If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

HOLLY CYNTHIA THOMAS,

Plaintiff-Appellee,

UNPUBLISHED

February 22, 2024

v No. 366112

Van Buren Circuit Court

BRADLEY EDWARD THOMAS, LC No. 2020-070131-DM

Defendant-Appellant.

Before: HOOD, P.J., and MURRAY and MALDONADO, JJ.

PER CURIAM.

Defendant, Bradley Edward Thomas, appeals by right the judgment of divorce, order for 

spousal support, and order for child support entered after several days of a bench trial and 

numerous hearings. He also challenges the trial court’s decision to dismiss his motion to change 

custody after the parties settled their custody dispute on the record. Defendant argues on appeal 

that the trial court should have granted his motion to change custody because he established proper 

cause or a change of circumstances to warrant an evaluation of the statutory best interest factors. 

He maintains that the trial court erred when it failed to impute a greater income to plaintiff, Holly 

Cynthia Thomas, which—in his view—affected the propriety of the child support and spousal 

support orders. He also argues that the trial court abused its discretion when it refused to give him 

credit for, or offsets against, his status quo payments during the pendency of the divorce. We agree 

that the trial court erred in several respects that warrant relief. Accordingly, for the reasons 

explained in this opinion, we affirm in part, vacate in part, and remand for further proceedings.

I. BASIC FACTS

Plaintiff and defendant married in 2005, and the parties had four minor children together: 

JT, BT, UT, and ST.

1

 Plaintiff was 46 years of age when the trial began, and defendant was 39 

years of age. Defendant started his own excavating business shortly after the parties’ marriage 

 

1 Plaintiff has three adult children from a previous relationship.
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and operated it through a corporation and a limited-liability company. Plaintiff was a stay-at-home 

mother for most of the marriage.

Plaintiff sued for divorce in June 2020. She also filed ex parte motions for entry of a 

restraining order to prevent the dissipation of the marital estate and for exclusive use of the marital 

home. The trial court granted the motions and entered the ex parte orders. More specifically, in 

the order to maintain the status quo, the court ordered defendant to deposit $2,100 each month into 

plaintiff’s joint bank account so that she could continue to pay the expenses that she had been 

paying using that account; it also gave plaintiff the exclusive use of the parties’ Yukon Denali. 

The trial court later conducted a hearing because defendant objected to the status quo order. After 

hearing testimony, the trial court modified the order to require defendant to deposit $1,600 a month 

in the joint account. It otherwise affirmed the orders requiring defendant to maintain the status quo 

and providing that plaintiff had the exclusive use of the marital home and the Denali.2

The trial court conducted a bench trial over several days spanning from April 2021 through 

to April 2022, at which point the trial court gave its oral ruling settling the property disputes and 

determining defendant’s income from his excavation business. Although the trial was complete,

the parties continued to fight over various issues, and the court still had not entered a judgment, an 

order for spousal support, or an order for child support by November 2022. During that month, 

defendant also moved for a change in custody premised on proper cause or a change in 

circumstances. The trial court conducted a hearing in April 2023 to address the continued disputes 

over the proposed judgment of divorce. At that hearing, the trial court dismissed defendant’s 

motion to change custody as premature and canceled all subsequently scheduled hearing dates. 

The court entered the judgment of divorce in April 2023 as well as uniform spousal and child 

support orders.

This appeal followed.

II. MOTION TO CHANGE CUSTODY

Defendant argues that the trial court erred by sua sponte dismissing his motion for a change 

in custody without notice and without addressing the merits of the motion. We agree.

A. STANDARDS OF REVIEW

Appellate review of the trial court’s custody decision is limited: “all orders and judgments 

of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against 

the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on 

a major issue.” MCL 722.28. “A finding of fact is against the great weight of the evidence if the 

evidence clearly preponderates in the opposite direction.” Pennington v Pennington, 329 Mich 

App 562, 570; 944 NW2d 131 (2019). This Court reviews a trial court’s custody decision for an 

abuse of discretion. Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006). This 

Court will conclude that a trial court abused its discretion regarding a custody dispute only when 

 

2 We refer to the orders compelling defendant to make payments to maintain the status quo pending 

the divorce collectively as the status quo orders.
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its “decision is so palpably and grossly violative of fact and logic that it evidences a perversity of 

will, a defiance of judgment, or the exercise of passion or bias.” Geering v King, 320 Mich App 

182, 188; 906 NW2d 214 (2017) (quotation marks and citation omitted). A trial court commits a 

clear legal error when it “incorrectly chooses, interprets, or applies the law.” Dailey v Kloenhamer, 

291 Mich App 660, 664-665; 811 NW2d 501 (2011). 

B. ANALYSIS

MCL 722.27(1) provides, in relevant part:

(1) If a child custody dispute has been submitted to the circuit court as an 

original action under this act or has arisen incidentally from another action in the 

circuit court or an order or judgment of the circuit court, for the best interests of the 

child the court may do 1 or more of the following:

(a) Award the custody of the child to 1 or more of the parties involved . . . . 

* * *

(c) Subject to subsection (3), modify or amend its previous judgments or 

orders for proper cause shown or because of change of circumstances until the child 

reaches 18 years of age . . . . The court shall not modify or amend its previous 

judgments or orders or issue a new order so as to change the established custodial 

environment of a child unless there is presented clear and convincing evidence that 

it is in the best interest of the child.

MCL 722.23 provides the factors that the trial court must consider when deciding what is in the 

best interests of the child.

The trial court’s sua sponte dismissal of defendant’s motion to change custody was based 

on its apparent belief that it could not hear such a motion until the prior custody order was 

incorporated into a final judgment. On February 1, 2022, while the bench trial was still ongoing,

the trial court entered an order titled, “ORDER RESOLVING PENDING CUSTODY & 

PARENTING TIME TO BE INCORPORATED INTO JUDGMENT OF DIVORCE.” The court, 

after outlining the custody arrangement, stated that “this Order shall be effective immediately as a 

temporary Order and shall be incorporated in the final Judgment of Divorce.” This order was 

consistent with an agreement to which the parties stipulated. The following November, defendant 

filed a motion for a change in both legal and physical custody. 

In February 2023, an evidentiary hearing regarding defendant’s motion began, and the 

referee heard testimony from a reunification and coparenting therapist. However, at a hearing in 

April 2023, the circuit court sua sponte dismissed defendant’s motion because

there were no final orders in place. It’s not—I mean at some point the parties make 

agreement or the Court makes orders and it goes into a judgment of divorce and it 

needs to get finalized. That’s what we’re doing today is we are finalizing 

everything, and as of today any of these motions that are pending, it looks like one 
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I can show is this motion to modify legal and physical custody. I’m going to grant 

[plaintiff’s] motion that she filed on November 23rd to deny that motion.

The court then entered a judgment of divorce in which it incorporated the prior custody order 

without having ever conducted a complete evidentiary hearing nor making best interest findings.

Michigan caselaw has made it clear that a temporary custody order entered by stipulation 

of the parties without an evidentiary hearing or best interest findings is not a true custody order as 

anticipated by the Child Custody Act, MCL 722.21 et seq. Particularly instructive is Thompson v 

Thompson, 261 Mich App 353; 683 NW2d 250 (2004). In that case, “[the] trial court signed the 

parties’ stipulation for ‘temporary custody’ ” without conducting an “evidentiary hearing 

regarding the best interests factors.” Id. at 358. When discussing whether the court needed to find 

proper cause or a change of circumstances to revisit custody at the trial, this Court stated that the 

trial court “had not awarded custody before the trial.” Id. at 360.3 “It is improper to decide the 

issue of custody on the pleadings alone when no evidentiary hearing is held” because “parties 

cannot conclusively agree regarding child custody.” Id. at 359-360.

When Thompson’s holding is applied to this case, the trial court essentially entered into the 

judgment of divorce the stipulated temporary custody order, even though at the time of entry of 

the judgment proceedings were underway on defendant’s contested motion to change custody. 

Moreover, it did so by dismissing defendant’s motion, and without ever making findings regarding 

the best interests of the children. It is well established that “[a] trial court must consider the factors 

outlined in MCL 722.23 in determining a custody arrangement in the best interests of the children 

involved.” Bofysil v Bofysil, 332 Mich App 232, 244; 956 NW2d 544 (2020) (emphasis added). 

The trial court’s failure to make best interest findings when it was clearly apparent there was a 

continuing dispute over the proper custody for the children was a clear legal error. See Dailey, 

291 Mich App at 664-665. Therefore, we must vacate the trial court’s custody award and remand 

for a hearing regarding the best interests of the children.

III. IMPUTED INCOME

Defendant argues that the trial court erred by not imputing enough income to plaintiff under 

the Michigan Child Support Formula (MCSF). We vacate the trial court’s decision to impute 

income and order additional fact-finding.

A. STANDARD OF REVIEW

 

3

“Before modifying or amending a custody order, the circuit court must determine whether the 

moving party has demonstrated either proper cause or a change of circumstances to warrant 

reconsideration of the custody decision.” Dailey v Kloenhamer, 291 Mich App 660, 665; 811 

NW2d 501 (2011), citing MCL 722.27(1)(c). This finding was not necessary because the only 

order previously entered was a temporary one. Thompson, 261 Mich App at 357. Additionally, 

although we recognize (as did the trial court) that there was theoretically no final custody order to 

“change” at the time of entry of judgment, it was undisputed that a live custody dispute existed 

between the parties at the time the temporary order was entered into the judgment of divorce.
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This Court reviews de novo whether the trial court properly interpreted and applied the 

relevant statutes and the MCSF. See Borowsky v Borowsky, 273 Mich App 666, 672; 733 NW2d 

71 (2007). This Court reviews for an abuse of discretion a trial court’s exercise of the discretion 

granted by the MCSF. Id. A trial court abuses its discretion when its decision falls outside the 

range of reasonable and principled outcomes. Id. Finally, this Court reviews for clear error a trial 

court’s findings in determining child support. Id. A finding is clearly erroneous when, after

reviewing the entire record, this Court is left with the definite and firm conviction that the trial 

court erred. Stallworth v Stallworth, 275 Mich App 282, 284; 738 NW2d 264 (2007).

B. ANALYSIS

The trial court had to order child support by applying the MCSF unless it found that 

applying the formula would be unjust or inappropriate. See Borowsky, 273 Mich App at 673. The 

first step in applying the formula is to determine the parents’ income. See 2021 MCSF 2.01. The 

formula defines “income” to include various forms of payments to the parent, but it generally 

includes wages from employers and regular payments to which the parent is legally entitled. See 

MCL 552.602(o); 2021 MCSF 2.01(A) to (M).

1. ACTUAL INCOME

Defendant raises various arguments regarding alleged errors that the trial court made when 

calculating plaintiff’s actual income because it did not consider various sources of income that she 

had. Each of these arguments is without merit.

Defendant argues that the trial court should have considered the payments that it ordered 

him to make on behalf of plaintiff and the children while the case was ongoing. Those payments, 

however, were in effect spousal support and child support payments intended to maintain the status 

quo pending resolution of the divorce. Accordingly, the trial court did not err by declining to 

consider those payments because the formula specifically excludes them from income. See 2021 

MCSF 2.01(F) (stating that spousal support is not income as between the parties); 2021 MCSF 

2.03 (stating that a child’s income should not be considered when calculating a support obligation); 

2021 MCSF 2.07(A)(2) (stating that spousal support paid by the other spouse is not to be included 

in the recipient’s income).

Defendant argues that the trial court should have considered the fact that plaintiff had a 

joint bank account with her mother and that it should have found that plaintiff had regular income 

in the form of gifts from her mother. Plaintiff testified that, even before the divorce, she frequently 

asked her mother for money to help with living expenses. She asserted that she had to do so 

because defendant did not provide sufficient funds to allow her to care for the children. She stated 

that she borrowed the money from her mother and testified that it was not regularly available to 

her. She informed the trial court that she had borrowed a little over $13,000 from her mother, 

which included tuition for her college courses. Plaintiff testified that she felt obligated to repay 

the money and that the joint bank account belonged to her mother. She explained that her mother 

used this account as an efficient way to transfer funds to plaintiff by depositing the funds when 

needed. Gifts can constitute income to a parent if the gifts “regularly reduce[] personal expenses,” 

or “[r]eplaces or supplements employment income.” 2021 MCSF 2.05(C). Plaintiff’s testimony 

permitted an inference that she regularly borrowed money from her mother, but that the money
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transfers were not gifts because she had the intent to repay them. The bank account was similarly 

just a tool to enable quick transfers of money deposited by her mother. Accordingly, the trial court 

did not clearly err to the extent that it credited plaintiff’s testimony and found that these payments 

were not income to plaintiff. See Stallworth, 275 Mich App at 284.

Defendant argues that the trial court erred by failing to consider that plaintiff likely had 

income from family trusts. Plaintiff did testify about two family trusts. She stated that she was 

the beneficiary of a trust owned by her mother, but she was not entitled to any money from that 

trust until her mother died. For that reason, her mother’s trust was not a source of income for her 

daily needs. Plaintiff also testified about a trust that her grandparents set up and for which she was 

the beneficiary. She stated that she used the proceeds from that trust on the marital home and that 

it no longer had any funds after she cashed it out. Plaintiff’s mother testified that she was familiar 

with the trust set up by plaintiff’s grandparents, and she agreed that that trust no longer had any 

funds. The evidence established that plaintiff did not have any income from her mother’s trust 

because her mother had not yet died and that her grandparents’ trust had been depleted. 

Accordingly, evidence showed that the trusts were not income for purposes of calculating child 

support. See 2021 MCSF 2.05(A) (stating that income does not include property from

inheritances); 2021 MCSF 2.05(B) (stating that income does include interest earned on inherited 

property). 

Defendant, therefore, has not shown that the trial court erred when it failed to find that 

plaintiff had income from these sources.

2. IMPUTED INCOME

Defendant argues that the trial court abused its discretion when imputing income to plaintiff 

by failing to follow the requirements for imputing income to a parent under the formula. Defendant 

also argues that the court erred by imputing less income to plaintiff than her actual earning ability.

“Generally, the Legislature has prescribed that courts shall follow the” child support 

formula as laid out in the MCSF Manual. Burba v Burba, 461 Mich 637, 644; 610 NW2d 873 

(2000); see also Peterson v Peterson, 272 Mich App 511, 516; 727 NW2d 393 (2006). The MCSF 

gives trial courts the discretion to include potential income when calculating a parent’s income if 

the court finds that the parent is “voluntarily unemployed or underemployed, or had an unexercised 

ability to earn.” 2021 MCSF 2.01(G). See also Berger v Berger, 277 Mich App 700, 725; 747 

NW2d 336 (2008). When applying the MCSF, courts should use the “relevant” factors to 

determine whether a parent has the “actual ability to earn and a reasonable likelihood of earning 

the potential income,” and the potential factors include:

(a) Prior employment experience and history, including earnings history, 

and reasons for any termination or changes in employment.

(b) Educational level, literacy, and any special skills or training.

(c) Physical and mental disabilities that may affect a parent’s ability to 

work, or to obtain or maintain gainful employment.
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(d) Availability for work (exclude periods when a parent could not work or 

seek work, e.g., hospitalization, incarceration, debilitating illness, etc.).

(e) Availability of opportunities to work in the local geographical area.

(f) The prevailing wage rates and number of hours of available work in the 

local geographical area.

(g) Diligence exercised in seeking appropriate employment.

(h) Evidence that the parent in question is able to earn the imputed income.

(i) Personal history, including present marital status, age, health, residence, 

means of support, criminal record, ability to drive, and access to transportation, etc.

(j) The presence of the parties’ children in the parent’s home and its impact 

on that parent’s earnings.

(k) Whether there has been a significant reduction in income compared to 

the period that preceded the filing of the initial complaint or the motion for 

modification. [2021 MCSF 2.01(G)(2).]

“These factors generally ensure that adequate fact-finding supports the conclusion that the parent 

to whom income is imputed has an actual ability and likelihood of earning the imputed income.” 

Berger, 277 Mich App at 725-726. The MCSF provides that a court does not comply with the 

requirements applicable to the imputation of income if it fails to “articulate information about how 

each factor in [2021 MCSF 2.01(G)(2)] applies to a parent having the actual ability and a 

reasonable likelihood of earning the imputed potential income, or failing to state that a specific 

factor does not apply.” See 2021 MCSF 2.01(G)(4)(c).

In this case, the trial court determined that it would impute income to plaintiff in passing 

as part of its decision on the property award. It explained:

Earnings abilities of the parties. Plaintiff is 46 years old and in good health. 

She has some college education, is hoping to complete an associate’s degree in the 

summer of 2022. Plaintiff has not been recently employed. She is employable and 

it is reasonable to conclude that her ability to earn income is very good. And, her 

earning potential should greatly improve when she concludes her education and has 

further work experience. The Court is going to determine that we need to impute 

income on the plaintiff. Plaintiff has not worked for quite a few years, has been a 

stay at home mother. The children are back in school and are going to school full 

time and while it’s clear that there may be some other issues that need to be dealt 

with such as day care and other matters that can at times be calculated into child 

support calculations, the Court is going to impute income on . . . at a minimal. We 

understand minimum wage is less than $10 an hour but the Court is going to impute 

$10 an hour for 40 hours a week for an income of $20,800 per year or $1,733 per 

month.
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The trial court seems to have only considered plaintiff’s education, her recent employment 

history, and the presence of the children in the home. The record suggests that the trial court did 

not consider the majority of the factors required. The court clearly did not go through each factor 

listed by 2021 MCSF 2.01(G)(2) and did not articulate how that factor applied or state that the 

factor did not apply, as required by 2021 MCSF 2.01(G)(4)(c). In her brief on appeal, plaintiff 

addresses each factor and cites trial testimony that would have supported a finding in favor of the 

trial court’s decision for each factor. The problem, however, is not that there was no evidence to 

support specific findings regarding each of the factors required to impute income under the MCSF. 

The trial court did not comply with the requirements to analyze each factor or state that the factor 

did not apply, and the trial court could not impute income to plaintiff without complying with the 

requirements of the MCSF. Accordingly, the trial court erred as a matter of law when it elected to 

exercise its discretion without complying with the requirements of the MCSF. See Elher, 499 

Mich at 21.

Accordingly, we vacate the trial court’s decision to impute income to plaintiff. On remand,

the trial court shall determine whether to impute income to plaintiff and how much income to 

impute by using the factors provided in 2021 MCSF 2.01(G)(2).

IV. SPOUSAL SUPPORT

Defendant’s argument that the trial court erred by ordering spousal support is without 

merit; however, we vacate the support award and remand this case for recalculation of the amount 

of spousal support.

A. STANDARDS OF REVIEW

This Court reviews a trial court’s decision concerning whether to award spousal support 

for an abuse of discretion. See Loutts v Loutts, 298 Mich App 21, 25; 826 NW2d 152 (2012). A 

trial court abuses its discretion when its decision falls outside the range of reasonable and 

principled outcomes. Id. at 26. This Court reviews for clear error the findings underlying the trial 

court’s decision on spousal support. Id. A finding is clearly erroneous when this Court is left with 

a definite and firm conviction that the trial court was mistaken. Id.

B. ANALYSIS

The Legislature has granted trial courts the discretion to order one spouse to pay spousal 

support to the other when “the estate and effects awarded to either party are insufficient for the 

suitable support and maintenance of either party and any children of the marriage who are 

committed to the care and custody of either party.” MCL 552.23(1). The purpose of an award of 

spousal support is to “balance the incomes and needs of the parties so that neither will be 

impoverished.” Loutts, 298 Mich App at 26. When determining whether to order spousal support, 

Michigan courts must use a case-by-case approach that examines all the facts and circumstances 

surrounding the case; there is no strict formula. Id. at 29-31.
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Michigan courts examine all the relevant factors, which include:

(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. [Id. at 31-32 

(quotation marks and citations omitted).]

The trial court should make specific findings for each of the factors that are relevant to the 

particular case. Id. at 32. This Court will affirm an award of spousal support unless it is “firmly 

convinced that it was inequitable.” Andrusz v Andrusz, 320 Mich App 445, 452; 904 NW2d 636 

(2017) (quotation marks and citation omitted). In this case, the trial court specifically addressed 

the factors applicable to an award of spousal support, and defendant challenges some of its 

findings.

First, defendant argues that the court’s findings regarding his income and the outlook of 

his excavation business were without evidentiary support. The Court found that defendant “will 

have a continuous source of income from the business for many years.” Although there was record 

evidence that defendant’s excavation business had some difficulties in recent years, the record 

showed that he had consistently generated enough revenue from the business to both meet the 

business’s needs and to draw an adequate salary. The record showed that defendant’s income from 

the business had been the sole regular support for the family throughout the marriage, and it was 

undisputed that defendant met the payment obligations ordered by the court in the status quo orders 

during the pendency of the divorce. Indeed, defendant testified that—notwithstanding the loss of 

prequalification status—he had continued to obtain road jobs, he was working on one at the time 

of trial, and he would be starting another a week later. The record showed that defendant’s 

excavation business suffered in part because of the problems associated with the divorce. He also 

lost the ability to bid on state projects and projects in Allegan County due to losses on his more 

recent financial statements. Notwithstanding these concerns, defendant testified that the negative 

year was a “weird year,” and he was hopeful that he could turn things “back around.” The evidence 

supported an inference that defendant would be able to maintain the business and generate a stream 

of income that was at least comparable to the income that he derived during the pendency of the 

divorce. 

Second, defendant argues that the trial court did not adequately consider the property award

to plaintiff that was—in his view—sufficient for plaintiff’s financial maintenance. The trial court 

awarded plaintiff an approximately equal share of the estate, but the vast majority of the value was 

associated with two parcels of real estate. None of the property awarded to plaintiff could be 

expected to generate revenue. Defendant’s award, by contrast, included the businesses, which had 

generated, and continued to generate, a substantial stream of income. Plaintiff’s property would 

only generate revenue if it were sold. Plaintiff could not reasonably be expected to sell the home 

in which she lived; a spouse normally should not be required to invade his or her property for his 
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or her own support. See Olson v Olson, 256 Mich App 619, 632-634; 671 NW2d 64 (2003). This 

argument is without merit.

Finally, defendant argues that, due to equitable considerations, the trial court’s decision 

was not “just and reasonable” as required by MCL 552.23(1). According to defendant, the court 

did not consider the status quo payments defendant made to plaintiff during the pendency of the 

divorce, wrongfully blamed and punished defendant for the breakdown in the marriage, and failed 

to consider that plaintiff was voluntarily unemployed. By its terms, MCL 552.23(1) is prospective 

looking—it authorizes a trial court to award spousal support when the court finds that the estate 

awarded to one spouse is insufficient for his or her needs after the divorce. Moreover, as this Court 

has explained, the goal of an award of spousal support is to ensure that neither spouse is 

impoverished by the divorce. See Loutts, 298 Mich App at 32. Thus, the payments made to 

maintain the status quo during the pendency of the proceeding were not probative of plaintiff’s 

needs moving forward. Moreover, defendant’s argument that he was being punished for causing 

the breakdown in the marriage is unsupported by the record. Finally, contrary to defendant’s 

contention on appeal, the trial court did not examine the equities through a “unidimensional lens” 

that allowed plaintiff to remain voluntarily unemployed. The trial court actually imputed income 

to plaintiff on finding that she was voluntarily unemployed. The trial court, however, recognized 

that plaintiff had not yet completed her education and still had a home to maintain and children for 

which she had to care. The court examined plaintiff’s budget and found that she had a shortfall, 

which impliedly amounted to a finding that she would be impoverished, even assuming that she 

returned to work. 

Although the trial court did not abuse its discretion when it determined that an award of 

spousal support would be appropriate, it premised its exercise of discretion on the imputation of 

income that was determined without fully complying with the requirements of the MCSF, which, 

as already noted, must be reexamined on remand. Indeed, the court expressly incorporated its 

decision to impute an income of $10 per hour for 40 hours a week into its decision regarding 

spousal support. Because the recalculation of plaintiff’s earning potential might affect the trial 

court’s determination concerning the amount and length of any award of spousal support, we

affirm the trial court’s decision to award spousal support but vacate the amount. On remand, the 

court shall revisit this issue in light of its decision on remand regarding imputation of income.

V. DOUBLE-DIPPING

Defendant argues that the trial court engaged in impermissible “double dipping” by failing 

to account for the status quo payments when entering child and spousal support awards. We 

disagree.

The sole authority upon which defendant relies for this argument is Loutts v Loutts, which 

lays out the law governing this concept of “double dipping” in divorce proceedings. In Loutts, the 

plaintiff earned a $240,000 yearly salary from a business that he had formed, but the trial court 

imputed an income of only $130,000 because it “awarded defendant one-half the value of [the 

business] when it divided the parties’ marital assets.” Loutts, 298 Mich App at 26. The trial court 

reasoned that it would be impermissible “double dipping” if it awarded half of the business’s value 

to the defendant then also considered the business when calculating spousal support. Id. This 

Court determined that the trial court erred:
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[A] trial court’s decision to award spousal support is discretionary and should 

reflect what is just and reasonable under the circumstances of the case. Parties to a 

divorce action are entitled to individual consideration based on the law and facts 

applicable to their case. Spousal support does not follow a strict formula. Indeed, 

given the statutory mandate of MCL 552.23 there is no room for the application of 

any rigid and arbitrary formulas when determining the appropriate amount of 

spousal support.” Accordingly, we decline to adopt a bright-line rule with respect 

to “excess” income and hold that courts must employ a case-by-case approach when 

determining whether “double-dipping” will achieve an outcome that is just and 

reasonable . . . . [Id. at 30 (quotation marks, citations, and alterations omitted).]

While defendant’s arguments with respect to this issue are not clear, it is clear that Loutts

does not help him. First and foremost, in Loutts, this Court held that double-dipping was a 

permissible exercise of a court’s discretion. Second, defendant is not describing the scenario 

present in Loutts. Defendant does not argue that the court erred by considering the salary he earned 

from his business; rather, he argues that the court erred by failing, in his view, to consider the fact 

that plaintiff had been receiving ongoing status quo payments. Loutts in no way supports this 

argument, and this argument has been raised and rejected with respect to other issues in this appeal. 

Defendant does suggest that the “double-dipping” occurred because of assets that plaintiff received 

through the property award, but this argument was addressed with respect to defendant’s spousal 

support arguments.

In conclusion, defendant has failed to establish any basis for relief with respect to any 

alleged “double dipping” of assets. 

VI. MCSF DEVIATION

Defendant argues that the trial court abused its discretion when it refused to deviate from 

the MCSF and ordered him to pay back child support because of the ongoing status quo payments 

he made through the pendency of the divorce. We agree.

A. STANDARD OF REVIEW

This Court reviews de novo whether the trial court properly interpreted and applied the 

relevant statutes and the MCSF. See Borowsky, 273 Mich App at 672. This Court reviews for an 

abuse of discretion a trial court’s exercise of the discretion granted by the MCSF. Id. A trial court 

abuses its discretion when its decision falls outside the range of reasonable and principled 

outcomes. Id. Finally, this Court reviews for clear error a trial court’s findings in determining 

child support. Id. A finding is clearly erroneous when, after reviewing the entire record, this Court 

is left with the definite and firm conviction that a mistake was made. See Stallworth, 275 Mich 

App at 284.

B. ANALYSIS

The trial court had an obligation to calculate child support in conformity with the MCSF. 

See MCL 552.605(2). Nevertheless, the trial court had the discretion to “enter an order that 
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deviates from the formula if the court determines from the facts of the case that application of the 

child support formula would be unjust or inappropriate.” MCL 552.605(2). 

The court may enter an order that deviates from the formula if the court determines 

from the facts of the case that application of the child support formula would be 

unjust or inappropriate and sets forth in writing or on the record all of the following:

(a) The child support amount determined by application of the child support 

formula.

(b) How the child support order deviates from the child support formula.

(c) The value of property or other support awarded instead of the payment 

of child support, if applicable.

(d) The reasons why application of the child support formula would be 

unjust or inappropriate in the case. [MCL 552.605(2).]

The formula provides additional guidance for deviations. It states that the court should 

follow the formula even when it deviates “except for the provisions that create an unjust result.” 

2021 MCSF 1.04(B). The formula also identifies situations that can cause the strict application of 

the formula to be unjust or inappropriate. See 2021 MCSF 1.04(E). One of those situations 

involves cases wherein the trial court has ordered “a parent to pay taxes, mortgage installments, 

home insurance premiums, telephone or utility bills, etc., before entry of a final judgment or order.” 

2021 MCSF 1.04(E)(12).

In June 2020, the trial court entered an ex parte order requiring defendant to deposit $2,100 

for plaintiff’s use into the parties’ joint bank account in order to maintain the status quo during the 

pendency of the divorce. The court also gave plaintiff the exclusive use of the family’s Denali and 

the marital home. The trial court conducted a hearing in August 2020 to determine the continued 

propriety of that order after defendant objected to it. The trial court heard testimony at that hearing 

about the manner in which the parties had historically maintained their household and learned that 

defendant had paid all the household expenses except certain expenses involving the children and 

household. For those expenses, although plaintiff believed it was not enough, it was defendant’s 

practice to give plaintiff $1,600 a month so that plaintiff could pay those expenses. Plaintiff 

testified that the $1,600 a month was to “pay the bills or buy the kids their needs like clothing, 

shoes, etcetera, toys, birthday presents. Basically it goes right back into the house and right to the 

kids.” After hearing the testimony, the trial court modified the earlier restraining order to require 

defendant to deposit $1,600 a month into a joint bank account for plaintiff’s use. It also gave 

plaintiff the exclusive use of the marital home and the family’s Denali. The trial court later held 

defendant in contempt for using a portion of the $1,600 that he deposited into the joint bank 

account for payments on the Denali and ordered him to reimburse plaintiff for the $3,841.95 

shortfall caused by that practice. The trial court’s order of contempt made it clear that defendant 

was responsible for paying the expenses associated with the Denali out of his personal income 

other than the funds that he deposited, which were for plaintiff’s exclusive benefit to meet the 

expenses associated with maintaining her household and supporting the children when in her care.
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In response to defendant’s arguments, plaintiff argues that the payments required by the 

status quo orders were not spousal support and not child support because the trial court never 

applied that label to the payments. For that reason, she maintains that it would not be proper to 

give defendant any credit for those payments against his child support and spousal support 

obligations. This argument is not persuasive. The effect of these orders was to compel defendant 

to cover all of the family’s expenses that he had historically covered during the pendency of the 

divorce in the same manner that he had before the parties’ separation even though he no longer 

had the use of the family home. This was in addition to his obligation to pay all of the expenses 

for his children during his parenting times. Therefore, the trial court’s order essentially required 

defendant to cover all the living expenses of the children and plaintiff throughout the pendency of 

the divorce. By any other label, such payments would be deemed spousal support or child support, 

or some combination. Defendant should not be penalized for complying with the trial court’s 

orders and making payments that kept plaintiff and the children from being impoverished during 

the pendency of the divorce.

In any event, the label given the payments is not dispositive. The MCSF allows a deviation 

from the strict application of the support calculations when the trial court has ordered one spouse 

to make payments that reduced his or her income available for child support, see 2021 MCSF 

1.04(E)(12), and that provision clearly applied to the facts of this case without regard to whether 

the payments were characterized as status quo payments. Defendant made thousands of dollars of 

payments to support plaintiff and the children during the pendency of the divorce. Despite these 

payments, the trial court calculated defendant’s child support obligation for the same period as 

though he had not made any payments. It essentially treated defendant as though he had 

completely failed to support his children during that time frame and had all the income from that 

period available to pay support. The court also did not adjust plaintiff’s income to reflect that she 

had the benefit of these payments. Instead, the trial court imputed an income to plaintiff that was 

less than the benefit that she received in payments that defendant made on her behalf and on behalf 

of the children. 

When it denied defendant’s request for credit or an offset, the trial court explained that the 

case had been pending for a long time through the fault of both parties and that it was difficult to 

determine defendant’s actual income. It also reasoned that defendant would likely make a lot more 

income in the future. These reasons are not well-taken. The fact that defendant had to make the 

payments for an inordinately long period did not militate against a deviation—rather, it strongly 

suggested that it would be unjust or inappropriate for the court to not make some provision for the 

required payments given how long he had made them. There was also no evidence that defendant 

would be making substantially more income in the future, and even if he were to have an increase,

that increase would justify a future recalculation of his support obligation—it would not justify a 

past unjust or inappropriate child support order.

For these reasons, we vacate the order for child support and remand for recalculation of the 

child support applicable to the period for which defendant was required to make the various status 

quo payments.
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VII. CONCLUSION

The trial court’s order dismissing defendant’s motion to change custody is vacated. The 

trial court’s calculation of plaintiff’s actual income is affirmed, but the amount of additional

income it imputed to plaintiff is vacated. The trial court’s decision to order spousal support is 

affirmed, but the amount of spousal support is vacated. The trial court’s child support order is also 

vacated. This case is remanded for additional proceedings consistent with this opinion. We do 

not retain jurisdiction. Neither party having entirely prevailed, no costs may be taxed. MCR 

7.219(A).

/s/ Noah P. Hood 

/s/ Christopher M. Murray 

/s/ Allie Greenleaf Maldonado