Ehlers v. Ehlers

Carley, Justice,

concurring in part and dissenting in part.

I concur in Divisions 2 and 3 of the majority opinion. As to Division 1 and the consequent remand of this case to the trial court, however, I must dissent.

The guidelines for child support set forth in OCGA § 19-6-15 certainly must be considered by the trial court. In this case, the trial court did not make a written finding that, in making its award of child support, the guidelines had been considered. However, there is no statutory requirement that such a finding be made. The trial court also did not make a written finding that it was adhering to or deviating from the guidelines. By its unambiguous terms, however, the applicable provisions of OCGA § 19-6-15 (c) require a written finding only in the event that the final award is not within the range of the guidelines.

The problem in this case arises only because the amount of appellant-plaintiff Husband’s income was in dispute and the trial court did not make a written finding of fact as to that issue. If a finding had been made as to Husband’s income, only a simple calculation would then be necessary to determine whether the $1,500 per month awarded as child support was an amount within the applicable guidelines for two children. However, there is no statutory requirement that a trial court make a written finding as to the amount of income.

In my opinion, the General Assembly should be urged to amend OCGA §. 19-6-15 so as to require that additional written findings be made in cases in which the guidelines are applicable. Until the enact*673ment of legislation imposing such an additional requirement, I agree that this court should encourage the trial courts to make additional written findings in all guideline cases. I do not agree, however, that this court should take it upon itself to require that such additional written findings be made in all guideline cases. In this case, the trial court heard the evidence as to Husband’s income and awarded $1,500 per month as child support. In the absence of anything to the contrary, we must presume that that $1,500 is within the 23-28 percent of Husband’s income that the guidelines specify for an award of support for two children. See Century 21 Mary Carr &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992). Accordingly, I would affirm the trial court’s order and must dissent to the remand for the trial court to make such written findings as the majority has judicially engrafted into the provisions of OCGA § 19-6-15.

Decided November 28, 1994. Adele L. Grubbs, B. Wayne Phillips, for appellant. Lewis M. Groover, Jr., for appellee.