                          STATE OF MICHIGAN

                            COURT OF APPEALS



RUDOLF MARCEL SMALING,                                               UNPUBLISHED
                                                                     December 4, 2014
               Plaintiff/Counter
               Plaintiff/Appellee/Cross-Appellant,

v                                                                    No. 314826
                                                                     Kalamazoo Circuit Court
                                                                     Family Division
LAURA CORDELIA SMALING,                                              LC No. 2011-005451-DM

               Plaintiff/Counter
               Plaintiff/Appellant/Cross-Appellee.


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff-husband and defendant-wife each appeal by right portions of the parties’
judgment of divorce. Defendant argues that the trial court erred by limiting the term of spousal
support, by failing to order plaintiff to pay the entirety of defendant’s attorney fees, and by
deviating from the child support formula guidelines regarding payment of their children’s
uninsured medical expenses. Plaintiff argues that the trial court erred by ordering him to pay
defendant a percentage of bonuses earned from his employer during the period of support. For
the reasons discussed below, we vacate the judgment of divorce with respect to the awards of
spousal support and child support, remand for further proceedings, and retain jurisdiction.

       The parties were married for 22 years and had four children who, at the time of trial,
ranged in age from eight to 15 years old. The parties were each 45 years old at the time the
divorce complaint was filed. At the time of trial, plaintiff was employed as a director of
engineering with an annual salary of $185,000. He also typically received approximately
$40,000 to $50,000 in annual bonuses. Defendant had left the professional workforce when the
couple had children and worked part-time as a piano teacher earning approximately $10,000 per
year.

        Defendant requested lifetime spousal support. The court instead awarded spousal support
for a period no greater than seven years, though it ruled that spousal support was modifiable.
The court ordered that for the first three years, plaintiff shall pay spousal support such that,
inclusive of child support, defendant would receive $6,000 per month for three years and that in
the following four years, plaintiff is to pay spousal support such that, inclusive of child support,



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defendant would receive $4,000 per month. The court also ordered plaintiff to report his yearly
bonuses to the Friend of the Court (FOC), which would then determine the amount of child
support to be paid from those bonuses, and, should the FOC be unable to do so, defendant would
be awarded 25 percent of the gross proceeds of the bonuses.

        Defendant filed a motion for reconsideration requesting, inter alia, that the court order
spousal support to continue until the parties’ youngest child reached the age of eighteen. The
trial court denied the motion.

       On appeal, defendant argues that the trial court erred when it concluded that plaintiff had
taken on a great deal of the marital debt and when it found that defendant had not attempted to
reduce her expenses. Defendant further asserts that the court abused its discretion in limiting the
period of spousal support and should instead have granted support at least through the time that
the youngest child reached age eighteen. On cross-appeal, plaintiff argues that the trial court
erred by awarding defendant a portion of plaintiff’s annual bonuses above and beyond the other
support. We conclude that, due to the trial court’s combined award of spousal support and child
support, the record is insufficient to allow a meaningful appellate review of these specific
arguments.

         In a novel approach, the trial court awarded defendant a specific amount of combined
spousal support and child support, but did not establish specific amounts of each in its order.
Defendant’s total award was to be supplemented by another unspecific portion of plaintiff’s
yearly bonuses. Such nonspecific awards are insufficient to allow for adequate appellate review.
First, the objectives of spousal support and child support are different. The object in awarding
spousal support is to balance the incomes and needs of the parties so that neither will be
impoverished and is to be based on what is just and reasonable under the circumstances of the
case. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000). By contrast, child
support is “based upon the needs of the child and the actual resources of each parent.” Peterson
v Peterson, 272 Mich App 511, 516; 727 NW2d 393 (2006) (quotation marks and citations
omitted). Second, awards of spousal support and child support are calculated differently.
Spousal support is calculated based on the following factors:

       (1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
       the abilities of the parties to work, (4) the source and amount of property awarded
       to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony,
       (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’
       health, (10) the prior standard of living of the parties and whether either is
       responsible for the support of others, (11) contributions of the parties to the joint
       estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
       a party’s financial status, and (14) general principles of equity. [Olson v Olson,
       256 Mich App 619, 631; 671 NW2d 64 (2003).]

By contrast, “[i]n determining child support, the trial court must generally follow the formula set
forth in the [Michigan Child Support Formula (MCSF)] Manual, which is published by the FOC
pursuant to legislative mandate.” Peterson, 272 Mich App at 516. Third, awards of spousal
support and child support are subject to different, albeit similar, standards of appellate review.
An award of spousal support is reviewed for an abuse of discretion and “must be affirmed unless


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we are firmly convinced that it was inequitable.” Gates v Gates, 256 Mich App 420, 432-433;
664 NW2d 231 (2003). While an award of child support is also reviewed for an abuse of
discretion, “[w]hether a trial court properly operated within the statutory framework relative to
child support calculations and any deviation from the child support formula are reviewed de
novo as questions of law.” Peterson, 272 Mich App at 516-517.

        Because the trial court did not award specific amounts of spousal support and child
support, and because its award to defendant of part of plaintiff’s bonuses was similarly
nonspecific both as to its amount and whether it applied to spousal support or child support, we
vacate the trial court order and remand with instructions to award specific amounts of spousal
support and child support, as well as a specific percentage or amount of plaintiff’s bonuses as
child support and as spousal support, respectively.

        Despite our vacating the trial court support order, we will address two of defendant’s
remaining arguments, those regarding attorney fees and the payment of the children’s out-of-
pocket medical expenses, because we find the necessary factual findings and trial court rulings
sufficient to facilitate appellate review.

        Defendant argues that the trial court abused its discretion when it failed to order plaintiff
to pay a larger amount of defendant’s attorney fees. This Court reviews for an abuse of
discretion a trial court’s award of attorney fees in a divorce action. Hanaway v Hanaway, 208
Mich App 278, 298; 527 NW2d 792 (1995). Findings of fact on which the trial court bases an
award of attorney fees are reviewed for clear error. Stallworth v Stallworth, 275 Mich App 282,
288; 738 NW2d 264 (2007).

        After reviewing the record, we agree with plaintiff’s view that defendant’s counsel
waived this issue by agreeing to a payment of $8,500 from plaintiff in lieu of the trial court
calculating an attorney fee award and reducing it by items such as mediation fees incurred by
plaintiff. “A party may not harbor error as an appellate parachute by assenting to action in the
lower proceeding and raising the issue as an error on appeal.” Wilcoxon v City of Detroit
Election Comm, 301 Mich App 619, 640 n 8; 838 NW2d 183 (2013). Likewise, defendant’s
assertion that the trial court should not have used an ING bank account to provide fees for both
parties’ attorneys was waived because the parties treated the division of the account and the
attorney fee award together. Accordingly, we affirm the trial court’s rulings regarding
defendant’s attorney fees and the ING bank account.

        Defendant challenges the trial court’s decision to require her to pay 50 percent of the
children’s out-of-pocket medical expenses despite the MCSF recommendation that plaintiff pay
90 percent of those costs. Child support orders are reviewed for an abuse of discretion, factual
findings underlying the trial court’s decisions are reviewed for clear error, and whether the trial
court properly applied the MCSF presents a question of law reviewed de novo. Clarke v Clarke,
297 Mich App 172, 178-179; 823 NW2d 318 (2012). A court must follow the MCSF, deviating
from it “only if the formula would be unjust or inappropriate based on the facts of the case” and
sets forth the reasons for departure in writing. MCL 552.605(2); Clarke, 297 Mich App at 179.

       The court found that defendant should pay more than the MCSF-calculated share of 10
percent of the children’s uninsured medical bills because “the court is convinced that the wife in


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this case tends to overuse medical care as opined by her husband.” Plaintiff argues that this was
appropriate pursuant to the “any other factor” provision, which is now found in 2008 MCSF
1.04(E)(21). We conclude that, in light of the evidence presented, the trial court erred in
concluding that defendant overused medical services for her children, and since this was the sole
basis for the deviation, we reverse and remand for the court to order division consistent with the
MCSF.

        Defendant testified to various health concerns regarding the children. She stated that one
child had asthma and had broken both arms in the last five years while climbing trees. She stated
that another child suffered from irritable bowel syndrome, psychological problems including
depression, and had ear tubes. She stated that a third child is lactose intolerant, has had three sets
of ear tubes, and sees a chiropractor monthly. She also testified about two incidents where the
children required care in a hospital and plaintiff did not want her to take them because of the
expense: one for severe salmonella and one for a partial amputation of a finger.

        She also testified about the disagreement she had with plaintiff when she decided to take
the eldest son to a psychiatric care facility. Defendant maintained that she brought the child to
the facility because he was punching holes in the wall, physically pushing her around, throwing
things, and making suicide threats after she told him that she would not tolerate his drinking and
called the police. Plaintiff did not support her decision and took the child to live with him in
Indiana once the child was released from the facility.

         Significantly, defendant presented the testimony of Rosa Maira, D.O., the children’s
physician, whose details of the children’s medical histories mirrored defendant’s. Dr. Maira
confirmed the diagnoses and treatments in question and when asked whether the children were
“going to the doctor too often” or more than necessary, she testified that, on the basis of her
review of the medical records, they were not. By contrast, plaintiff offered no contrary medical
testimony or other medical evidence. He offered only his own opinion testimony as to the need
for certain treatments. Given the disparity in evidence, we conclude that the trial court erred in
its findings and so abused its discretion by concluding that the MCSF-calculated formula, which
provided that defendant be responsible for 10 percent of the children’s uninsured medical
expenses “would be unjust or inappropriate based on the facts of the case.” MCL 552.605(2);
Clarke, 297 Mich App at 179. Accordingly, we direct the trial court on remand to order plaintiff
and defendant to bear the costs of the children’s out-of-pocket medical expense consistent with
the MCSF.

        Vacated and remanded for proceedings consistent with this opinion.                We retain
jurisdiction.



                                                              /s/ Michael J. Kelly
                                                              /s/ Jane M. Beckering
                                                              /s/ Douglas B. Shapiro




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                              Court of Appeals, State of Michigan

                                                 ORDER
                                                                               Michael J. Kelly
Rudolf Marcel Smaling v Laura Cordelia Smaling                                  Presiding Judge

Docket No.     314826                                                          Jane M. Beckering

LC No.         20 11-00545 1-DM                                                Douglas B. Shapiro
                                                                                Judges


        Pursuant to the opinion issued concurrently with this order, those portions of the judgment of
divorce addressing spousal support and child support are vacated and the case REMANDED to the trial
court to clarify its judgment as to the amounts and terms of such support. The trial court shall also
modify the judgment to conform to this Court's ruling as to the payment of the children's out-of-pocket
medical expenses.

       The trial court shall issue a new judgment consistent with this order and the opinion within 56
days of the Clerk's certification of this order.

       The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders or judgments entered on
remand.

      The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.




                          A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on




                                   DEC 04 2014
                                          Date
