President, (Macomb County) is Chair of the Finance Commit-tee. Amanda served on the Quadrennial Child Support Formula Review Committee.

Lynn Perry (Kent County) is the liaison to the State Bar of Michigan Children’s Law Section.

Lorie Savin (Oakland County) is the Co-chair of Communications Committee which maintains the RAM web-site and listserv and publishes the Referees Quarterly. Lorie is also the Editor-in-Chief of the Referees Quar-terly. Lorie serves as RAM’s representative on the SBM Judicial Ethics Committee.

Arthur Spears (Oakland County) is on the Judicial Resources Committee, SCAO Training Workgroup and awaiting his appointment to the SBM Civil Discovery Rule Review Committee.

Kate Weaver (Oakland County) writes the Legislative Update column for the Referees Quarterly. Kate serves on the ROPA Forms Committee, MJI Domestic Relations Quick Reference Materials Editorial Advisory Com-mittee Forms Workgroup, and, of course, the RAM Conference Committee.

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Nicholas Wood (Isabella County) is Co-chair of the Membership Committee and has the monumental task of conducting the RAM salary survey.  

Former or Non-Board Board Members  

Eric Blubaugh (Chippewa County) recently served on the SCAO Juvenile Restraints Proposal Workgroup.

Ronald Foon (Oakland County) serves as Co-chair of the Law and Court Rules Committee and has served on the Quadrennial Child Support Formula Review Committee for at least the last three revisions (12 years).

Michael Krellwitz (Genesee County) recently served on the SCAO Juvenile Restraints Proposal Workgroup.

Kenneth Randall (Midland County) is Co-chair of the RAM Communications Committee, serves on the edito-rial staff of the Referees Quarterly, and is our resident photographer. Ken has also served on the Quadrennial Child Support Formula Review Committee for at least the last three revisions (12 years).

Shelley Spivack (Genesee County) is Co-chair of the Law and Court Rules Committee and serves on the editorial staff of the Referees Quarterly. She serves on the Michigan Supreme Court Forms Committee’s Do-mestic Relations Workgroup, the SCAO Child Welfare Services Dependency Workgroup, and is an assistant editor of the Michigan Family Law Journal.

My hope is that in reading this article, you become inspired to participate and take an active role in the orga-nization that serves you. I am always humbled and thankful for the vast wealth of knowledge and experience you all have. Please share your talents and time. You can contact me at houseys@oakgov.com to get more involved.Sincerely,  

Sahera

UPCOMING EVENTS

• RAM Board Meeting, State Bar of MichiganThursday, February 2, 2017

• RAM Board Meeting, State Bar of MichiganThursday, April 13, 2017

• RAM Annual Training ConferenceMay 24-26, 2017, Park Place Hotel,Traverse City

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2016-2018 BOARD OF DIRECTORS AND COMMITTEES

Officers:PresidentSahera HouseyOakland County houseys@oakgov.com

Vice President Kristi Drake Lenawee County kristi.drake@lenawee.mi.us Secretary Nancy Parshall Midland County nparshall@co.midland.mi.us Treasurer Amanda Kole Macomb County amanda.kole@macombgov.org Immediate Past President Amanda Kole Macomb County amanda.kole@macombgov.org

Board Members:

Lynn Perry Kent County lynn.perry@kentcountymi.gov Susan Murphy Jackson County smurphy@co.jackson.mi.usLorie Savin Oakland County savinl@oakgov.com Art Spears Oakland County spearsa@oakgov.com Kate Weaver Oakland County weaverc@oakgov.com Nicholas Wood Isabella County nwood@isabellacounty.org Janet Mendez Ingham County jmendez@ingham.org

Committee Chairs: Communications: Ken Randall & Lorie Savin Conference: Sahera Housey Finance: Kristi Drake & Susan Murphy Law & Court Rules: Ron Foon & Shelley Spivack Membership: Michelle Letourneau & Nicholas Wood Liaisons:

State Bar of Michigan: Candace Crowley SBM, Children’s Law Section: Deborah McNabb SCAO, Friend of the Court Bureau: Paul Gehm SCAO, Child Welfare Services: Noah Bradow

www.referees-association.org

Since 1984 “Compassionate justice

helping children”

MISSION STATEMENT Founded in 1984, the Referees Association of Michi-gan (RAM) is a special purpose bar organi-zation rec-ognized by the State Bar of Michigan that consists of attorneys who serve as juvenile and domestic rela-tions referees throughout the State. RAM’s primary focus is to educate its members through an annual training conference, its publication, Referees Quarter-ly, and a listserv. RAM’s mission is also to contribute to the improvement of the legal system by appointing members to serve on numerous State Bar and State Court Administrative Office committees, and by offer-ing comments to proposed legisla-tion and court rules.