Friend of the Court (FOC) recommendation for modification of child support; Fisher v. Fisher; MCL 552.17; Kosch v. Kosch; Burba v. Burba; Imputing income to a parent; Ghidotti v. Barber; Whether plaintiff essentially waived or forfeited her right to challenge the imputed income; People v. Carines; Attorney fees; Reed v. Reed; MCR 3.206(C)(1) & (2); Enforcing an unambiguous contract provision; Wilkie v. Auto-Owners Ins. Co.; Change of school districts as an important educational decision; Pierron v. Pierron; Factors for determining the reasonableness of an attorney fee award; Smith v. Khouri; Michigan Child Support Formula (MCSF)

The court affirmed as to the trial court’s adoption of the referee’s finding that plaintiff-mother violated the divorce judgment, vacated as to the amount of attorney fees awarded to defendant-father, reversed as to the trial court’s adoption of the FOC-recommended child support order, and remanded. Plaintiff argued that the only issues before the referee related to her motion to change the children’s school district and defendant’s motion as to plaintiff’s violation of the divorce judgment and thus, the referee erred by addressing the child support issue. However, the record showed that virtually all of the orders leading up to the “hearing indicated that the issue of child support modification (which was initially raised by plaintiff’s motion) was to be resolved at that hearing; further, at the hearing, counsel for both parties and the referee clearly expected that the issue of child support would be resolved.” Plaintiff’s counsel questioned defendant about his income and stated that his “income was ‘relevant to the support that he’s paying.’ Plaintiff’s counsel did not object when the referee, after the settlement agreement was placed on the record, moved to the taking of testimony” about child support. The court found no basis for concluding that the referee improperly considered the issue of child support. However, neither the FOC recommendation nor the trial court’s “de novo opinion addressed whether a change of circumstances existed” warranting a modification of support. Also, “while imputation of income to a person receiving means-tested benefits is a deviation from the MCSF, neither the recommendation nor the de novo opinion made any of the specific findings necessary for a deviation from the MCSF; rather, the referee apparently based his decision on his observations of plaintiff in a courtroom for several hours; during which time plaintiff testified that she received SSI benefits, had been deemed unable to work by a physician, and was then ‘in a lot of pain.’” In adopting the recommendation, “the trial court failed to follow the necessary procedures it was required to follow when imputing income to plaintiff, and failed to explain the resulting deviation from the MCSF in any way.” Remand was required as to the attorney fee award for consideration of the Smith factors.