Moore v. Moore.

THIRD DIVISION
ELLINGTON, P. J.,
BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

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

June 1, 2018

In the Court of Appeals of Georgia
A18A0137. MOORE v. MOORE.

ELLINGTON, Presiding Judge.

Thaddeus L. Moore (“Appellant”) and Heather C. Moore (“Appellee”) divorced

in 2009. The divorce decree, through the settlement agreement incorporated therein,

provided that the parties share joint legal custody of their minor child and that

Appellee have primary physical custody of the child subject to Appellant’s visitation

rights. The parties also agreed that Appellant pay child support. In July 2016,

Appellee filed a petition for modification of child custody.

The modification petition shows that the parties’ child had expressed the desire

to live with Appellee and that she be allowed to visit and communicate with

Appellant only at the child’s discretion. Appellant agreed at the petition hearing that

the child, then 14 years old, could choose when she would visit him. In its final order,
the trial court awarded sole legal and physical custody of the child to Appellee and

ordered that the child would decide whether to visit with Appellant. The trial court

also modified the Appellant’s child support obligations. On appeal, Appellant

contends that the trial court erred: (i) in awarding sole legal custody of the child to

Appellee, (ii) in failing to incorporate a parenting plan into its final order, (iii) in

modifying his child support obligation without making a finding that there had been

a substantial change in the financial circumstances of the parties or a change in the

needs of the child, (iv) in not incorporating the child support work sheets into the

final order, and (v) ordering that he pay a percentage of his future bonuses as child

support.1 For the reasons that follow, we affirm in part, vacate in part, and remand the

case with direction.

1. Appellant contends that the trial court erred in granting Appellee sole legal

custody of the parties’ minor child. He argues that, while he was put on notice of the

issue of physical custody, legal custody of the child was not raised by the pleadings,

nor was the issue of legal custody tried by the express or implied consent of the

parties. Therefore, he maintains, he was never afforded an opportunity to address the

1
Although she was represented by counsel below, Appellee is now pro se and
has not filed a response brief.

2
matter of legal custody by introducing evidence concerning his ability to assist in

making legal decisions for the minor child. “[W]hen parents dispute the issue of

custody of a child, a trial court has very broad discretion, looking always to the best

interest of the child.” (Citation and punctuation omitted.) Autrey v. Autrey, 288 Ga.

283, 285 (4) (702 SE2d 878) (2010).

In the modification petition, Appellee asked the court, among other things, to

“grant primary legal and primary physical custody of the minor child to the

[Appellee].” (Emphasis supplied.). In his testimony, Appellant acknowledged that he

understood from the petition that “one-hundred-percent full custody of” the child was

at issue. The record shows that Appellant had the opportunity to assert defenses to

Appellee’s request that she be awarded legal custody of the child. Compare OCGA

§ 9-11-54 (c) (1) (“[T]he court shall not give the successful party relief, though he

may be entitled to it, where the propriety of the relief was not litigated and the

opposing party had no opportunity to assert defenses to such relief.”) (emphasis

supplied). Accordingly, he shows no error.

2. Appellant claims that the trial court erred in failing to incorporate a

parenting plan into its final custody order. OCGA § 19-9-1 (a) provides, in applicable

part, that “[t]he final order in any legal action involving the custody of a child,

3
including modification actions, shall incorporate a permanent parenting plan as

further set forth in this Code section[.]” (Emphasis supplied.). However, “a separate

court order exclusively devoted to a parenting plan shall not be required.” Id.

In this case, although Appellant’s visitation is subject to the election of the

child, and the trial court awarded Appellee sole legal and physical custody of the

child, Appellant’s parental rights have not been terminated. “[T]he parenting plan

must include several details beyond custody and visitation, including, among many

things, the rights of both parents to access the child’s records and information related

to education, health, health insurance, extracurricular activities, and religious

communications. OCGA § 19-9-1 (b) (1) (D).” (Footnote omitted.) Williams v.

Williams, 301 Ga. 218, 224 (3) (800 SE2d 282) (2017). As the trial court failed to

incorporate a parenting plan in the final order, the judgment must be vacated in part

and the case remanded for compliance with the requirements of OCGA § 19-9-1. See

Williams v. Williams, 301 Ga. at 224 (3).

3. Appellant contends that the trial court erred in modifying his child support

obligation without making a finding that there had been a substantial change in the

financial circumstances of the parties or a change in the needs of the child. OCGA §

19-6-15 (k) (1) contemplates that “a parent shall not have the right to petition for

4
modification of the child support award . . . unless there is a substantial change in

either parent’s income and financial status or the needs of the child.” As the Supreme

Court of Georgia has explained, “the showing of a change in the parent’s financial

status or a change in the needs of the child is a threshold requirement in a

modification action.” (Citation and punctuation omitted.) Wetherington v.

Wetherington, 291 Ga. 722, 725 (2) (a) (732 SE2d 433) (2012). See Wingard v. Paris,

270 Ga. 439, 439 (511 SE2d 167) (1999) (accord).

Appellee’s petition asked that she be awarded “permanent child support in

compliance with Georgia Statutory Guidelines.” Under the settlement agreement

incorporated into the divorce decree, the parties agreed that Appellee would accept

a monthly payment from Appellant in the amount of $400 notwithstanding that the

child support worksheets showed that the non-custodial parent should pay child

support in the amount of $746.83. Thus, the petition’s request that Appellant be

ordered to pay monthly child support consistently with the statutory guidelines

required that the trial court modify Appellant’s obligations under the divorce decree.

At the outset of the petition hearing, Appellant’s attorney announced that “we are

consenting to what [Appellee] requested and her prayers in her petition.” The parties

then presented evidence pertinent to the amount of support. Appellant’s trial counsel

5
later represented that “the parties have never had an with issue paying child support.

It’s just now the calculations of that.”

In light of the foregoing, Appellant consented to the modification of his

monthly child support obligation, although he disputed the amount that he should be

required to pay under the statutory guidelines. Because Appellant acquiesced to a

modification of his child support obligations, he waived any objection to whether the

threshold requirements for such a modification were otherwise met. See, e.g.,

Mullins-Leholm v. Evans, 322 Ga. App. 869, 872 (3) (746 SE2d 628) (2013) (mother

waived objection to trial court’s modification of her visitation rights by conceding

that the trial court could change visitation).

4. Appellant claims that the trial court erred in not attaching the child support

worksheets to the final order. We agree.

OCGA § 19-6-15 provides a process for calculating child support which,
pursuant to subsection (m), requires the necessary information used in
that calculation to be recorded on the child support worksheet.
Deviations from the presumptive amount of child support, as provided
by OCGA § 19-6-15 (i), are to be set out in Schedule E of the
worksheet. OCGA § 19-6-15 (b) (8). If the factfinder deviates from the
presumptive amount of child support, certain specific findings of fact
must be set forth in the child support order, including the reasons for the
deviation, the amount of child support that would have been required if

6
 no deviation had been applied, how the application of the presumptive
amount of child support 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 the subject of the child support determination
is served by a deviation from the presumptive amount. See OCGA §
19-6-15 (c) (2) (E) and (i) (1) (B).

(Citation, punctuation and footnote omitted.) Black v. Ferlingere, 333 Ga. App. 789,

791 (2) (777 SE2d 268) (2015). “In addition to including the aforementioned specific

findings of fact, the trial court must attach a completed child support worksheet and

Schedule E to the child support order, incorporate those documents by reference into

the order, or enter the pertinent information from those documents directly into the

order itself.” (Citations omitted.) Id. See OCGA § 19-6-15 (m) (1).2

The trial court’s order references two child support worksheets purportedly

attached as Exhibit “A” and Exhibit “B,” but the worksheets were not attached to the

final order. Worksheets and schedules corresponding with the trial court’s order were

later filed, apparently by Appellee’s counsel, but were not incorporated into the trial

2
After the entry of the trial court’s final order, effective July 1, 2017, OCGA
§ 19-6-15 (m) (1) now requires, in pertinent part, that “[t]he child support worksheets
and any schedule that was prepared for the purpose of calculating the amount of child
support shall be attached to the final court order or judgment[.]” Ga. L. 2017, p. 646.

7
court’s order, and it is unclear if the trial court even had the worksheets and schedules

in its possession when the final order was entered. Pertinent information that would

otherwise be found on the worksheets and Schedule E, including that pertaining to

deviations and special circumstances, is not included within the order itself. As

discussed in Division 5, infra, Appellant has challenged the child support award as

constituting an improper deviation from the presumptive amount of support.

Accordingly, “we cannot avoid the conclusion that a remand is necessary due to the

lack of necessary findings being actually included in the Final Order here.” Demmons

v. Wilson-Demmons, 293 Ga. 349, 350 (1) (745 SE2d 645) (2013). See Wallace v.

Wallace, 296 Ga. 307, 310 (1) (766 SE2d 452) (2014) (reversing and remanding

because the trial court failed to make the required findings). The trial court’s award

of child support is therefore vacated and the case remanded with direction that the

worksheets and appropriate schedules be attached to the order.

5. The trial court’s order provided that Appellant pay $1,048 per month in child

support beginning April 2017. Beginning January 2018, the trial court ordered that

Appellant pay $1,020 per month in support. In addition to the monthly child support

amount, the trial court ordered that “[Appellant] shall pay to [Appellee] thirty-five

8
percent (35%) of any and all bonuses received during each calender year above the

amount of $3,500.00 received in any bonus.”

Appellant contends that the trial court’s order constitutes an improper future

modification of support. See, e. g., Howard v. Howard, 262 Ga. 144, 145 (1) (414

SE2d 203) (1992) (finder of fact may not base modification on speculative future

circumstances). He also contends that, in light of Stowell v. Huguenard, 288 Ga. 628,

632 (706 SE2d 419) (2011),3 the trial court erred in making an unsupported deviation

from the presumptive amount of support by requiring that he pay a percentage of

future bonuses in addition to the monthly child support amount. Appellant

acknowledges that it is unclear what amount of income the trial court considered

when calculating child support in the absence of a finding in the final order or in

3
As relevant here, Stowell v. Huguenard provides:
If a trial court believes that [a provision providing for payment of a
percentage of nonrecurring income] is necessary to arrive at a fair child
support amount, then it must treat it as a deviation, enter it on the Child
Support Schedule E — Deviations section of the child support
worksheet, and support it with the required findings of fact and
application of the best interest of the child standard. OCGA § 19-6-15
(b) (8).

(Punctuation omitted.) Stowell v. Huguenard, 288 Ga. at 632.

9
incorporated child support worksheets. Nor are the trial court’s findings as to

deviations from the presumptive amount of child support before us. Accordingly, it

is premature for this Court to address these claims of error. See Demmons v.

Wilson-Demmons, 293 Ga. at 350 (2).

Judgment affirmed in part and vacated in part, and case remanded with

direction. Bethel, J., and Senior Appellate Judge Herbert E. Phipps concur.

10