Atlanta Divorce Attorney Blog

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

There was recently a new article on ajc.com about the lawsuit against NFL receiver Terrell Owens in Fulton County for failure to pay child support. Lawyer: T.O. could face jail for failure to pay child support, by Christian Boone, The Atlanta Journal-Constitution, September 8, 2011. As mentioned in my previous blog on the subject, one possible punishment for the willful failure to pay child support is incarceration – and it looks like the plaintiff’s lawyer has petitioned the trial court for just that. According to the article, the original contempt petition for June and July child support payments was withdrawn after the full amounts were paid. However, now Owens appears to have failed to pay support for August or September, which is the subject of the current lawsuit.

The plaintiff’s attorney says that Owens has given no reason for his refusal to pay. The article further states that, though he is not currently signed by any NFL team, he is starring in a reality television show and his estimated monthly income is $666,000. If this is true, he should be able to afford the $5,000 child support payments. The case is currently pending, and a judge will decide whether to jail Owens or force him to make all back payments along with attorney’s fees.

The Georgia Court of Appeals recently upheld an order for supervised visitation, despite the father's allegations of 17 errors by the trial court. Gottschalk v. Gottschalk, A11A0565 (2011). In that case, the parties consented to joint legal and physical custody of their children in their divorce action, with detailed visitation provisions in the final decree. Id. at 3. About a year later, after the father’s arrest, the mother filed a petition seeking supervised visitation for the father. Id. The trial court appointed a custody evaluator, who was to write a report to be distributed ONLY to the court, guardian ad litem and the parties, except upon the court’s express permission otherwise. Id. at 4. During the hearing, the trial court discovered that the father’s expert witness had received a copy of the custody evaluation, and barred the expert from testifying about it since the father had not received express permission to disclose it to him. Id. at 7. The trial court ultimately granted the petition for supervised visitation, holding, with significant factual support, that the father’s “conduct was potentially dangerous for the children.” Id. at 9. After the father’s motion for a new trial was denied, he appealed.

Several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. In one enumeration of error, he alleges “the trial court erred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used.” Id. at 17-18. The Georgia Court of Appeals disagreed, holding that the orders were “very clear that the report could be disseminated only to the parties, attorneys, and guardian unless otherwise allowed by the court,” and the language “is not susceptible to any other interpretation.” Id. The Court of Appeals also pointed out that parties consented to the order, and “both sides had previously sought and obtained permission to reveal the contents for the report to specific people.” Id. Thus, the Court was not at all sympathetic to this allegation. If the father had just gone through the proper procedure, his expert likely would have been permitted to review the report and testify about it.

In addition to addressing the final decision making issue in Avren v. Garten, the Supreme Court of Georgia also addressed the trial court’s dismissal of the mother’s petitions for contempt, and modification of custody, child support and visitation. Avren v. Garten, S11A0064 (2011). The mother contended that the trial court erred in dismissing these actions. Id. at 3.

The Supreme Court of Georgia disagreed with the mother, holding that the mother’s petitions for modification of custody, modification of visitation, and her petition for contempt were properly dismissed pursuant to OCGA §19-9-24(b), which “prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order.” Id. at 4. In this case, there was overwhelming evidence that the mother had left the house with the child on scheduled visitation days during the time in which the father was to pick up the child. Id. Under these circumstances, the Supreme Court of Georgia held that the trial court did not err when it dismissed these actions. Id. at 5.

The Supreme Court of Georgia also held that the mother’s petition for modification of child support was properly dismissed due to the “two-year rule.” This rule provides that “[n]o petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent.” OCGA §19-6-15(k)(2). In this case, the mother filed the current petition only 11 months after her previous petition for modification of child support. Id. at 6. Since it had been less than two years, the mother's petition was properly dismissed. Id. at 7.

The Supreme Court of Georgia recently clarified the meaning of "attends school" as it relates to child support obligations. Draughn v. Draughn, S10A1599 (2011). In that case, the parties’ divorce decree stated that the father was to pay child support until the child “reaches the age of eighteen…; provided that if [the child] becomes eighteen years old while enrolled in and attending a secondary school on a full time basis, then the child support shall continue for [said child] until he has graduated from secondary school or reaches the age of twenty, whichever comes first.” Id. Shortly before the child turned 18, he stopped attending private high school and enrolled in an online high school equivalency program, but he failed to complete the online program and did not graduate. Id. at 2. After the father subsequently stopped paying child support, the mother filed a motion for contempt.

An issue addressed by the Supreme Court of Georgia on appeal was whether online schooling satisfies the requirement that the child “attends” a secondary school. The trial court found that online classes were not considered to be “attending school”, but the Supreme Court of Georgia disagreed. (Interestingly, the trial court did not base its contempt judgment on this finding, but the Supreme Court of Georgia was concerned as to whether the trial court’s assertion was correct and, therefore, asked the parties to address the issue so it could rule.)

The Supreme Court of Georgia unequivocally held that “once a child enrolls in approved online courses in an effort to graduate from secondary school, his online attendance constitutes 'attending school' for purposes of extending child support beyond the child’s attainment of the age of majority.” Id. at 4-5. The Court based its ruling on the state government’s endorsement and regulation of online learning opportunities. In doing so, the Court is keeping up with the realities of the digital age and allowing children to participate in alternative forms of education.

The Supreme Court of Georgia recently vacated a child support order that had an unsupported deviation. Stowell v. Huguenard, S10A1700 (2011). In that case, the father filed a motion to modify his child support and alimony obligation after a substantial change in his employment. After a trial, the court reduced the father’s child support obligation to $981.25 per month plus “an annual payment of 25% of any gross commissions or other irregular income received above his $3500 monthly base salary.” Id. at 1. The father appealed, alleging that Georgia law did not support the additional 25%. The Supreme Court of Georgia agreed with the father.

In general, child support is computed using both parents’ gross incomes to get the presumptive amount of child support, and then adding to or subtracting from this amount using deviations that serve the best interests of the child. OCGA §19-6-15. Click here for a more detailed analysis of how child support is computed.

In this case, there was no question that the father’s child support obligation of $981.25 per month was correct given the parties’ respective incomes. However, the child support worksheet “contains no reference to the trial court’s requirement that [the father] pay 25% of any income over his base salary of $3500 every month” as required. Id. at 4. In addition, “the trial court declared on the worksheet that there were no deviations to the presumptive child support amounts.” Id. at 5. The 25% was addressed as a provision in the modification order, but the order lacked “the written findings or special interrogatory findings that an amount of child support other than the amount calculated is reasonably necessary.” Id. The Georgia Supreme Court held that “the trial court’s requirement that [the father] pay 25% of any income above his monthly base salary of $3500 results in a deviation from the presumptive amount of child support set forth by the child support guidelines” and, since this deviation was not support buy written findings or entered on the child support worksheet, the modification order must be vacated. Id. at 11-12.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The final deviation category under the statute is nonspecific deviation. OCGA §19-6-15(i)(3).

The nonspecific deviation category is a catch-all deviation, included to cover specific situations that may not have been contemplated by the Legislature. Specifically, the statute says that a deviation “may be appropriate for reasons in addition to those established under this subsection.” Id. Every family situation is unique and what applies in one family may not apply in another. This deviation gives a parent the ability to ask for a deviation for any reason, but the deviation may only be granted “when the court or the jury finds it is in the best interest of the child.” Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is parenting time. OCGA §19-6-15(i)(2)(K).

Generally, the Georgia child support guidelines are “based upon expenditures for a child in intact households.” OCGA §19-6-15(i)(2)(K)(i). Since, after a divorce, a child is spending time in two households, the presumptive amount of child support may not be appropriate. The court may order a parenting time deviation “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” Id. If the child resides with both parents equally, for example, the parent designated as the non-custodial parent may request a downward deviation in his/her child support obligation so that he/she has sufficient funds to spend on the child during the extended time the child is residing with him/her.

It should be noted that a claim for a parenting time deviation may only be between the custodial and non-custodial parent, not any third parties. OCGA §19-6-15(i)(2)(K)(iii).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is extraordinary expenses. OCGA §19-6-15(i)(2)(J). Generally, child support is based upon “average child expenses for families given the parents’ combined adjusted income and number of children.” Id. The legislature recognized that expenses for children are highly variable and, thus, included this deviation so that these expenses may be considered on a case-by-case basis. Id. If extraordinary expenses are found, they “shall be prorated between the parents by assigning or deducting credit for actual payments” made for these extraordinary expenses. Id.

There are three types of extraordinary expenses that may be considered:

1. Extraordinary educational expenses – Includes tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with education OCGA §19-6-15(i)(2)(J)(i). Expenses must be “appropriate to the parent’s financial abilities and to the lifestyle of the child if the parents and the child were living together.” Id.

2. Special expenses incurred for child rearing – Includes summer camp, music/art lessons, extracurricular activities. The basic child support obligation covers average amounts for these expenses, but “when these special expenses exceed 7 percent of the basic child support obligation, then the additional amount of special expenses shall be considered as a deviation to cover the full amount of the special expenses.” OCGA §19-6-15(i)(2)(J)(ii).

3. Extraordinary medical expenses – Includes medical expenses not covered by insurance that cause extreme economic hardship. OCGA §19-6-15(i)(2)(J)(iii).

Georgia courts can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The ninth deviation category under the statute is Permanency Plan or Foster Care Plan. OCGA §19-6-15(i)(2)(I). This deviation may be considered when the child is in foster care.

Under this deviation, when the child is in the legal custody of a public or private child protection or foster care agency, the court can consider a deviation “if the deviation will assist in accomplishing a permanency plan or foster care plan for the child that has a goal of returning the child to the parent or parents and the parent’s need to establish an adequate household or to otherwise adequately prepare herself or himself for the return of the child clearly justifies a deviation for this purpose.” Id. For example, consider a situation where a child is in the custody of a state agency, and the parent is diligently working two jobs so that he/she can attain a stable residence for the child. The parent may be able to make ends meet, attain a stable residence and accomplish the goals necessary for return of the child to his/her custody, but only if he/she received a downward deviation in child support. In this situation, the court would look at the big picture and end goal, and may grant the deviation under the circumstances.

Georgia courts can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The eighth deviation category under the statute is mortgage. OCGA §19-6-15(i)(2)(H). This deviation may be considered when the noncustodial parent/child support payor is providing a home for the child. Id.

Specifically, the court may consider a deviation where “the noncustodial parent is providing shelter, such as paying the mortgage of the home, or has provided a home at no cost to the custodial parent in which the child resides.” Id. For example, a noncustodial parent may own several properties, and allow the child and custodial parent to live in one of the properties in which the noncustodial parent does not live. Like many of the other deviations, in this situation, the parent is providing a benefit to the child in addition to his or her child support obligation and, therefore, may ask the court to pay less child support. With the mortgage deviation, the court may deviate by allocating the costs of the home between the parents, or decreasing the noncustodial parent’s child support obligation by “an amount equivalent to such [housing] costs." Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The seventh deviation category under the statute is alimony. OCGA §19-6-15(i)(2)(G). This deviation may be considered when a parent is paying court ordered alimony.

Under the child support statute, “actual payments of alimony shall not be considered as a deduction from gross income.” Id. Rather than treating these payments as a deduction, the legislature decided to consider them "as a deviation from the presumptive amount of child support.” Id. Thus, it is not automatic that a parent will get this deviation. Unlike most of the other deviations, the court or jury must make written findings of its consideration of alimony payments as a basis for deviation. This means there must be written findings in the final order supporting the deviation.

The language "actual payments" infers that the alimony payments must actually be made. A court order for alimony payments that is not being complied with will not be sufficient.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The sixth deviation category under the statute is travel expenses. OCGA §19-6-15(i)(2)(F). This deviation is included in the statute to cover a situation where the parents live in different cities or states and visitation related travel expenses are substantial for one or both parents.

If parents live in different cities or states, the logistics for visitation can be a little more complicated. If a plane flight is necessary, and the child is too young to fly alone, one parent must fly the child to and from visitation and, thus, there are round trip airline tickets on each end. Even if the distance can be travelled by car, gas has become increasingly expensive. If travel expenses for visitation are found to be substantial, “the court may order the allocation of such costs…by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason for such move.” Id. The court may be more likely to allow a deviation for a parent who moved due to a job or to be closer to family who could help with child care rather than a parent who moved away from his/her children to be closer to a new girlfriend/boyfriend.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The fifth deviation category under the statute is child and dependent care tax credit. OCGA §19-6-15(i)(2)(E). This deviation is included in the statute consider a deviation where “one of the parents is entitled to the Child and Dependent Care Tax Credit.” Id.

A “dependent” is defined as “[a] natural or legally adopted child of the taxpayer.” OCGA §48-7A-2(3). There is a specific schedule for the child and dependent care tax credit that is based upon income, and the tax credit is basically subtracted from the amount of taxes a person owes. OCGA §48-7A-3(b). A child can only be claimed as a dependent once. Thus, after a divorce, only one parent is entitled to this tax credit for each child. Generally, the parent who has primary physical custody is entitled to this credit, though the parties can negotiate this issue as part of their settlement discussions.

If a parent is entitled to this tax credit, the court “may deviate from the presumptive amount of child support in consideration of such credit.” OCGA §19-6-15(i)(2)(E).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The fourth deviation category under the statute is life insurance. OCGA §19-6-15(i)(2)(D). This deviation is included in the statute to cover a situation in which “either parent has purchased life insurance on the life of either parent or the lives of both parents for the benefit of the child.” Id. The life insurance may be something the parents agreed upon in a settlement agreement, or it may be an order of the court.

This deviation is handled similarly to the “other health related insurance” deviation. If one parent has life insurance on either or both parents for the benefit of the child, the insurance premiums are an expense that parent is paying for the child’s benefit. That parent is, thus, paying child support and paying an additional amount in insurance premiums. The key here is that the life insurance must be on the life of either or both parents AND the child must be the beneficiary of the policy. In this situation, “the court may deviate from the presumptive amount of child support for the cost of such insurance by either adding or subtracting the amount of the premium.” Id.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The third deviation category under the statute is other health related insurance. OCGA §19-6-15(i)(2)(C). This deviation is included in the statute to cover a situation in which a parent “has vision or dental insurance available at a reasonable cost for the child.” Id.

If the non-custodial parent has vision and/or dental insurance for the child, the insurance premiums are an expense that parent is paying for the benefit of the child. That parent is, thus, paying child support and paying an additional amount in insurance premiums. For example, consider a situation in which the presumptive amount of child support is $800 per month, and the noncustodial parent is paying an additional $100 per month in vision/dental insurance premiums for the child. This parent is essentially paying $900 per month for the child. This parent may request a downward child support deviation to make up this difference.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The second deviation category under the statute is low income. OCGA §19-6-15(i)(2)(B). To obtain a deviation under this category, the parent “shall demonstrate no earning capacity or that his or her pro rata share of the presumptive amount of child support would create an extreme economic hardship for such parent.” OCGA §19-6-15(i)(2)(B)(i).

There are certain steps the court or jury must go through in considering a low-income deviation. First, the fact finder must “examine all attributable and excluded sources of income, assets and benefits available to the noncustodial parent” and ensure that the parent's expenses are justified and actually paid by that parent. OCGA §19-6-15(i)(2)(B)(ii). Then, the fact finder shall consider the income, assets, benefits and expenses of each parent, the hardship of a downward deviation on the custodial parent’s household, the needs of each parent and those of the children, and the ability of the noncustodial parent to pay child support. OCGA §19-6-15(i)(2)(B)(iii).

Even if a low-income deviation is granted, the minimum child support for one child “shall not be less than $100.00 per month” and this amount “shall be increased by at least $50.00 for each additional child.” OCGA §19-6-15(i)(2)(B)(v).

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The first deviation category under the statute is high income. OCGA §19-6-15(i)(2)(A). According to the statute, “parents are considered high-income parents if their combined adjusted income exceeds $30,000.00 per month.” Id. For parents who fall into this category, “the court shall set the basic child support obligation at the highest amount allowed by the child support obligation table.” Id. In addition, the court or jury has the option to consider an upward deviation to reach an appropriate award of child support “which is consistent with the best interest of the child.” Id.

In determining a property child support amount for parents who fall into this category, the court will likely consider the lifestyle in which the children lived before the divorce. There is no monetary cap to the child support for parents who fall into this category. The court is only limited by the best interest of the child and the ability of the custodial parent to provide basic necessities.

In Georgia, child support is calculated using both the mother’s and the father’s incomes. O.C.G.A. §19-6-15. Generally, the Court determines the annual gross incomes of both parties (or imputes what it believes the income should be based upon a party’s education and work experience) and runs those numbers through a child support calculator to determine the proper amount of child support. The amount of child support is presumptive and may be rebutted by either party, and court may deviate from the amount determined by the child support calculator. OCGA §19-6-15(i)(1)(A).

In deviating, the court must give primary consideration to the best interest of the child(ren) for whom support is being determined. Id. The court must specifically find “that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined.” OCGA §19-6-15 (i)(1)(B). In addition, no deviation shall be made “which seriously impairs the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child being supported by the order and to provide other basic necessities.” OCGA §19-6-15 (i)(1)(C).

There are eleven deviation categories, all of which will be explained further in future blogs: high income; low income; other health related insurance; life insurance; child and dependent care tax credit; travel expenses; alimony; mortgage; permanency plan or foster care plan; extraordinary expenses; parenting time; and nonspecific deviation.

The Supreme Court of Georgia recently heard an interesting case regarding self-executing child support provisions in a divorce settlement agreement. In Tanner v. Morris, the parties’ divorce settlement agreement gave the mother primary physical custody and stated that the father was to pay child support to the mother for the three minor children “for so long as each child shall remain in high school and while also living at home with Wife prior to beginning college or other secondary education.” Tanner v. Morris, S10A1227 at 2 (2010) (emphasis added).

Shortly after the divorce was final, the parties’ eldest child began living with the father, and the father ceased making child support payments for that child. Id. The middle child subsequently began living with the father, and the father thereafter ceased making child support payments for that child. Id. at 3. When the father refused the mother’s request for return of the middle child to her custody, the mother filed an action for contempt. Id. The trial court held that the father had child support arrearage for both children, but only held him in contempt for the support for the middle child, since the mother never requested return of the eldest child. Id. The father appealed.

The Supreme Court of Georgia found that the language “while also living at home with Wife” made the child support provision self-executing, meaning that the child support was modifiable without a new order from the court. Id. at 4. Since the Court has previously held self-executing provisions such as this one to be lawful, the Court held that “it was error for the trial court to hold [the father] in contempt for relying on the self-executing provision in the parties’ settlement agreement to reduce his child support obligation when he had [the mother’s] consent to allow the children to live with him." Id. Thus, the portion of the trial court’s judgment as to the arrearage for the eldest child was reversed. Id. at 5. The Court also vacated the arrearage amount for the middle child, holding that “the arrearage amount should be from the time [the father] lost [the mother’s] consent to keep the middle child, rather than the full amount awarded by the trial court." Id.

The Georgia Court of Appeals recently reversed a Dekalb County Superior Court’s grant of an upward child support modification. In that case, a mother filed for a modification of her child support obligation against her ex-husband, who had primary physical custody of their children. Harris v. Williams, 304 Ga. App. 390 (2010).

This trial court’s decision to increase the mother’s child support obligation is somewhat unique because the mother asked for a modification, but “did not allege any change in her income or financial status to support a modification of her child support, and [the father] did not file a counterclaim to modify child support.” Id. at 393. Yet the trial court still increased the child support obligation. In order to modify child support, a party must show “a substantial change in either parent’s income and financial status or the needs of the child[ren].” OCGA §19-6-15(k)(1). In this case, there was no evidence that the mother’s income or earning capacity had increased, and nothing was mentioned about any increased needs of the children. Harris, 304 Ga. App. at 394.

Generally, a trial court’s decision on a child support modification is reviewed for an “abuse of discretion” and, if there is evidence to support the trial court’s decision, the appellate court will affirm. Id. at 393. Here, due to the lack of evidence supporting a modification, the Georgia Court of Appeals found that the trial court abused its discretion in increasing the mother’s child support obligation, and reversed that portion of the judgment. Id. at 394.

The Georgia Supreme Court recently reversed a Cobb County Superior Court’s grant of a child support modification. In Herrin v. Herrin, the father had primary physical custody of the children and the mother was paying child support pursuant to a settlement agreement in the parties’ previous divorce action. Herrin v. Herrin, 287 Ga. 427 (2010). The father filed a petition for modification of child support alleging that the mother’s income had increased. Id. at 428. Following a hearing, the superior court found a “substantial and material change in the mother’s income,” basing its ruling, in part, on the mother’s ability to earn additional income. Id.

On appeal, the Georgia Supreme Court stated “[i]n certain circumstances, earning capacity rather than gross income may be used to determine child support, and while a party’s past income is some evidence of earning capacity, it alone is not conclusive, but must be considered along with other relevant circumstances.” Id., quoting Duncan v. Duncan, 262 Ga. 872, 873 (1993). The evidence showed that the mother’s income had actually decreased by the time of the modification hearing, that she had tried to increase her hours and find a higher paying job but was unable to do so, and, though she had a real estate license, “she was unable to pursue a career selling real estate because of the depressed real estate market and her inability to fund out-of-pocket expenses required of a real estate sales agent.” Herrin, 287 Ga. at 429.

Looking at all of these relevant circumstances, the Georgia Supreme Court agreed with the mother and reversed the child support modification, holding that the record from the trial court proceedings “is devoid of evidence that the mother had the ability or means to earn the amount found by the superior court and upon which it based the award of increased child support.” Id. at 427.

Atlanta divorce attorneys are often asked about the form in which child support and/or alimony payments should be made (i.e. cash, check, money order). Obviously, if the order for support specifies the form in which the payments are to be made, then the payor is obligated to make the payments in that format. Often, however, the form of payment is not specified, and it is just up to the payor to ensure that the payee receives the amount due. Since divorce and/or support cases are often contentious, we highly recommend making support payments in a format that can be tracked, such as a check, rather than cash. Even if you are on good terms with your former spouse, we recommend paying with a check. There is a reason that you are no longer married to or in a relationship with the person who you are supporting, and there is always a chance that the your relationship could sour. If you paid your support in cash, there is no paper trail, which could be problematic if the payee alleges that you did not fulfill your support obligations. In these situations, it is always better to have the ability to show documents verifying your payments, if the need arises.

According to the child support guidelines, a parent has a duty to support a minor child “until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA 19-6-15(e). In addition, the court has the discretion to order a parent or parents “to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.” Id. Thus, parents are required to support their children until the children reach 18 years of age, so long as the child is living, and not married or emancipated. However, the court has the option to extend the support obligation. For example, if a child turns 18 in March of his senior year of high school and continues to be enrolled in school, the court can require the child support to continue until the child graduates high school, but not past the age of 20. Parents have the option of including this extension in any settlement agreement as well.

Recently, the Georgia Court of Appeals affirmed the great discretion of the Dekalb County trial court in determining how to handle a father who was in contempt of his child support obligation. Henry v. Beacham, 301 Ga. App. 160 (2009). The father, who was a professional football player, had failed to make child support payments according to the trial court’s temporary order in the case. Id. at 161. In addition, the trial court found that, despite his significant income, he “had encountered financial problems over the course of his professional athletic career.” Id. In light of these facts, the trial court ordered an income deduction order and ordered that the father “fund a $ 250,000 trust, which would be invaded only in the event that [he] failed to pay his obligations.” Id. Any money remaining in the trust would be refunded to the father at the conclusion of his child support obligation.

The father was later found in contempt for failing to fund the trust and appealed, alleging that the trust was not authorized under the child support guidelines. Id. at 162. The Georgia Court of Appeals disagreed, quoting OCGA 19-6-15(c)(2)(B) which states that the trial court is authorized to order the "manner, how often, to whom, and until when the support shall be paid." Id. at 163. The Court further stated that OCGA 19-6-15, “as a whole establishes that the legislature has granted trial courts broad discretion when ruling on child support obligations based on the factors presented to the court at the time of the award.” Id. at 163. Looking at the facts of the case, the Court of Appeals found that the trial court did not abuse its discretion in ordering the father to fund a trust in case he, again, failed to satisfy his child support obligation.

We recently represented a husband in a successful appeal of his dismissed child support modification action. The parties were divorced in 2007 and, according to the final judgment and decree of divorce, the wife was awarded primary custody of the 4 children and the husband was obligated to pay child support. Specifically, the final judgment and decree stated that child support would be “due and payable. . . until such time as the youngest minor child dies, marries, enters the military, attains the age of eighteen, or is otherwise emancipated, whichever first occurs; provided, however, that in the event that any of the minor children turn 18 years of age while still in high school, [Husband's] child support obligations shall continue for that child until such time as the child graduates from high school, but in no event to extend past the child's twentieth birthday.” (emphasis added) Grenevitch v. Grenevitch, S09A0320

When the parties’ eldest child turned 18 years old, the husband filed a Complaint for Modification of Child Support stating that his child support obligation should be modified downward accordingly. The trial court refused to give the husband an opportunity to present evidence of whether the child had turned 18 and graduated from high school and, rather, dismissed the modification action, finding no substantial change warranting a modification and awarded the wife attorney’s fees.

The Supreme Court of Georgia reversed the trial court’s ruling, thereby allowing the husband’s modification action to proceed. The Court looked at the plain language of the divorce decree and found no ambiguity, reasoning that the language shows that the parties contemplated a change in the husband’s child support obligation. Since the parties contemplated a change, the husband should have been able to present evidence showing that a change was warranted. This case shows the importance of the language in your divorce decree. The court is going to look at the actual language of the Order regardless of whether you or your spouse believes you have agreed to something else. If something is important to you, make sure it is in the Order and written very clearly so that it cannot be misinterpreted.

On January 28, 2009, the Georgia Court of Appeals affirmed the decision of the Gwinnett County Juvenile Court regarding the modification of a temporary child support award in a deprivation case. In In the Interest of R.F. (A08A1683), a biological mother’s five children were found to be deprived and removed from her custody, and she was ordered to pay child support to the temporary custodians. She alleged that the trial court erred by treating her motion as one for modification of child support rather than a final child support order, ignoring statutory guidelines in determining the child support amount, and in refusing to modify the previous order.

The Court of Appeals rejected the mother’s argument that her petition was one for a final child support order. The Court questioned whether a juvenile court was the proper jurisdiction for a final child support order, but rested its holding on the fact that there had been no final disposition of the deprivation proceedings and, thus, there could be no final order.

The mother further contended that the trial court erred in treating funds from trust proceeds as her income for purposes of a child support determination. The Court of Appeals easily dismissed this argument, citing to O.C.G.A. §19-6-15(f)(1)(A)(x), which states that both trust income and gifts that consist of cash should be included in calculating gross income for child support purposes.

In addition, the Court of Appeals affirmed the trial court’s ruling in refusing to modify the child support amount. Interestingly, though the mother was trying to modify her support obligation downward, she argued that the substantial change warranting modification was the fact that the children had increased educational expenses. The Court simply stated that “the fact that the needs of the children have increased cannot serve as the basis for decreasing the amount of child support a parent is obligated to pay” and found no other basis for downward modification, based upon the evidence presented at trial.

On November 13, 2008, the Georgia Court of Appeals issued a ruling in Kean v. Marshall (A08A0828) regarding the issue of proper jurisdiction for a child support modification action. The original child support Order was in Alabama, but the Mother sought to record and modify the Order in Georgia pursuant to the Uniform Interstate Family Support Act (UIFSA). The Mother filed her Petition in Henry County, Georgia, contending that the Father resided there and was, therefore, subject to jurisdiction. The trial court denied the Father’s motion to dismiss the action due to lack of jurisdiction and entered an Order modifying the child support amount.

The Court of Appeals reversed this ruling finding that the evidence reflected that the Father was domiciled in Alabama. The Court of Appeals placed emphasis on the fact that the Father “was registered to vote in Alabama, has always paid Alabama income taxes, has an Alabama driver’s license, and cares for his elderly father in Alabama.” There was also extensive evidence that the Father considered Alabama to be his home and intended to remain there, despite his military placement. Though the Mother argued that he resided in Georgia because he spent time there in the military and entered into an apartment lease while he was there, the Court of Appeals specifically found that the term “reside” does not mean “domiciled,” and that a person’s domicile is the place where the person resides with an intent to remain permanently or for an indefinite period of time. In reversing the trial court’s ruling, the Court of Appeals held that “[t]he proper focus is whether the record contained evidence that [the Father] took any action to change his residence from Alabama to Georgia, and the record is devoid of evidence showing any such action.”

Interestingly, in this case, the Order modifying child support was based upon an agreement by the parties with the Father reserving his right to appeal based on lack of jurisdiction.

According to O.C.G.A. § 19-6-28.1(b), the licensing agencies in Georgia can revoke or suspend someone’s license if he or she is in arrears behind in paying child support for a period of more than sixty days. Not only can the Georgia Department of Driver Services suspend someone’s drivers license, but the person’s professional license, such as a license to practice medicine. A business license as well as hunting and fishing licenses can also be suspended. Also, if the non-paying parent applies for the license, the application can be denied based solely on the fact that he or she is in arrears with child support. Georgia is not the first state to implement such a drastic law to punish parents who are in arrears. For years, the states of Ohio, Tennessee, and Arizona, have suspended drivers licenses because someone owes back owed child support to their ex-spouse.

When this law comes into effect in July, there are going to be those who support the law and who oppose it. Some people may feel that it is unfair because if they don’t have a driver’s license, then they cannot get to work to earn the money to pay child support. Prior to revoking or suspending someone’s license, the court will notify the person who is in arrears. If he or she is able and willing to cooperate with the court to make their child support obligation current and to provide evidence to the court, then the court will consider this and may not revoke or suspend his or her license according to O.C.G.A. § 19-6-28.1(b). This law is meant only to punish those who do not plan on becoming current with their child support obligations. Once the court has contacted the person and has determined that he or she is not going to pay the back owed child support, then the court will enter into an order and contact the licensing agency for the person’s failure to pay child support. If the licensing agency revokes or suspends his or her license, then the licensing agency will contact the court according to O.C.G.A. §19-6-28.1(b).

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In Georgia, child support orders may be modified upon a showing of a substantial change in either parent’s income or financial status, or in the needs of the children. O.C.G.A. §19-6-15(k)(1). A substantial change could include the loss of a job, decrease in income, increase in income, increase in the medical needs of the children, increase in the educational needs of the children (i.e. private school, tutoring, etc.), or decrease in the needs of the children (i.e. child no longer needs day care). This substantial change must occur between the date of the divorce decree or previous child support action and the filing of the new petition for modification of child support.

Generally, you can only bring a child support modification action once every two years so keep this in mind when deciding whether or not to file a modification. The two year limitation does not apply from the date of your divorce decree, but rather from the date of your last modification. In other words, you could bring a modification action within a few months of your divorce decree, but you would have to wait two years after that modification action before you could come back to court again. There are three exceptions to this two year rule: (1) If the non-custodial parent has failed to exercise court ordered visitation; (2) if the non-custodial parent has exercised more visitation than provided in the court order; or (3) the modification action is based upon an involuntary loss of income. O.C.G.A. §19-6-15(k)(2)(A) – (C).

Any modification of these orders must be done prospectively. This means that the Court can only modify these orders from the date of the filing of a petition. The Court cannot retroactively modify court orders from the date of the substantial change.

The Georgia Court of Appeals has entered a decision on November 13, 2008 in regards to the effective date of a modification of child support award. In Hampton v Nesbit(A08A1887) the court of appeals held that the Judge Merck, DeKalb Superior Court, abused its discretion in ordering a delay in the upward modification of child support until such time as the past due child support payments have been made.

In that action, the father had filed a petition seeking joint physical and legal custody of the minor child. The mother counterclaimed for contempt due to father’s past due child support payments. After hearing evidence, the trial court entered an income deduction order against the father which ordered the father to repay the arrearages at a rate of $300 per month beginning October 1, 2007 in order to avoid jail time and increased the amount of child support from $525 per month to $800 per month starting October 1, 2008 (at which point the trial court determined that the father should be caught up with his arrearages). The mother appealed indicating that the trial court could not delay the effective date of the upward award of modification.

The Court of Appeals reversed the trial court and held that the trial court did not have the right to fully delay implementation of the upward modification. Specifically, the Court of Appeals focused its attention upon O.C.G.A. § 19-6-15(k)(3)(B) which provides:

If there is a difference of 30 percent or more between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to two years with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

Accordingly, the Court of Appeals specifically held that while the trial court did not have authority to completely delay the modification it could have phased in the modification had the statutory requirements been met. Of note, the Court of Appeals also held that past due child support cannot be considered when reducing or increasing income under the child support calculations.

With the state of the economy in the United States today, it is not uncommon to hear that more and more people are losing their jobs and having difficulty finding new jobs that pay as well as their previous ones. While this is obviously having a huge effect on our economy as a whole, it is also creating new difficulties with individual’s child support obligations.

If you find yourself in this type of position, it is important to learn what to do, and not to do. The biggest mistake we see people make is that they don’t do anything. They stop paying child support and do not file anything with the court seeking assistance with this type of situation. This is the quickest way to find yourself in a contempt action and facing possible jail time.

Instead, if you are no longer able to pay child support or alimony because of your changed financial status, you can and should file a modification action with the court. This is the only way to legally change your support obligation. The court will not honor any verbal agreements that you and your spouse may make.

Continue reading "Modification of Child Support and/or Alimony After the Loss of a Job in Georgia" »

The Georgia Supreme Court issued an order today in Pineres v. George, S08A0773, which has several implications for Georgia law. First, it held that a trial judge has no authority in a contempt proceeding to modify the obligations imposed by a divorce decree. Second, the Georgia Supreme Court held that medical expenses constitute a form a child support.

Of note in this case, the modification being sought was in regards to the psychological expenses for the minor child and there had previously been a petition for modification of child support made less than two years ago. Because Georgia law prohibits a modification of child support less than two years after an order on a previous modification petition by the same spouse, it upheld an awarded of frivolous litigation fees under O.C.G.A. § 9-15-14 against the spouse that was now seeking to modify the amount of medical expenses that they had to pay.