Ehlers v. Ehlers

Thompson, Justice.

We granted a discretionary appeal in this child support modification case to determine three questions: 1) Must a trier of fact, upon modifying an award of child support, enter written findings of special circumstances in order to deviate, up or down, from the child support guidelines of OCGA § 19-6-15 (b)? 2) In determining the amount of child support to be paid by an obligor, can the trier of fact give credit for payments other than direct cash child support payments (e.g., medical payments)? 3) In calculating the amount of child support one is obligated to pay, should the guideline percentages of child support found in OCGA § 19-6-15 (b) be applied to the total number of children that the obligor is legally obligated to support or only to the children for whom support is being determined in that action?

Chester and Suzanne Ehlers were divorced in 1989; custody of their two children was awarded to Suzanne. The final decree called upon Chester to pay child support in the amount of $2,000 per month and maintain medical insurance covering the children. Following his divorce, Chester remarried and fathered two more children. Chester and Suzanne’s children spend a considerable amount of time (nearly 50 percent) visiting with Chester and his new family.

Chester was in the commercial real estate business. Between 1988 and 1992, his income declined steadily from a high of $99,632 to a low of $6,229.1 In 1991, Chester sought a downward modification of child support. Following a hearing, the trial court found a substantial decrease in Chester’s income and a substantial increase in Suzanne’s income; it modified Chester’s child support payments downward to $1,500 per month; it ordered Chester to continue to maintain medical insurance coverage for the children and to pay all medical and dental bills not covered by insurance. The trial court did not make a written finding of special circumstances in setting the modified child support payments.

1. [T]he guidelines for computing the amount of child sup*669port found in OCGA § 19-6-15 (b) and (c), known as the “Child Support Guidelines,” are the expression of the legislative will regarding the calculation of child support and must be considered by any court setting child support.

Pruitt v. Lindsey, 261 Ga. 540 (407 SE2d 750) (1991). The guidelines are to be applied in child support modification actions. Riggs v. Dorsey, 260 Ga. 487 (396 SE2d 905) (1990). See also Willingham v. Willingham, 261 Ga. 674 (410 SE2d 98) (1991).

OCGA § 19-6-15 (c) permits the trier of fact to vary the final award of child support, beyond the range of the guidelines, “upon a written finding of special circumstances.” This provision requires written findings whenever a trier of fact departs, up or down, from the guidelines. Our decision in this regard is bolstered by the 1994 amendment to the guidelines, effective July 1, 1994. It states that the guidelines create a rebuttable presumption that the amount of support awarded is correct and requires a written finding2 to rebut the presumption in any particular case. OCGA § 19-6-15 (b); Ga. L. 1994, p. 1728. The finding “must state the amount of support that would have been required under the guidelines and include justification of why the order varies from the guidelines.” Id.

Suzanne asserts that we must presume the trial court followed the law, see Century 21 Mary Carr &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992), and that, therefore, the trial court must not have departed from the guidelines because it did not enter written findings. In this regard, she posits that the trial court must have determined that Chester’s income was far more than he disclosed. This argument does nothing more than point out the need for written findings, especially in cases like this where the obligor’s income is disputed. In the absence of such findings, it is difficult for a reviewing court to determine whether or not the guidelines were adhered to, or departed from. Accordingly, we urge the trial courts to enter written findings or specific findings on the record in all child support guideline cases. See OCGA § 19-6-15 (b).

We answer the first question affirmatively and remand this case for written findings in accordance with OCGA § 19-6-15 (b). Once such findings have been entered, either party can apply for appellate review.

2. The guidelines for computing the amount of child support found in subsection (b) of OCGA § 19-6-15 do not make allowance for payments other than direct cash child support payments made on behalf of the children. Thus, credit is not to be given for indirect pay*670ments, e.g., medical costs or accident and sickness insurance premiums, when the child support award is calculated initially. In calculating an obligor’s child support payment pursuant to OCGA § 19-6-15 (b), the trier of fact is only to look to the obligor’s gross income and the appropriate percentage range. OCGA § 19-6-15 (b) (5).

Once the child support award is determined pursuant to the formula set forth in OCGA § 19-6-15 (b), the trier of fact can then vary the “final award,” upon a consideration of “any factor which [it] deems to be required by the ends of justice.” OCGA § 19-6-15 (c). A list of the factors warranting such variations is set forth in OCGA § 19-6-15 (c). It includes “medical costs,” “educational costs,” “extended visitation,” and, pursuant to the 1994 amendment to the statute, “accident and sickness insurance coverage.” Notably, the list is not all inclusive; it provides examples only. Nonetheless, OCGA § 19-6-15 (c) makes it clear that the trier of fact can give consideration to indirect costs paid by the obligor, e.g., health insurance premiums, in departing from the guidelines. We answer the second question affirmatively, but point out that indirect payments can be considered only to “vary the final award of child support . . . .” OCGA § 19-6-15 (c).

3. In determining the final child support award, the trier of fact can consider an obligor’s “other support obligations to another household.” OCGA § 19-6-15 (c) (6). Thus, the existence of other children may be considered in calculating the level of support. See Batterson v. Groves, 204 Ga. App. 52 (418 SE2d 373) (1992).3 But this is not to say that the initial guideline calculation is to be made on the basis of “other support obligations.” On the contrary, OCGA § 19-6-15 (b) makes it clear that the guideline calculation is to be “based on the number of children for whom child support is being determined.” OCGA § 19-6-15 (b) (5). Thus, the guideline percentage is to be computed on the basis of the number of children for whom support is being determined in a particular case.4 After that calculation is made, the final award can be adjusted on the basis of other children to whom the obligor owes support. OCGA § 19-6-15 (c) (6); see Batterson v. Groves, supra. We answer the third question with a qualified “no.” The guideline percentage of child support found in OCGA § 19-6-15 (b) cannot be based upon the total number of children the obli*671gor must support. However, the trier of fact can consider the obligor’s other support obligations to vary the final award. OCGA § 19-6-15 (c) (6).

Case remanded for further proceedings consistent with this opinion.

All the Justices concur, except Hunstein, J., who concurs specially; Hunt, C. J., Sears and Corley, JJ., who concur in part and dissent in part.

Chester acquired additional monies when he settled a lawsuit with his former employer. He averred that he grossed $62,000 and netted $27,000. Suzanne claims that Chester realized $127,000 when he settled the lawsuit and points out that, with the help of his wife and mother-in-law, he purchased a new home in November 1991 for $166,000.

The amendment to OCGA § 19-6-15 (b) allows for a specific finding on the record in lieu of a written finding.

Although it would appear that the trier of fact in Batterson considered the obligor’s other child in calculating the guideline percentage, it could not be said that the trier of fact erred, as a practical matter, since it was permitted to consider the other child in determining the final award.

Policy considerations behind OCGA § 19-6-15 support this view. The statute was designed to protect children by providing minimum financial security. See 1984 U. S. Code Cong. & Admin. News 2397. This purpose would be frustrated if the guideline calculation were applied to the total number of children spawned by an obligor.