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STATE OF MICHIGAN
COURT OF APPEALS


KATHLEEN MANN, Plaintiff-Appellant, v BRIAN PISCHKE, Defendant-Appellee.

UNPUBLISHED March 6, 2007

No. 265561 Wayne Circuit Court LC No. 01-112515-DM

Before: Borrello, P.J., and Jansen and Cooper, JJ. PER CURIAM. Plaintiff appeals by leave granted from an order of the trial court applying the shared economic responsibility formula (SERF) and decreasing the amount of child support defendant was required to pay. We reverse and remand for proceedings consistent with this opinion. This appeal has been decided without oral argument pursuant to MCR 7.214(E). A judgment of divorce was entered on January 23, 2002, terminating the parties' marriage. Although plaintiff was awarded sole legal custody of the parties' two minor children, she and defendant shared physical custody of the children; the judgment of divorce provided for 154 days per year of overnight visitation for defendant. Under the terms of the divorce judgment, defendant was to pay support in the amount of $275 per week. Defendant moved for a reduction in child support in May 2003. On December 11, 2003, the Friend of the Court recommended that his support obligations be reduced using the SERF. At a motion on the hearing on December 18, 2003, the hearing referee declined to follow the recommendation, stating: under the child support guidelines I can't use the shared economic [formula] unless it was used at the time of judgment. Or if there is a change in parenting time that takes place that brings it into play [because] the request for a reduction is made concurrently. Plaintiff then filed a motion for an increase in child support in February 2004. Defendant filed a second motion to decrease child support in August 2004, relying on the Friend of the Court recommendation that the SERF be applied. At a hearing on May 12, 2005, plaintiff's counsel argued that because the judgment of divorce was a consent judgment, defendant's motion was "like wanting two bites at the apple." Defendant had agreed to "a comprehensive -1-


settlement which involved extensive parenting time as well as what the child support obligation should be." Plaintiff's counsel argued that for defendant to argue he should pay less support was "disingenuous and contrary to what the intents of the judgment were." The same referee again rejected defendant's motion to decrease support by applying the SERF, noting that it should not apply because it didn't apply in the judgment of divorce, and that's where you need the change of circumstances to apply that, you need the change in parenting time. The matter proceeded to the trial court, and after a hearing on the cross-motions, the trial judge hand-wrote the following on the order/judgment: Ct is satisfied that support should be based upon guidelines recognizing 149 nights = shared economic formula. The Calley1 case indicates that support can be modify [sic] w/o a change in circumstances if proper cause and in Cts discretion. Court will adopt recommendation. The court relied on Calley for a change of circumstances sufficient to apply the SERF and consequently reduce defendant's child support obligation pursuant to the Friend of the Court recommendation. On appeal, plaintiff argues that the trial court erred in applying the SERF because there was no modification of custody or parenting time. Defendant argues there was a change of circumstances that warranted the modification of support and application of the SERF. Defendant relies on this Court's statement, in the Calley case to which the trial court referred, that "any substantial change in the amount of support recommended by a new friend of the court report over the report prepared when a judgment of divorce is entered may constitute a `change in circumstances' that would justify the modification of a support order." Calley, supra at 383. The issue before us is whether the SERF was properly applied here. This Court reviews a modification in child support for an abuse of discretion. Paulson v Paulson, 254 Mich App 568, 571, 657 NW2d 559 (2002). However, as noted, this case involves more than a simple modification in child support. Because the issue in this case is whether the SERF was legally applicable, we must review the question of law de novo. Burba v Burba (After Remand), 461 Mich 637, 647; 610 NW2d 873 (2000). The judgment of divorce included provisions for child support, child custody and parenting time, and property division and tax deductions for the children. The parenting time called for well over the minimum of 128 overnights required to qualify for the SERF. 2004 Michigan Child Support Formal Manual (MCSF),

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