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STATE OF MICHIGAN COURT OF APPEALS

ELIZABETH S. HOLMES, Plaintiff-Appellant, v RICHARD E. HOLMES, JR., Defendant-Appellee.

FOR PUBLICATION December 4, 2008 9:05 a.m. No. 276470 Kent Circuit Court LC No. 96-003184-DM Advance Sheets Version

Before: Bandstra, P.J., and Beckering and Gleicher, JJ. GLEICHER, J. In this dispute regarding child support, plaintiff appeals by delayed leave granted a circuit court order granting defendant's motion to modify his child support obligation. We reverse and remand. I. Facts and Proceedings The parties married in 1988 and consented to the entry of a divorce judgment on July 15, 1996. The parties, who are both attorneys, have two minor children. At that time of the divorce, plaintiff practiced in a small Grand Rapids law firm. She now serves as the president of her family's construction business and no longer practices law. Defendant is a partner in a large, statewide law firm. The parties' consent judgment of divorce incorporated a document entitled "Alimony, Custody, Child Support, Parenting Time, and Property Settlement Contract" (the contract). The contract provided for joint legal custody of the children, with plaintiff receiving physical custody. Defendant's parenting time consisted of 12 overnight visits a month, or approximately 164 days a year with other vacation times included. Paragraph 7 of the contract, entitled "Child Support," is the disputed portion at the center of this appeal. It provides: Husband shall pay child support in the amount of One Thousand, Two Hundred Sixty-three ($1,263.00) Dollars per month (see attached calculations), which includes his portion of the payment for the children's nanny. Further, Husband shall pay twenty-five percent (25%) of any net bonus he receives in any given year as additional child support. When the oldest child attains the age of 18 or completes high school, whichever event occurs last, this payment shall be reduced to fifteen percent (15%) of his net bonus, and shall terminate upon the -1-

youngest child's attaining the age of 18 or graduating from high school, whichever last occurs. [Emphasis supplied]. The parties agree that they calculated defendant's $1,263 monthly child support obligation by adding together the amount that would have been due under the standard child support guidelines in the Michigan Child Support Formula Manual (MCSFM) if plaintiff had been given sole custody ($1,697.81) and the amount calculated under the shared economic responsibility formula (SERF)1 ($828.25) and then dividing by two.2 When they negotiated the contract, the parties recognized that defendant's substantial parenting time would potentially entitle him to application of the SERF. They agreed on the compromise embodied in the contract to avoid a protracted courtroom battle regarding both parenting time and child support. Paragraph 8 of the contract, entitled "Additional Child Support Provision," addressed future child support modification: All child support shall be paid through Kent County Friend of the Court and shall be subject to all Friend of the Court regulations and supervisory fees. Husband waives the right to assert shared economic participation and agrees not to introduce the shared economic concept into the support calculation for the minor children for a ten-year period. Wife agrees that as long as Husband exercises the parenting time specified in this Agreement, the same shall be effected in the support calculation. Husband and Wife agree that support shall remain fixed for one year after the entry of the Judgment of Divorce, before it can be reviewed, and that support will be reviewed only in the event that either Husband or Wife is receiving greater compensation than at the time of the entry of the Judgment of Divorce. In no event shall child support be reduced, unless Husband is completely unemployed on a non-voluntary basis, or unless Wife's earnings increase. [Emphasis supplied.] In 1997, the parties filed competing motions to modify defendant's monthly child support payments. Plaintiff sought a significant increase, alleging that her income declined when her law firm closed its doors and she became self-employed. Defendant advocated application of the SERF, averring that because he had 14 parenting time days a month, the SERF was more equitable. Plaintiff countered that in the contract defendant had "agreed not to assert shared economic responsibility for a period of ten years."

1 2

This methodology appears in 2004 MCSF 3.05.

The "attached calculations" referred to in

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