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STATE OF MICHIGAN COURT OF APPEALS

EDWIN R. CLARKE, III, Plaintiff-Appellant, v CYNTHIA A. CLARKE a/k/a CYNTHIA A. TERRILL, Defendant-Appellee.

FOR PUBLICATION June 26, 2012 9:10 a.m. No. 303580 Washtenaw Circuit Court LC No. 06-001428-DM

Before: MARKEY, P.J., and MURRAY and SHAPIRO, JJ. MURRAY, J. Plaintiff appeals by leave granted a child support order imputing income to him and awarding child support to defendant. We affirm in part, reverse in part, and remand for further proceedings. I. BACKGROUND Plaintiff and defendant married in 1992 and had one son, Edwin R. Clarke, IV, who was born in 1994. A consent judgment of divorce was entered on June 29, 2007, which adopted the terms of the parties' settlement agreement. According to the judgment, plaintiff and defendant were to share joint physical and legal custody of Edwin. No child support was awarded to either parent, but the judgment stated that child support may be awarded in the future if: (a) [there is] a substantial court-ordered departure from equal parent time or (b) a catastrophic change in income, where "catastrophic change in income" means that a party becomes physically or mentally disabled and is, therefore, unable to work, or a party is unemployed and is unable to find comparable employment following 120 days of his or her best efforts to do so. If child support becomes payable due to a loss of employment, the Court will have the discretion to make child support retroactive from the date of the petition for child support to the date that there was a change of income due to loss of employment. Plaintiff lost his job on October 15, 2007, and on April 14, 2008, he moved for a change of physical custody and for the payment of child support. The trial court denied plaintiff's motion for a change in physical custody. But, the trial court also found a catastrophic change in income and ordered defendant to pay plaintiff $485 per month in child support. Defendant -1-

disputed the child support award, and it was ultimately modified to $300 per month in November 2008. In January 2010, plaintiff and Edwin had a disagreement. Afterwards, plaintiff asked defendant if Edwin could return to her home earlier than provided for in the parenting time schedule. Defendant agreed and Edwin has been exclusively residing with defendant ever since. On June 15, 2010, defendant, in propria persona, petitioned for a change in child support. Defendant requested that the child support payment to plaintiff cease and that plaintiff be required to pay defendant child support. Also during 2010, plaintiff, who was 64 years old, looked into the possibility of receiving social security retirement benefits. According to plaintiff's calculations, if he began receiving social security retirement benefits in 2010, he would have been entitled to $1,968 per month; however, if he waited until November 2012, when he turns 66 years old, he would be entitled to $2,347 per month. Plaintiff also became aware that if he began receiving retirement benefits in 2010, Edwin would be entitled to receive dependent benefits of $1,173 each month until either his eighteen birthday or he graduates from high school. Upon learning about this dependent benefit, plaintiff contacted defendant through a series of emails. In the emails, plaintiff attempted to negotiate an agreement with defendant to share in Edwin's dependent benefit. Specifically, plaintiff wanted defendant to confirm him as the representative recipient of Edwin's benefits and to agree to an allocation of benefits between the two households. Initially, plaintiff suggested defendant receive $200 a month from Edwin's entitlement, which he later increased his offer to $400, and then to half, or $586.50. In July 2010, plaintiff applied for and began receiving social security retirement benefits. Despite plaintiff's belief that the Social Security Administration (SSA) would hold the dependent benefit payment until he and defendant had reached an agreement, defendant began receiving Edwin's dependent benefit in July 2010. Social security benefits were received by plaintiff and Edwin from July 2010 through September 2010. When plaintiff discovered in September 2010 that Edwin's dependent benefit was being paid to defendant, he withdrew his social security application and repaid to the SSA all the monies received by himself and Edwin. Subsequently, in December 2010, the friend of the court issued a child support recommendation that defendant's obligation to pay child support to plaintiff be terminated and that plaintiff's eligibility for social security retirement benefits be imputed as income in calculating child support. By imputing the social security retirement benefit to plaintiff, the friend of the court recommended that plaintiff pay defendant $593.50 per month in child support. Plaintiff objected to the friend of the court recommendation arguing that only distributed income from the SSA could be used in the calculation of income. Defendant urged the trial court to follow the friend of the court recommendation by imputing the retirement benefits as income to plaintiff. Based on the parties' written submissions, the trial court determined that it had the authority to impute plaintiff's social security benefits as income because it was income that he had the ability to earn but had voluntary eliminated. The court ordered plaintiff to pay $578 per month in child support and discontinued defendant's child support obligation, with the child support adjustment effective retroactively to June 15, 2010. The order also granted defendant the -2-

federal dependency tax exemption for the 2010 tax year because Edwin had not spent a single night with plaintiff since their fight in January 2010. After the trial court denied plaintiff's motion for reconsideration, plaintiff filed an application for leave to appeal, which we subsequently granted. Clarke v Clarke, unpublished order of the Court of Appeals, entered June 17, 2011 (Docket No. 303580). II. ANALYSIS A. IMPUTATION OF UNDISTRIBUTED SOCIAL SECURITY RETIREMENT BENEFITS Plaintiff argues that under

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Michigan Law