WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 16, 2015
In the Court of Appeals of Georgia
A15A0127. JACKSON v. SANDERS.
DILLARD, Judge.
Doug Jackson filed a petition for modification of custody, seeking additional
parenting time with his then 11-year-old son. The child’s mother, Lisa Sanders,
opposed the petition and filed a counterclaim for past-due child support. After a
bench trial, the trial court denied Jackson’s petition, awarded Sanders past-due child
support, increased the amount of Jackson’s monthly child-support payment, issued
a new parenting plan, awarded attorney fees to Sanders, and ordered Jackson to pay
a supersedeas bond in satisfaction of the court’s judgment.
Jackson appeals, arguing that the trial court erred by (1) imputing an annual
income to him that was significantly higher than his actual income; (2) finding that
he owed Sanders past-due child support; (3) increasing his child-support obligation
above the amount dictated by the relevant guidelines; (4) reducing his parenting time
with his son when neither party requested such a reduction; (5) granting attorney fees
to Sanders as the prevailing party; and (6) ordering him to pay a $60,000 supersedeas
bond. For the reasons set forth infra, we reverse in part; vacate in part; and remand
for further proceedings consistent with this opinion.
The record shows that Jackson and Sanders divorced in Florida on November
13, 2001, when their son, N. J., was less than a year old, and the final judgment
dissolving their marriage (the “2001 Judgment”) incorporated an agreement that they
reached regarding custody and child support. Specifically, Jackson and Sanders each
agreed to move to Atlanta on or before March 17, 2003, and live within a reasonable
driving distance of each other so that they could co-parent N. J. on a rotating custody
schedule. As to physical custody, the 2001 Judgment provided that, when the parties
moved to Atlanta and N. J. was at least two years old, the child would spend two days
with one parent, two days with the other parent, and then three days with the first
parent, alternating this rotation with each parent on subsequent weeks. However, if
either Jackson or Sanders did not reside in Atlanta by the agreed-upon date, the other
parent would have primary physical custody of the child. And as to child support, the
2001 Judgment provided that Jackson would pay Sanders $1,005 per month.
2
Shortly before March 17, 2003, Sanders moved to Atlanta, but Jackson did not
relocate from Florida to Atlanta until three years later. During that three-year period,
Jackson lived in Tampa, but he visited Atlanta weekly to have parenting time with N.
J.
In 2005, Jackson filed an action against Sanders in Florida, seeking to enforce
the rotating parenting schedule set forth in the 2001 Judgment. But that action was
dismissed for lack of jurisdiction, and shortly thereafter, Sanders filed an action in
Cobb County, Georgia for modification of custody. In that proceeding, Jackson and
Sanders were able to successfully resolve their disputes through mediation, and on
August 28, 2007, the trial court approved their new custody agreement (the “2007
Agreement”).
Under the 2007 Agreement (which remained in effect until the modification
proceeding underlying this appeal), Jackson and Sanders shared joint legal and
physical custody of N. J. Specifically, as to physical custody, the parties agreed that
N. J. would be with Jackson every other weekend, starting from Friday after school
until the next Monday morning. In addition, Jackson would care for N. J. every
weekday afternoon after school, and N. J. would also have an overnight visit with
Jackson once per week to coincide with N. J.’s involvement in certain sports. The
3
2007 Agreement also provided that Jackson and Sanders, subject to certain
limitations, could select two non-consecutive weeks each year or “floating weeks” to
vacation with N. J., and in the summer, the parties would alternate weeks with their
son. Jackson’s monthly child-support obligation remained the same under the 2007
Agreement.
Jackson and Sanders adhered to the foregoing parenting schedule for the next
several years, but on September 6, 2012, Jackson filed the instant petition for
modification of custody, asserting that, since the time of the 2007 modification
proceeding, there had been a material change in circumstances that warranted such
a change in custody. Specifically, he asserted that, due to his son’s age, new school,
and Sanders’s move to a different home, a change in physical custody or parenting
time was necessary so that he and Sanders could “continue to share physical custody
effectively.” Sanders answered, opposing the petition. Subsequently, Sanders filed
an amended answer and filed a counterclaim against Jackson, seeking $7,035 in past-
due child support. Jackson then amended his petition, asserting that he had satisfied
his child-support obligation with Sanders’s consent by paying N. J.’s private-school
tuition. Thereafter, Sanders filed an amended counterclaim, seeking $14,070 in
outstanding child support.
4
Ultimately, the trial court held a bench trial on Jackson’s petition for
modification of custody, during which it heard testimony from Jackson, Sanders, a
court-appointed guardian ad litem (“GAL”), and a child psychologist hired by
Jackson. Thereafter, the court issued an order, finding that Jackson owed Sanders
$27,135 in past-due child support, finding that Jackson failed to meet his burden of
showing that a change in custody was in N. J.’s best interests,1 granting primary
physical custody to Sanders, and increasing Jackson’s child-support obligation from
$1,005 to $3,994 per month. The court reserved ruling on Sanders’s request for
attorney fees.
In addition, the court issued a new parenting schedule, which altered the
custody arrangement delineated in the 2007 Agreement. Specifically, the court
ordered that Jackson would have physical custody of N. J. on the first and third
weekends of the month and that those visits would begin on Friday after school and
last until Sunday at 6:00 p.m. The court also ordered that Jackson would have N. J.
1
At the close of Jackson’s case, Sanders moved for a directed verdict on his
request for a modification of custody, arguing that he failed to meet his burden of
showing that there had been a material change in circumstances. The trial court
reserved ruling on the motion, but later granted it in the written order. Nevertheless,
the court modified the parenting schedule set forth in the 2007 Agreement in several
respects as discussed infra.
5
overnight for one night on the weeks when he did not have N. J. the following
weekend. Additionally, the court ordered that the parties would have equal time with
their son in the summer, with N. J. alternating between them each week. Lastly, the
court eliminated the optional two-week “floating” period of parenting time that had
been included in the 2007 Agreement.
After the court issued its order, Sanders filed a motion for a supersedeas bond,
as permitted by OCGA § 5-6-46, requesting that Jackson post a $100,000 bond in
satisfaction of the court’s judgment. Jackson filed a response, opposing the motion,
but the trial court granted it and ordered Jackson to post a $60,000 bond. Also, in a
separate order, the trial court awarded Sanders $24,387.71 in attorney fees. This
appeal follows.
1. As a preliminary matter, Sanders claims that Jackson did not file a valid
notice of appeal from the trial court’s order granting her motion for a supersedeas
bond because, instead of filing a second notice of appeal after that order was entered,
he merely amended his first notice of appeal as to the underlying judgment.2 In this
2
Sanders also contends that we should not consider Jackson’s amended
appellate brief because he did not move this Court for leave to file it, but she is
mistaken. Jackson did file such a motion, and it was granted in an order dated October
10, 2014.
6
regard, we have held that, on appeal, we “may consider orders that were entered prior
to or contemporaneously with the judgment being appealed, but judgments cannot be
considered on appeal if rendered subsequent to the judgment appealed from.”3 Thus,
when a supersedeas-bond order is entered after an appellant files a notice of appeal
from a prior judgment, we lack jurisdiction to consider claims regarding that order
unless he or she files a second notice of appeal.4
Nevertheless, in the case sub judice, Jackson did file a timely notice of appeal
after the trial court issued the supersedeas-bond order, and the fact that he styled it
as an “amended notice of appeal” is of no consequence. In relevant part, OCGA § 5-
6-48 provides:
Where it is apparent from the notice of appeal, the record, the
enumeration of errors, or any combination of the foregoing, what
judgment or judgments were appealed from or what errors are sought to
be asserted upon appeal, the appeal shall be considered in accordance
therewith notwithstanding that the notice of appeal fails to specify
3
Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 331 (6)
(765 SE2d 536) (2014) (citation and punctuation omitted); see also Norman v. Ault,
287 Ga. 324, 331 (6) (695 SE2d 633) (2010); OCGA § 5-6-34 (d).
4
See Jaycee Atlanta Dev., LLC, 330 Ga. App. at 331 (6).
7
definitely the judgment appealed from or that the enumeration of errors
fails to enumerate clearly the errors sought to be reviewed.5
Here, regardless of how Jackson’s amended notice of appeal was styled, it expressly
noted that he intended to appeal the trial court’s August 11, 2014 judgment regarding
“the necessity of a supersedeas bond.” As a result, Jackson filed a valid notice of
appeal with respect to that order, and we have jurisdiction to consider it.6
2. Turning to the merits of Jackson’s claims, he first argues that, in imposing
an upward modification of his child-support obligation, the trial court erred when it
applied OCGA § 19-6-15 (f) (4) (B) and imputed an annual income to him that was
significantly higher than his actual income based on an erroneous finding that he
5
OCGA § 5-6-48 (f).
6
We acknowledge that, traditionally, when notices of appeal are filed as to a
trial court’s judgment and its subsequent order imposing a supersedeas bond, those
appeals are sent to this Court separately and docketed as two different appeals. And
typically, under such circumstances, this Court will ultimately consolidate the appeals
to be decided together. See e.g. Gaslowitz v. Stabilis Fund I, LP, 331 Ga. App. 152
(770 SE2d 245) (2015); Muhammad v. Power Lending, LLC, 311 Ga. App. 347 (715
SE2d 734) (2011). But here, the trial court sent Jackson’s appeals from both orders
to this Court to be docketed as a single appeal presumably because he styled his
second notice of appeal as an “amended” notice. Regardless, Jackson nonetheless
satisfied his obligation to file a separate notice of appeal as to the supersedeas-bond
order, and for the reasons set forth supra, we have jurisdiction to review that order.
8
presented no reliable evidence of his income.7 We disagree, but for the reasons set
forth infra, we vacate the child-support award and remand for further proceedings
consistent with this opinion.
To begin with, we note that, in the appellate review of a bench trial, this Court
will not set aside the trial court’s factual findings “unless they are clearly erroneous,”
and we properly give “due deference to the opportunity of the trial court to judge the
credibility of the witnesses.”8 Further, we will not disturb an upward modification of
7
We note that, in this proceeding, Sanders never filed a counterclaim seeking
an upward modification of child support. In the pre-trial order, Sanders indicated for
the first time that she was seeking such a modification, and at trial, the parties
litigated that issue without objection. Thus, under OCGA § 9-11-15, Sanders’s
request for modification of child support was properly treated as if it had been raised
in the pleadings. See OCGA § 9-11-15 (b) (“When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”). Compare Smith v. Smith, 174
Ga. App. 903, 904-05 (3) (332 SE2d 41) (1985) (holding, in a
modification-of-visitation-rights case in which the pleadings did not include a request
for modification of child support, that, because there was no transcript of the evidence
presented below, this Court must assume that the evidence amended the parties’
pleadings and authorized the trial court’s verdict with regard to child-support
payments) with Lawrence v. Day, 247 Ga. 474, 474-75 (277 SE2d 35) (1981)
(holding, in a modification-of-custody case, that a trial court erred in imposing an
upward revision of child support sua sponte when no petition for modification of
child support was filed, no such relief was requested, and there was no evidence
adduced at the hearing below to support a finding of change in the father’s income).
8
Autrey v. Autrey, 288 Ga. 283, 284-85 (2) (702 SE2d 878) (2010)
(punctuation omitted).
9
child support if there is any evidence to support it.9 With this deferential standard of
review in mind, we will now consider Jackson’s specific claim of error.
In Georgia, determining each parent’s monthly gross income is “the first step
that a court must take in calculating child support under [our] child[-]support
guidelines.”10 And the child-support guidelines define gross income as “all income
from any source . . .,whether earned or unearned,”11 including, inter alia, income from
self-employment.12 Further,
[i]ncome from self-employment includes income from, but not limited
to, business operations . . . and rental properties, less ordinary and
reasonable expenses necessary to produce such income. Income from
self-employment, rent, royalties, proprietorship of a business, or joint
ownership of a partnership, limited liability company, or closely held
corporation is defined as gross receipts minus ordinary and reasonable
expenses required for self-employment or business operations . . . .13
9
See, e.g., Dyals v. Dyals, 281 Ga. 894, 895 (1) (644 SE2d 138) (2007).
10
Appling v. Tatum, 295 Ga. App. 78, 80 (2) (670 SE2d 795) (2008).
11
OCGA § 19-6-15 (f) (1) (A).
12
OCGA § 19-6-15 (f) (1) (A) (iii).
13
OCGA § 19-6-15 (f) (1) (B).
10
Generally, income and expenses from self-employment or operation of a
business should be “carefully reviewed by the court or the jury to determine an
appropriate level of gross income available to the parent to satisfy a child support
obligation.”14 But when cases with established orders are
reviewed for modification and a parent fails to produce reliable evidence
of income, such as tax returns for prior years, check stubs, or other
information for determining current ability to pay child support or
ability to pay child support in prior years, and the court or jury has no
other reliable evidence of such parent’s income or income potential, the
court or jury may increase the child support of the parent failing or
refusing to produce evidence of income by an increment of at least 10
percent per year of such parent’s gross income for each year since the
final child support order was entered or last modified and shall calculate
the basic child support obligation using the increased amount as such
parent’s gross income.15
In the case sub judice, the parties presented testimony and other evidence,
including Domestic Relations Financial Affidavits (“DRFAs”), to establish their
respective gross incomes such that the trial court could determine whether to impose
an upward modification of Jackson’s monthly child-support obligation, which had
14
Id.
15
OCGA § 19-6-15 (f) (4) (B).
11
remained $1,005 per month since the 2001 Judgment was entered. It was undisputed
that, at the time of their divorce, Jackson had an annual income of $250,000, while
Sanders earned $85,000 per year.
At the time of trial, Sanders’s 2013 W-2 reflected that she had an annual salary
of $256,817.48, but she testified that her income would be reduced by $50,000 in
2014 because she would be foregoing certain bonuses. Jackson, who was employed
by and owned a 50% partnership interest in a marketing company, submitted his K-1
Schedules (or pass-through partnership income) for 2011 and 2012. These documents
reflect that Jackson received $193,321 and $172,053 in partnership income for 2011
and 2012, respectively. However, Jackson testified that, at the time of trial in March
2014, he had not yet received his K-1 Schedule for 2013.16 Nevertheless, his DRFA
reflected that his monthly gross income was $13,541 (or $162,492 per year). Jackson
testified that he wanted his accountant to testify regarding his finances, and he knew
that Sanders had subpoenaed his accountant to do so. But when he learned about the
subpoena, he told his accountant that they had already provided the court with all of
the necessary documentation, and thereafter, his accountant declined to testify.
16
Jackson did provide an “employee earnings record” for 2013 (generated by
his company), reflecting that he earned $162,500 in partnership income.
12
Ultimately, the trial court determined that Jackson had not been “forthcoming
with proof of his income and did not provide sufficient information to determine his
gross income.” And based on this finding, the trial court calculated Jackson’s income
under OCGA § 19-6-15 (f) (4) (B), applying a four-percent increase to his salary at
the time of the 2001 Judgment for each year since that judgment was entered. In
doing so, the trial court imputed an annual salary of $380,000 to Jackson, and based
partly on this annual income, the court increased his monthly child-support payment
from $1,005 to $3,994.
Jackson now argues that the trial court erred in finding that he presented no
reliable evidence of his income when he provided his K-1 schedules from two prior
years because tax returns are specifically identified as reliable evidence by OCGA §
19-6-15 (f) (4) (B). He ignores, however, that his “gross income” for purposes of
calculating child support includes, but is not limited to, the income reflected on his
K-1 schedules.17 Indeed, as previously noted, gross income is defined broadly under
the child-support guidelines, and it includes income “from any source . . . whether
17
See Simmons v. Simmons, 288 Ga. 670, 670 (1) (706 SE2d 456) (2011)
(holding that trial court did not err in calculating a husband’s child support payment
when it included K-1 income in his annual income); Appling, 295 Ga. App. at 80-81
(2) (holding that trial court did not abuse its discretion when it included K-1 income
in its calculation of child support).
13
earned or unearned.”18 And here, the evidence presented below shows that Jackson
had other self-employment income in addition to the income reflected on his K-1
schedules, but based on his testimony and the other evidence presented at trial, it was
difficult for the court to discern the amount of that income.19
For example, Jackson testified that he received income from two rental
properties, but the record is devoid of any documentation such as leases, copies of
checks, or bank records to substantiate the amount of that income. In fact, Jackson
admitted that he failed to include the income he received from his rental properties
18
OCGA § 19-6-15 (f) (1) (A).
19
The dissent states that the evidence at trial included “bank records,” and that,
in her brief, Sanders claimed to have presented Jackson’s payment history to one of
his company’s largest clients. While a review of the record and the parties’ briefs
indicates that such evidence may have been produced during discovery, no such
evidence is included in the record or in the exhibits presented to the trial court, and
we do not consider facts or evidence that were not before the trial court. See Atkinson
v. City of Atlanta, 325 Ga. App. 70, 72 n.3 (752 SE2d 130) (2013) (“[W]e do not take
evidence from the briefs of parties, we do not get evidence from outside the record,
and we do not accept assertions of fact or evidence which were not before the trial
court.” (punctuation omitted)). Moreover, while the parties reference this evidence
in their appellate briefs, they provide no record citations to support those references,
and “it is not the function of this Court to cull the record on behalf of a party in search
of instances of error.” Fortson v. Brown, 302 Ga. App. 89, 90 (1) (690 SE2d 239)
(2010) (punctuation omitted).
14
in his DRFA.20 Jackson further admitted that, while he owed $15,000 on a car loan,
he did not include that information on the portion of the DFRA that required him to
list “payments to creditors.” Further, Jackson testified that his DFRA mistakenly
indicated that he paid child support for children other than N. J.
The evidence presented below also shows that, in 2013, Jackson’s business
made approximately $2.7 million, that it had approximately $2.4 million in expenses,
and that, out of the $300,000 of remaining funds, his company made $245,000 in
payments to a corporate credit card. And while Jackson testified that the credit card
was used solely for business purposes, he presented no financial documentation or
itemization of the charges to show that he did not use the card for personal expenses.
Similarly, Jackson also testified that, although there were checks written out of his
company’s corporate accounts for amounts sometimes as large as $60,000, he did not
produce copies of those checks to show that they were for business, rather than
personal, expenses. In this regard, we have held that, in calculating a parent’s income,
allowable business expenses may be included in a parent’s gross monthly income
20
See OCGA § 19-6-15 (f) (1) (B) (defining self-employment income as
including, inter alia, income from rental properties).
15
“upon a showing that the expenses personally benefitted the obligor.”21 But based on
the evidence adduced at trial, it was unclear whether Jackson received a personal
benefit from the $245,000 paid to the corporate credit card or from certain business
checks. As a result, the trial court could not determine the amount of his “gross
receipts minus ordinary and reasonable expenses required for self-employment or
business operations.”22
In light of the foregoing, the trial court found that Jackson’s testimony that he
made approximately $13,000 per month was simply not credible. And as previously
noted, we give due deference to the trial court’s opportunity to judge the credibility
of witnesses.23 Moreover, we are not persuaded by Jackson’s argument that OCGA
§ 19-6-15 (f) (4) (B) is inapplicable merely because he provided two tax documents,
21
Lewis v. Scruggs, 261 Ga. App. 573, 575 (2) (583 SE2d 240) (2003)
(punctuation omitted); see Simmons, 288 Ga. at 671 (2) (holding that certain fringe
benefits received through husband’s company could be included in his gross income
such as the company’s monthly car payment for a car that he used, the company’s
payment of his cell-phone bill, and his use of a company-issued credit card for meals
and certain social activities).
22
OCGA § 19-6-15 (f) (1) (B).
23
See Autrey, 288 Ga. at 284-85 (2).
16
which are expressly considered reliable under that statutory provision. As our
Supreme Court has explained,
[w]hen we consider the meaning of a statutory provision, we do not read
it in isolation, but rather, we read it in the context of the other statutory
provisions of which it is a part. All statutes relating to the same subject
matter are to be construed together, and harmonized wherever possible.24
And here, while Jackson’s K-1s may be reliable evidence of a portion of his income,
the trial court’s finding that those documents were not reliable evidence of his gross
income, as broadly defined in OCGA § 19-6-15 (f) (1) (A),25 is not wholly
unsupported by the evidence.26 Indeed, it was undisputed that Jackson had other
sources of income in addition to the pass-through partnership income reflected on his
24
Hartley v. Agnes Scott Coll., 295 Ga. 458, 462 (2) (b) (759 SE2d 857) (2014)
(punctuation omitted); accord Cavalier Convenience, Inc. v. Sarvis, 305 Ga. App.
141, 146 (699 SE2d 104) (2010); see In re L.T., 325 Ga. App. 590, 591-92 (754 SE2d
380) (2014) (explaining that in analyzing the meaning of a statute, “we must afford
the statutory text its plain and ordinary meaning, [and] consider the text contextually”
(punctuation and footnote omitted)); Holcomb v. Long, 329 Ga. App. 515, 517-18 (1)
(765 SE2d 687) (2014) (same).
25
See OCGA 19-6-15 (f) (1) (A) (defining gross income for purposes of
calculating child support as “all income from any source . . . whether earned or
unearned” (emphasis supplied)).
26
See Carden v. Warren, 269 Ga. App. 275, 276 (1) (a) (603 SE2d 769) (2004)
(noting that a trial court’s factual findings will not be disturbed on appeal unless they
are “wholly unsupported by the evidence” (punctuation omitted)).
17
K-1s, including income from his rental properties, which is included as income under
OCGA § 19-6-15 (f) (1) (B). Furthermore, as to the other evidence presented
regarding Jackson’s income, such as his own testimony and his DRFA, we reiterate
that it was for the trial court to determine whether Jackson’s own representations
regarding his income were credible, and we will not disturb the trial court’s factual
findings in this regard if there is any evidence to support them.27 And as detailed
supra, Jackson admitted to several inaccuracies and omissions in his DRFA.
In sum, given the lack of evidentiary support for Jackson’s testimony regarding
his business’s finances and income from his rental properties; the inaccuracies and
omissions in his DRFA; and his seemingly disingenuous testimony that, although he
wanted his accountant to testify regarding his finances, he nevertheless told his
accountant that such testimony was unnecessary, we simply cannot say that the trial
court abused its discretion in finding that Jackson failed to produce reliable evidence
of his gross income and thus, calculating his gross income under OCGA § 19-6-15
(f) (4) (B).28
27
See Patel v. Patel, 285 Ga. 391, 391 (1) (a) (677 SE2d 114) (2009).
28
See OCGA § 19-6-15 (f) (4) (B); Brogdon v. Brogdon, 290 Ga. 618, 619-20
(1), (2) (723 SE2d 421) (2012) (affirming the trial court’s determination that a parent,
who claimed to make $2,916.67 per month, had a gross monthly income of $12,000
18
Nevertheless, once the trial court exercised its discretion and chose to apply
OCGA § 19-6-15 (f) (4) (B), it failed to calculate Jackson’s income as mandated by
when the parent had ownership interests in two companies and a residential repair
partnership, he made large purchases and cash withdrawals, and he used his business
account to pay a substantial amount of personal expenses); Autrey, 288 Ga. at 285 (2)
(affirming trial court’s finding that husband’s gross income was higher than the
$150,000 annual income claimed in his DRFA when there was evidence that he
owned a profitable home-building company and the parties owned several residential
lots and a multi-million dollar home); Banciu v. Banciu, 282 Ga. 616, 617-18 (1) (652
SE2d 552) (2007) (affirming the trial court’s finding that a husband, who claimed to
make $48,000, had a gross income of at least $90,000 per year based, in part, on his
ownership interest in a profitable company, his ownership of rental properties, and
his history of high spending); see also Vereen v. Vereen, 284 Ga. 755, 756 (1) (670
SE2d 402) (2008) (“[I]n the absence of any mathematical formula, fact-finders are
given a wide latitude in fixing the amount of alimony and child support under the
evidence as disclosed by the record and all the facts and circumstances of the case.”
(punctuation omitted)). We note that the dissent contends that, instead of
“misapplying” OCGA § 19-6-15 (f) (4) (B), the trial court should have simply used
its discretion in fixing the amount of child support based on the evidence before it.
As evidenced by the cases cited herein, which were all decided prior to the enactment
of OCGA § 19-6-15 (f) (4) (B), we agree that trial courts have been given broad
discretion to impute a higher salary to a parent when the evidence suggests that the
parent has misrepresented his or her actual gross income. And we reference these
opinions because currently, there are no Georgia cases specifically addressing the
application of OCGA § 19-6-15 (f) (4) (B), and these opinions are the most analogous
to the instant case in demonstrating that a trial court may exercise its discretion in
determining a parent’s salary when evidence suggests that a parent is misrepresenting
his or her income. Nevertheless, now that OCGA § 19-6-15 (4) (B) has been enacted,
trial courts have the additional option of applying the formula set forth in that statute
in cases where, as here, the court finds that the parent has failed to present reliable
evidence of his or her gross income as defined under OCGA § 19-6-15 (f) (1) (A).
19
that statute. Specifically, OCGA § 19-6-15 (f) (4) (B) provides that, when a parent
fails to produce reliable evidence of income, the court
may increase the child support of the parent failing or refusing to
produce evidence of income by an increment of at least 10 percent per
year of such parent’s gross income for each year since the final child
support order was entered or last modified and shall calculate the basic
child support obligation using the increased amount as such parent’s
gross income.29
And as noted by Jackson on appeal, the trial court erred by only applying a four
percent incremental increase to calculate his child-support obligation. Suffice it to
say, the application of OCGA § 19-6-15 (f) (4) (B) undoubtedly results in an
extremely harsh penalty for parents who fail to produce reliable evidence of their
incomes. But when the language of a statute is “plain and susceptible to only one
natural and reasonable construction, courts must construe the statute accordingly.”30
And OCGA § 19-6-15 (f) (4) (B) plainly provides that when a parent fails to produce
reliable evidence of his or her gross income, the trial court has the discretion to
determine whether such a Draconian penalty is warranted. Thus, while the trial court
29
(emphasis supplied).
30
Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013)
(punctuation omitted).
20
did not abuse its discretion in finding that Jackson failed to present reliable evidence
of his gross income, we nevertheless vacate the trial court’s child-support award and
remand for the court to consider whether the application of OCGA § 19-6-15 (f) (4)
(B) is still warranted, and if so, to recalculate Jackson’s child-support obligation
using the formula set forth in that statute.
3. Jackson next argues that the trial court erred in finding that he owed $27,135
in past-due child support. We agree.
The undisputed evidence shows that, from the time of the 2001 Judgment until
July 2012, Jackson paid $1,005 per month to Sanders in child support. However, in
July 2012, Jackson and Sanders agreed that, instead of paying child support directly
to Sanders, Jackson would pay an equivalent amount to N. J.’s new private school for
Sanders’s half of the tuition. Both parties testified that this was their agreement, and
Jackson presented an email from July 2012, in which Sanders expressly consented to
this arrangement. In fact, Sanders even signed a printed copy of the email with the
inscription, “okay to pay $1,005 directly to [school] for August, September, and
October.” Sanders also refunded three months of child support to Jackson for the
months of May, June, and July of 2012 to reimburse him for her half of tuition
payments that he had already made. At trial, Sanders did not dispute that she agreed
21
to this financial arrangement or that Jackson had adhered to it since July 2012, but
she testified that she told Jackson that she would only agree to this alternative child-
support arrangement if he would agree not to “take [her] back to court.”
Despite Sanders’s concession that she and Jackson entered into this alternative
child-support arrangement, the trial court ruled in Sanders’s favor as to her
counterclaim for unpaid child support, finding that “the parties [could not] modify
child support without a court order.” Thus, the court ordered Jackson to pay $27,135
in past-due child support for the months when he made payments to N. J.’s school
instead of to Sanders.31 The trial court was indeed correct that, “[w]hile parties may
enter into an agreement concerning modification of child support, the agreement
becomes an enforceable agreement only when made the order of the court.”32
31
Jackson correctly notes that it was undisputed that he did not begin paying
child support to N. J.’s private school until May 2012, and the trial court erroneously
found that he began doing so in January of that year. But because, as discussed infra,
the trial court erred in awarding any past-due child support to Sanders, this error by
the trial court is moot.
32
Pearson v. Pearson, 265 Ga. 100, 100 (454 SE2d 124) (1995) (citation
omitted) (emphasis in original); see also Robertson v. Robertson, 266 Ga. 516, 517
(1) (467 SE2d 556) (1996) (“It is well-settled that a modification action under OCGA
§ 19-6-19 is the sole means by which a child support award included in a divorce
decree may be modified. While the parties are free to enter into an agreement
purporting to modify the child[-]support obligation, that agreement becomes
enforceable only when incorporated in an order of the court . . . .” (citation omitted)).
22
Nevertheless, our Supreme Court has recognized that there are certain equitable
exceptions to that general rule.33 And included among these “equitable exceptions”
are
situations where the mother has consented to the father’s voluntary
expenditures as an alternative to his child[-]support obligation, or where
the father has been in substantial compliance with . . . the divorce
decree, for example, where he has discontinued child support payments
while he had the care and custody of the children and supported them at
the mother’s request.34
Here, Jackson and Sanders did not modify the amount of Jackson’s child-
support obligation as set forth in the 2001 Judgment. Instead, they merely agreed that
Jackson would pay an equivalent amount for Sanders’s half of N. J.’s private-school
33
See Daniel v. Daniel, 239 Ga. 466, 468 (2) (238 SE2d 108) (1977) (“Several
jurisdictions, including many which support the above general rule [that parents may
not modify a child-support obligation without approval from the court], have held that
a father may be given credit if equity would so dictate under the particular
circumstances involved, provided that such an allowance would not do an injustice
to the mother.”).
34
Id. (citations omitted); see also Skinner v. Skinner, 252 Ga. 512, 514 (2) (314
SE2d 897) (1984) (distinguishing Daniel, but acknowledging that “credit for the
father’s voluntary expenditures consented to by the mother as alternatives to child
support, or excusal for nonpayment of support obligations where the mother has
requested that the father have custody of the children and he supported them during
such period, may be appropriate so that the father is not required to pay child support
twice when there is no resulting unfairness to the mother or children”).
23
tuition as an alternative to paying her directly. And our Supreme Court has held that
such an agreement was valid under nearly identical circumstances.35 Thus, the trial
court erred in ordering Jackson to pay $27,135 in past due child support, and we
reverse its judgment in this respect.36
4. Jackson also argues that the trial court erred in deviating upward from the
presumptive child-support amount without making sufficient written findings of fact
and without sufficient evidentiary support. And while we disagree with Jackson that
the high-income deviation was impermissible, we do agree that the trial court erred
by failing to make the requisite written findings of fact.
In granting Sanders’s request for an increase in Jackson’s monthly child-
support obligation, the trial court imposed a “high-income deviation” of $1,100. The
child-support guidelines provide that, for parents with a combined adjusted income
35
See Nagle v. Epstein, 241 Ga. 612, 612 (247 SE2d 102) (1978) (affirming the
trial court’s judgment that the husband was not in contempt for failing to pay past-due
child support when he testified that the parties agreed that the wife would accept the
his payment of their son’s private-school tuition in lieu of an equivalent amount of
past-due child support and the wife did not testify otherwise).
36
See id.; but see Crist v. Crist, 243 Ga. 796, 796 (256 SE2d 780) (1979)
(affirming the trial court’s order requiring father to pay past-due child support when,
under an informal agreement between the parties, the father ceased making child-
support payments during months when the minor child lived with him).
24
of up to $30,000 per month37 and only one child, the presumptive amount of child
support is $2,236 per month.38 But the guidelines also provide that, when the
combined adjusted income of the parents exceeds $30,000 per month, “the court . .
. may consider upward deviation to attain an appropriate award of child support for
high-income parents which is consistent with the best interest of the child.”39
Thus, in this case, the court was authorized to consider an upward deviation
from the presumptive child-support amount because Jackson and Sanders have a
combined monthly income of over $30,000.40 However, the trial court failed to make
certain mandatory findings of fact in its written order to support its decision that such
a deviation was warranted. Indeed, OCGA § 19-6-15 (c) (2) (E) provides that, if a
37
The trial court found that Jackson and Sanders had gross monthly incomes
of $31,666.66 and $17,166.66, respectively. We acknowledge Jackson’s argument
that the high-income deviation was impermissible because the trial court erred in
calculating his income under OCGA § 19-6-15 (f) (4) (B), but as explained in
Division 2 supra, the trial court did not err in that respect.
38
See OCGA § 19-6-15 (o).
39
OCGA § 19-6-15 (i) (2) (A).
40
See id.; see also Henry v. Beacham, 301 Ga. App. 160, 163 (2) (a) (686 SE2d
892) (2009) (noting that the child-support guidelines list specific examples in which
a deviation may be appropriate, including when the parents have a calculated monthly
income higher than $30,000, which is the highest range treated in the guidelines
income table).
25
trial court determines that a deviation from the presumptive child support amount is
applicable, the court must make written findings of fact that must include:
(i) The reasons the court . . . deviated from the presumptive amount of
child support;
(ii) The amount of child support that would have been required under
this Code section if the presumptive amount of child support had not
been rebutted; and
(iii) A finding that states how the court’s . . . application of the child
support guidelines would be unjust or inappropriate considering the
relative ability of each parent to provide support and how the best
interest of the child who is subject to the child support determination is
served by deviation from the presumptive amount of child support.41
In its written order, the trial court noted that it was imposing a high-income
deviation of $1,100 based on its finding “that it [was] in the minor child’s best
interest so that the child may have the same standard of living at each parent’s home.”
And our Supreme Court has recognized that “[a] fundamental purpose of the child-
41
OCGA § 19-6-15 (c) (2) (E); see Fladger v. Fladger, 296 Ga. 145, 147 (2)
(765 SE2d 354) (2014) (explaining that if a trial court determines that a deviation
from the presumptive child-support amount is applicable, the court must include
written findings of fact under OCGA § 19-6-15 (c) (2) (E)); Wallace v. Wallace, 296
Ga. 307, 308 (1) (766 SE2d 452) (2014) (same).
26
support guidelines is to achieve the state policy of affording to children of unmarried
parents, to the extent possible, the same economic standard of living enjoyed by
children living in intact families consisting of parents with similar financial means.”42
Thus, in finding that an upward deviation was in N. J.’s best interests so that he could
enjoy the same standard of living with each parent, the trial court satisfied the
statutory requirements that it set forth its reason for deviating from the presumptive
child-support amount and that it explain why such a deviation is in the child’s best
interests.43
However, the trial court’s order failed to set forth the presumptive child-
support amount that would have been required under the guidelines absent the
upward deviation, as required by OCGA § 19-6-15 (c) (2) (E) (ii),44 or to explain how
“the child[-]support guidelines would be unjust or inappropriate considering the
relative ability of each parent to provide support,” as required by OCGA § 19-6-15
42
Fladger, 296 Ga. at 147 (2), quoting OCGA 19-6-15 (c) (1).
43
See OCGA § 19-6-15 (c) (2) (E) (i) and (iii).
44
See Urquhart v. Urquhart, 272 Ga. 548, 550 (2) (533 SE2d 80) (2000)
(“OCGA § 19-6-15 (b) provides guidelines for the computation of the child support
award and the guidelines are the expression of the legislative will regarding the
calculation of child support and must be considered by any court setting child
support.” (punctuation omitted) (emphasis supplied)).
27
(c) (2) (E) (iii). Presumably, the trial court found that the application of the guidelines
would be unjust or inappropriate because Jackson had a substantially higher income
than Sanders, but when reviewing deviations from the guidelines the General
Assembly has enacted for child-support determinations, we are not at liberty to “rely
on implications or our own assumptions.”45 Rather, the trial court’s written findings
must “connect the dots.”46
And here, because the trial court failed to make all of the mandatory written
findings in support of the child-support award, which we have already determined in
Division 2 supra must be vacated, we remand the case for the court to make such
findings. Specifically, on remand, the court, if it is to apply a high-income deviation,
must make written findings that (1) set forth the presumptive amount of child support
applicable in this case; (2) articulate why the application of the child-support
guidelines would be unjust or inappropriate considering the relative ability of each
45
Fladger, 296 Ga. at 149 (2).
46
Id.
28
parent to provide support; and (3) restate why an upward deviation is in N. J.’s best
interests.47
5. Next, Jackson argues that the trial court erred in sua sponte reducing his
parenting time with his son. Again, we agree.
At the outset, we note that a trial court’s decision regarding a change in
custody/visitation will be upheld on appeal unless “it is shown that the court clearly
abused its discretion.”48 Furthermore, a trial court faced with a petition for
modification of child custody is “charged with exercising its discretion to determine
what is in the child’s best interest.”49 And where there is any evidence to support the
47
See id. (reversing a child-support award and remanding for the trial court to
make the necessary written findings of fact to “explain how the application of the
presumptive child[-]support amount would be unjust or inappropriate considering the
relative ability of each parent to provide support and how the best interest of the
children is served by the deviation” (emphasis in original)); Strunk v. Strunk, 294 Ga.
280, 282 (2) (754 SE2d 1) (2013) (“Because the trial court failed to make all of the
necessary findings of fact required by the statute, we reverse the judgment related to
this issue and remand for the trial court to redetermine the child support award and
support any . . . deviation with the mandatory written findings.”); Brogdon, 290 Ga.
at 623 (“We have described the written findings [required under OCGA § 19-6-15 (c)
(2) (E)] as ‘mandatory’ and held that, when any of the required findings are omitted,
we have no choice but to reverse the trial court’s judgment and remand the case to the
trial court for further proceedings.” (punctuation omitted)).
48
Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013).
49
Id. (punctuation omitted).
29
trial court’s ruling, “a reviewing court cannot say there was an abuse of discretion.”50
With these guiding principles in mind, we turn now to Jackson’s specific claim of
error.
As noted supra, Jackson filed his initial petition for modification of custody,
seeking additional parenting time with N. J. and asserting that there had been a
material change in circumstances with regard to the child’s age, his new school, and
Sanders’s move to a home farther away from Jackson. Sanders opposed this petition,
and in the pre-trial order, she indicated that she wanted the 2007 Agreement to remain
unchanged, except that she be granted primary physical custody. At trial, the evidence
showed that, when N. J. was in elementary school, Jackson had parenting time with
him every weekday after school. But when N. J. started middle school in 2012,
Jackson’s parenting time on weekdays decreased due to N. J.’s increased involvement
in school-related and extra-curricular activities. The court-appointed GAL testified
that this decrease in Jackson’s parenting time was the natural result of N. J. getting
older and that it was not possible to modify the parenting schedule to account for the
loss of that time. As to Sanders’s move, there was testimony that she and Jackson
initially lived within walking distance of each other, but at some point, Sanders
50
Id.
30
moved five miles farther away. Jackson contends that this move also reduced his time
with N. J.
In its written order, the trial court found that Jackson failed to meet his burden
of showing a material change in circumstances to warrant a modification of custody,
and it granted a directed verdict in favor of Sanders as to Jackson’s petition.
Nevertheless, the trial court also granted primary physical custody to Sanders, and
issued a revised custody schedule, which reduced Jackson’s parenting with his son.
Specifically, under the 2007 Agreement, Jackson had custody of N. J. every other
weekend from Friday after school until the next Monday morning, but under the new
parenting plan, Jackson would have custody of N. J. the first and third weekends of
every month from Friday after school until Sunday at 6:00 p.m. Thus, the court
eliminated the Sunday overnight visit on Jackson’s weekends with N. J., as well as
any weekend visits that he might have had during a month with five weekends.
Further, under the 2007 Agreement, N. J. had an overnight visit with Jackson every
week, but under the new parenting plan, he only had such visits every other week.
In addition, based on the GAL’s recommendation, the court eliminated the two
“floating weeks” per year that were included in the 2007 Agreement. However, the
court did not follow GAL’s recommendation that Jackson be given additional time
31
with N. J. in the summer or that N. J.’s weekends with Jackson last until Monday
morning (as opposed to Sunday night).
Jackson contends that the trial court erred when it modified the parties’ then-
current parenting schedule sua sponte and reduced his parenting time with N. J. In
this regard, the Supreme Court of Georgia has long held that, “[w]here an award of
custody of a minor child has been duly made, it is conclusive on the parties unless
there are new and material conditions and circumstances substantially affecting the
interest and welfare of the child.”51 And to authorize a change of custody, the court
must find “(a) that there has been a change in conditions affecting the child[], and (b)
that the welfare of the minor[] requires a modification of the original judgment.”52
Finally, although the trial court is given wide discretion in such cases, it is,
nevertheless, “restricted to the evidence, and hence [it] is unauthorized to change
51
Bagley v. Bagley, 226 Ga. 742, 743 (177 SE2d 255) (1970); accord Danner
v. Robertson, 221 Ga. 516, 517 (1) (145 SE2d 554) (1965); Adams v. Heffernan, 217
Ga. 404, 405 (122 SE2d 735) (1961).
52
Danner, 221 Ga. at 517 (1) (punctuation omitted); see Fox v. Korucu, 315
Ga. App. 851, 854 (729 SE2d 16) (2012) (“A trial court is authorized to modify a
custody award upon a showing of new and material changes in the conditions and
circumstances substantially affecting the interest and welfare of the child. The proof
must show both a change in conditions and an adverse effect on the child.”
(punctuation omitted) (emphasis in original)).
32
custody where there is no evidence to show new and material conditions that thus
affect the welfare of the child[].”53
In this case, the trial court expressly found that there had been no material
change in circumstances to justify a change in custody, and it made no finding that
N. J.’s welfare required such a modification. Additionally, it was undisputed that N.
J. has a great relationship with both parents, and there was no evidence presented to
suggest that a reduction in Jackson’s parenting time was in the child’s best interests.
In fact, the GAL even recommended that the trial court increase Jackson’s parenting
time in the summer since it was not possible to do so during the school year.
In sum, because there had been no material change in circumstances and no
evidence suggested N. J.’s welfare required a modification of custody, the trial court
was not authorized to modify the 2007 custody order by altering the parties’ parenting
53
Danner, 221 Ga. at 517 (1) (punctuation omitted); accord Daniel v. Daniel,
250 Ga. App. 482, 484 (2) (552 SE2d 479) (2001) .
33
schedule and awarding primary physical custody to Sanders.54 Accordingly, we
reverse the trial court’s judgment in this respect as well.
6. Jackson next argues that the trial court erred in awarding $24,384.71 in
attorney fees to Sanders as the “prevailing party.” In light of our holdings herein
(which reverse several portions of the trial court’s judgment), we must vacate the trial
court’s fee award and remand the case so that the court may reconsider whether
Sanders is still entitled to attorney fees as the prevailing party, and if so, in what
amount.
We also note that the appellate record, as it stands now, is devoid of any
testimony from Sanders’s attorney, billing records, or any other evidence to support
the amount of the fee award. In this case, attorney fees were awarded under OCGA
54
See Fox, 315 Ga. App. at 854 (noting that a modification of a prior custody
order requires proof of a change in conditions and an adverse affect on the child);
Weickert v. Weickert, 268 Ga. App. 624, 627 (1) (602 SE2d 337) (2004) (noting that
“a change of custody may be granted only if a new and material change in
circumstances affects the child” (punctuation omitted) (emphasis supplied)).
34
§§ 19-9-355 and 19-6-15,56 and there appears to be no Georgia case addressing the
requirement that an attorney-fee award must be reasonable in the context of those
recently enacted statutes. Nevertheless, the plain language of OCGA § 19-9-3 (g)
provides that the award must be “reasonable,”57 and in reviewing fee awards in other
contexts, we have long held that “an award of attorney fees and costs under Georgia
law can only be authorized if there is sufficient proof of the actual costs and the
reasonableness of those costs.”58 Indeed, as a general rule, “[e]vidence must be
presented from which the trial court can determine what portion of the total amount
55
OCGA § 19-9-3 (g) (“[T]he judge may order reasonable attorney’s fees and
expenses of litigation, experts, and the child’s guardian ad litem and other costs of the
child custody action and pretrial proceedings to be paid by the parties in proportions
and at times determined by the judge.”).
56
OCGA 19-6-15 (k) (5) (“In proceedings for the modification of a child[-
]support award pursuant to the provisions of this Code section, the court may award
attorney’s fees, costs, and expenses of litigation to the prevailing party as the interests
of justice may require.”).
57
See supra note 55.
58
Reynolds v. Clark, 322 Ga. App. 788, 790 (1) (746 SE2d 266) (2013)
(punctuation omitted) (reviewing an award of attorney fees granted pursuant to
OCGA § 19-15-14); accord Dave Lucas Co. v. Lewis, 293 Ga. App. 288, 293 (5) (666
SE2d 576) (2008); see Daniel v. Smith, 266 Ga. App. 637, 638 (1), 640 (2) (597 SE2d
432) (2004) (reviewing the grant of attorney fees pursuant to OCGA § 13-6-11and
noting that an award of fees is unauthorized if the party seeking those fees fails to
prove the actual costs of his attorneys and the reasonableness of those costs).
35
of attorney time and litigation expenses was attributable to the pursuit or defense of
claims for which attorney fees are recoverable and what portion of the attorney’s time
was spent on matters that are not recoverable.”59 Moreover, while OCGA §§ 19-9-360
and 19-6-1561 provide the trial court with broad discretion in determining when to
award attorney fees, nothing in the language of those statutes suggests that, in the
context of a custody-modification proceeding, a trial court may award an arbitrary
amount of attorney fees based solely on speculation or guesswork.62
Thus, to the extent that, upon remand, the trial court finds that an award of
attorney fees to Sanders is still warranted, it is instructed to articulate the evidentiary
basis for the amount awarded.63
59
Reynolds, 322 Ga. App. at 791 (1).
60
See supra note 55.
61
See supra note 56.
62
See Leon v. Monterrey Mexican Rest. of Wise, Inc., 305 Ga. App. 222, 228
(3) (699 SE2d 423) (2010) (noting, in the context of reviewing the denial of a request
for attorney fees under OCGA § 13-6-11, that “[i]t is well established in this State
that an award of attorney fees cannot be based upon guesswork or speculation”).
63
At the conclusion of trial, the trial court instructed the parties to submit briefs
regarding Sanders’s request for attorney fees within 10 days. However, those briefs
and any evidence pertaining to them were omitted from the record on appeal, and thus
the appellate record is devoid of any evidence regarding the attorney fees that Sanders
incurred during this litigation.
36
7. Lastly, Jackson argues that the trial court erred in requiring him to pay a
$60,000 supersedeas bond in satisfaction of past-due and future child-support
payments. Once again, we agree.
OCGA § 5-6-46 (a) provides, in relevant part:
In civil cases . . . upon motion by the appellee, made in the trial court
before or after the appeal is docketed in the appellate court, the trial
court shall require that supersedeas bond or other form of security be
given with such surety and in such amount as the court may require,
conditioned for the satisfaction of the judgment in full, together with
costs, interest, and damages for delay if the appeal is found to be
frivolous.
Here, upon Sanders’s motion, the trial court ordered Jackson to post a $60,000
supersedeas bond in satisfaction of the court’s “judgment in full, together with costs,
and interests, and damages for delay, if for any reason the appeal is dismissed or is
found to be frivolous.” However, the only monetary judgment against Jackson was
the court’s award of $27,135 in past-due child support to Sanders. And given our
holding in Division 3 supra (i.e., that the trial court erred in finding that Jackson owes
any past-due child support), the court likewise erred in ordering a Jackson to pay a
supersedeas bond in satisfaction of that judgment. Thus, we reverse the trial court’s
grant of Sanders’s motion for a supersedeas bond.
37
For all of the foregoing reasons, we reverse the trial court’s award of past-due
child support, its sua sponte modification of the parties’ then-current custody
agreement, and its order requiring Jackson to pay a supersedeas bond; and vacate the
child-support award, as well the award of attorney fees to Sanders. We remand the
case for the trial court to (1) reconsider its application of OCGA § 19-6-15 (f) (4) (B)
in calculating Jackson’s gross income in light of the statutory formula noted supra,
(2) make the requisite written findings to support its imposition of the high-income
deviation if, upon remand, it still chooses to grant an upward modification of child
support that imposes such a deviation, and (3) reconsider Sanders’s request for
attorney fees at the appropriate time.
Given the lack of record evidence regarding the attorney fees that Sanders
incurred, the court may wish to hold a hearing on that matter, and if the court
determines that a fee award is still warranted, it is instructed to explain the
evidentiary basis for any amount awarded.
Judgment reversed in part; vacated in part; and case remanded with direction.
Ray, McMillian, JJ., concur. Ellington, P. J., concurs in judgment only. Barnes, P.
J., Phipps, P. J., and McFadden, J., concur in part and dissent in part.
38
A15A0127. JACKSON v. SANDERS.
MCFADDEN, Judge, concurring in part and dissenting in part.
I concur in all of the majority opinion except Division 2, from which I
respectfully dissent. In Division 2 the majority affirms the trial court’s decision to
invoke OCGA § 19-6-15 (f) (4) (B) to calculate Jackson’s income in this case. The
plain language of that code section indicates that it applies only in cases where “a
parent fails to produce reliable evidence of income . . . and the court or jury has no
other reliable evidence of such parent’s income[.]” OCGA § 19-6-15 (f) (4) (B). In
that respect it is similar to the preceding subsection, OCGA § 19-6-15 (f) (4) (A),
which authorizes trial courts and juries to “imput[e] gross income based on a 40 hour
workweek at minimum wage” when “a parent fails to produce reliable evidence of
income, such as tax returns for prior years, check stubs, or other information for
determining current ability to pay child support or ability to pay child support in prior
years, and the court or jury has no other reliable evidence of such parent’s income or
income potential.” The express intent of the legislature is to reserve the arbitrary –
and in the case of subsection (B), draconian – calculations authorized by those
provisions for exceptional cases where there is no more principled way to establish
a parent’s income.
This is not such a case. Here there is at least some reliable evidence of income.
Jackson presented his own testimony, a Domestic Relations Financial Affidavit, bank
records,1 and tax documents as evidence of his income. And Sanders notes in her brief
that she presented records showing Jackson’s current payment history from one of his
1
While the majority notes that such bank records are not included in the record
before us, the trial transcript shows that Jackson was cross-examined about his
business’ bank statements and the trial court expressly referenced his “business bank
records” in its final order. Sanders also refers to Jackson’s business bank records in
her appellate brief.
2
largest clients to show his business earnings at trial.2 Thus, there was some reliable
evidence of Jackson’s income introduced at trial. Compare Brogdon v. Brogdon, 290
Ga. 618, 620 (3) (723 SE2d 421) (2012) (where evidence showed wife had no regular
employment, trial court did not abuse its discretion in finding that it had no reliable
evidence of wife’s income).
Of course the trial court, as factfinder, properly pointed out inconsistencies and
deficiencies in the evidence of Jackson’s income. Mearidy v. State, 287 Ga. 312, 313
(696 SE2d 61) (2010) (“it was for the factfinder to resolve any conflicts or
inconsistencies in the evidence”). But inconsistencies and deficiencies like those the
trial court found here are arguably present in almost any case where a parent’s income
is vigorously litigated – particularly where a parent is a business owner. For example
the trial court criticizes Jackson for objecting to discovery from his accountant. But
that objection was resolved through the discovery dispute resolution procedure set out
in the Civil Practice Act. And there are legitimate reasons a 50% owner of a small
business would want to limit disclosure of its financial information. The trial court
speculates that Jackson’s rental income – which is disclosed in his financial affidavit
2
In her brief, Sanders plainly states that she obtained such records by subpoena
and used them “to assist the court in understanding the father’s business earnings at
trial.”
3
– might have exceeded the amount disclosed and criticizes him for not better
documenting the disclosure. It is, of course, the province of the factfinder to resolve
questions raised by such arguable inconsistencies and deficiencies. But the answers
to those questions should go simply to the weight and sufficiency of the evidence
supporting or contradicting Jackson’s claims. They do not constitute a complete
absence of reliable evidence of income which would trigger the severe remedy of
OCGA § 19-6-15 (f) (4) (B) – a mandatory finding that a parent’s income increased
by “at least 10 percent per year.” Reading subsection (B) to be applicable on the basis
of the inconsistences and deficiencies like those identified here, is not a fair reading.
Moreover, as the majority recognizes, the trial court here further committed
legal error under the very statute it purported to apply by failing to impose the
minimum 10 percent increase, and instead imposing an arbitrary and unfounded
increase of four percent per year.
The trial court did not need OCGA § 19-6-15 (f) (4) (B). Factfinders have wide
latitude in fixing the amount of child support, using their experience as enlightened
persons in judging the amount necessary for support under the evidence as disclosed
by the record and all the facts and circumstances of the case. Farrish v. Farrish, 279
Ga. 551, 552 (615 SE2d 510) (2005). Instead of this misapplication of subsection (B)
4
as a basis for determining Jackson’s income, the trial court should have simply used
the income evidence submitted by the parties to make that determination and then fix
the amount of child support based on that finding. See also Wood v. Wood, 283 Ga.
8, 9 (1) (b) (655 SE2d 611) (2008) (income level attributed to husband supported by
evidence provided to trial court).
Accordingly, unlike the majority, I conclude that the trial court abused its
discretion in relying on OCGA § 19-6-15 (f) (4) (B) as a basis for determining
Jackson’s income, and thus on remand the trial court should not be allowed to
recalculate his income under that code section. I therefore would reverse the trial
court’s ruling and remand for the court to make a finding as to Jackson’s income
based on the evidence presented at trial.
I am authorized to state that Presiding Judge Barnes and Presiding Judge
Phipps join in this opinion concurring in part and dissenting in part.
5