Dingle v. Carter.

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.

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

April 24, 2019

In the Court of Appeals of Georgia
A19A0081. DINGLE v. CARTER.

RICKMAN, Judge.

Dhane Brooks Dingle (“the mother”) and Horacio Carter (“the father”) filed

cross-motions for contempt alleging violations of certain provisions of the trial

court’s order governing custody of their minor child, child support, and attorney fees.

Following a hearing, the trial court held the mother in contempt and made several

other rulings. On appeal, the mother contends that the trial court erred by holding her

in contempt for failing to notify the father of her deployment overseas, holding that

the trial court lacked the authority to determine if the mother’s attorney fee award was

a dischargeable debt of the father’s bankruptcy filing, abating a portion of the father’s

child support obligation, and awarding attorney fees to the father pursuant to OCGA
§§ 9-15-14 and 19-6-2. For the following reasons, we affirm in part, reverse in part,

and remand the case to the trial court.

The record shows that prior to 2014, the father had physical custody of the

child. In 2014, the mother filed a motion for modification of custody and the trial

court entered a final order finding that it was in the best interest of the child to grant

the mother primary physical custody of the child and grant the father “liberal

visitation.” (the “Final Order”). The mother was employed by the United States Army,

and the trial court detailed in its order what should happen regarding custody of the

child in the event of the mother’s deployment: In the event the mother was deployed,

the father would become the child’s temporary guardian. The mother would be

required to notify the father of her impending deployment within 14 days of receiving

her deployment orders or, if the orders did not allow for 14 days notice, immediately

upon receiving notice of her deployment. If the father was unable to become the

child’s temporary guardian, the mother was to designate another family member to

assume the role.

The Final Order also required the father to pay child support to the mother

every month and to maintain a life insurance policy naming the child as the

beneficiary. The issue of attorney fees was reserved, and approximately seven months

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later, the trial court ordered the father to pay $30,000 in attorney fees to the mother’s

attorney.

In June 2015, the mother filed a motion to hold the father in contempt for

failing to pay child support and obtain the required life insurance policy.

Subsequently, the trial court entered an order holding the father in contempt. That

contempt order was vacated by the trial court, however, due to an issue with service

of process.

Over a year later, the father filed a motion to hold the mother in contempt for,

inter alia, failing to notify him of her deployment overseas. Thereafter, both parties

amended their motions for contempt alleging that the other party violated various

provisions of the Final Order and including the mother’s contention that the father be

held in contempt for failure to pay the ordered attorney fees.

Following a hearing, the trial court issued an order holding the mother in

contempt for failing to notify the father about her deployment (the “Contempt

Order”). In the Contempt Order, the trial court also held that it lacked the authority

to determine if the mother’s attorney fee award constituted a dischargeable debt in the

father’s bankruptcy, abated a portion of the father’s child support obligation, and

awarded attorney fees to the father pursuant to OCGA §§ 9-15-14 and 19-6-2.

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 1. The mother contends that the trial court erred by holding in her contempt for

failing to notify the father about her deployment.

The question of whether a contempt has occurred is for the trial court,
and its determination will be overturned only if there has been a gross
abuse of discretion. Therefore, if there is any evidence to support the
trial court’s determination that a party has wilfully disobeyed its order,
the court’s finding of contempt will be affirmed on appeal.

(Citation and punctuation omitted.) Brochin v. Brochin, 294 Ga. App. 406, 409 (2)

(b) (669 SE2d 203).

Here, in its Final Order, the trial court ordered the mother to notify the father

of her impending deployment within 14 days of receiving her deployment orders or,

if the orders did not allow for 14 days notice, immediately upon receiving notice of

her deployment. At the hearing on the parties’ motions for contempt, the mother

admitted that she did not notify the father about her deployment. The mother testified

that she received her deployment orders in April 2016; however, the father did not

learn of her deployment until July 2016 when the mother’s attorney sent him a letter

notifying him that the mother was deployed. At that point, the mother had already

been deployed to Iraq. Accordingly, we find that the trial court did not abuse its

discretion in holding the mother in contempt for failing to notify the father about her

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deployment. See Brochin, 294 Ga. App. at 409 (2) (b) (i) (holding that the evidence

supported the trial court’s finding of contempt where the mother admitted that she

failed to return the children to the father after her summer visitation as required by

the custody order).

2. The mother contends that the trial court erred by holding that it was without

authority to determine if the mother’s attorney fee award was a dischargeable debt in

the father’s bankruptcy.

In July 2015, the father filed a petition in federal court for bankruptcy. The

mother’s attorney was listed as a creditor. Approximately six weeks after the father

filed his petition for bankruptcy, the trial court ordered the father to pay $30,000 in

attorney fees to the mother’s attorney. The mother concedes in her brief to this Court

that her counsel received notice that the father filed for bankruptcy prior to the entry

of the order granting attorney fees. In February 2016, the father was generally

discharged in bankruptcy.

The mother argues that pursuant to 11 U. S. C. § 523 (a) (5) ,1 attorney fees

arising from a modification of child custody are subject to an exception from

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“A discharge under section 727 . . . of this title does not discharge an
individual debtor from any debt . . . for a domestic support obligation[.]” 11 U. S. C.
523 (a) (5).

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dischargeability and that the trial court erred when it determined that “[t]he

dischargeability of the debt lies squarely within the jurisdiction of the Bankruptcy

Court.”

“Whether a debt is non-dischargeable under § 523 (a) (5) because it is in the

nature of alimony, maintenance, or support is a question of federal law, with state law

providing guidance in determining whether the obligation should be considered

‘support’ under § 523 (a) (5).” (Citations and punctuation omitted.) Rogers v.

McGahee, 278 Ga. 287, 289 (2) (602 SE2d 582) (2004). “State courts have concurrent

jurisdiction with federal bankruptcy courts to determine whether a debt is in the

nature of alimony, maintenance, or support.” (Citations omitted.) Id. “If either the

debtor spouse or the creditor spouse files a complaint in the bankruptcy court to

obtain a determination of the dischargeability of the debts under § 523(a)(5), the

bankruptcy court’s adjudication of the complaint for determination of dischargeability

is res judicata in state court.” (Citation omitted.) Id. “If no complaint seeking a

specific determination of the dischargeability of a debt under § 523 (a) (5) is filed, the

issue of dischargeability may then be tried in the appropriate state court.” (Citation

and punctuation omitted.) Id.

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 “That the debtor former spouse has received a general discharge in bankruptcy

does not deprive the state court of its jurisdiction to determine whether certain debts

of the debtor former spouse are exempt under § 523 (a) (5) from dischargeability.”

Rogers, 278 Ga. at 290 (2). Since there was no evidence that the bankruptcy court

determined whether the attorney fee was dischargeable, the trial court erred by

holding that it lacked jurisdiction to make that determination. Accordingly, this case

is remanded for the trial court to determine the dischargeability of the attorney fee

debt. See id.; Collins v. Collins, 208 Ga. App. 862 (432 SE2d 605) (1993).

3. The mother contends that the trial court erred by abating a portion of the

father’s child support obligation.

The Final Order required the father to make monthly child support payments

to the mother. But, while the order contemplated a potential change in guardianship

for the child in the event of the mother’s deployment, it was silent as to what would

happen to the father’s support obligation if the mother was deployed and the child

was in his care. The mother sought past due child support for the time period that the

child was living with the father while she was deployed.

“Unless a court order provides that child support payments are to abate while

minor children are visiting with their father, such child support payments do not

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abate.” Atkins v. Zachary, 243 Ga. 453 (254 SE2d 837) (1979). The child support

guidelines authorize a trial court to deviate from the presumptive amount of child

support “if supported by the required findings of fact and application of the best

interest of the child standard.” OCGA § 19-6-15 (b) (8). “[D]evations may include .

. . [p]arenting time.” OCGA § 19-6-15 (b) (8) (K). “When ordering a deviation from

the presumptive amount of child support, the court . . . shall make written findings .

. that an amount of child support other than the amount calculated is reasonably

necessary to provide for the needs of the child[.]” OCGA § 19-6-15 (i) (1) (B). The

order must include how “[a]pplication of the presumptive amount of child support

would be unjust or inappropriate; and [t]he best interest of the child for whom support

is being determined will be served by deviation from the presumptive amount of child

support.” OCGA § 19-6-15 (i) (1) (B) (iii) (I) and (II).

In granting the father an abatement for the time period that the child was

residing with him, the trial court held that “[u]nder the facts of this case[,] allowing

an abatement during the time of deployment would not do an injustice to the mother.”

However, the trial court did not state how the deviation was in the best interest of the

child. Because the trial court failed to make the required factual findings, we must

reverse and remand the case, to the trial court to determine if a deviation is in the best

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interest of the child and, if so, to issue written findings of fact supporting the

deviation. See Fladger v. Fladger, 296 Ga. 145, 150-151 (2) (765 SE2d 354) (2014);

Brogdon v. Brogdon, 290 Ga. 618, 623 (5) (b) (723 SE2d 421) (2012).

4. The mother contends that the trial court erred by awarding attorney fees to

the father pursuant to OCGA §§ 9-15-14 and 19-6-2.

(a) The trial court granted the father’s motion for attorney fees pursuant to

OCGA § 9-15-14 without holding an evidentiary hearing. “To make a valid award of

attorney fees the trial court must conduct an evidentiary hearing to determine the

amount of reasonable and necessary attorney fees.” (Citation and punctuation

omitted.) Fox-Korucu v. Korucu, 279 Ga. 769, 770 (1) (621 SE2d 460) (2005).

Accordingly, the trial court erred by awarding fees pursuant to OCGA § 9-15-14

without a hearing. See Fox-Korucu, 279 Ga. at 770 (1); Evers v. Evers, 277 Ga. 132

(1) (587 SE2d 22) (2003).

(b) OCGA § 19-6-2 only applies to attorney fees in alimony and divorce cases.

See OCGA § 19-6-2 (“The grant of attorney’s fees . . . made at any time during the

pendency of the litigation, whether the action is for alimony, divorce and alimony, or

contempt of court arising out of either an alimony case or a divorce and alimony case

. . . shall be . . .”); Appling v. Tatum, 295 Ga. App. 78, 83 (5) (670 SE2d 795) (2008).

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Because this case does not involve alimony or divorce, OCGA § 19-6-2 does not

apply. See Appling, 295 Ga. App. at 83 (5). Accordingly, we reverse the trial court’s

award of attorney fees to the father.

Judgment affirmed in part, reversed in part; case remanded. Miller, P. J., and

Reese, J., concur.

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