Domestic Relations - Barry B. Mcgough and Elinor H. Hitt

• Publication year: 2009

Domestic Relationsby Barry B. McGough^* and Elinor H. Hitt^**

This Survey chronicles developments in Georgia domestic relations law from June 1, 2008 to May 31, 2009.¹ This survey period saw continued evolution of domestic relations law through changes in legislation and case law. Legislation passed by the 2008 Georgia General Assembly took effect on July 1, 2008. The Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, which provide guidance to those interested in domestic relations law.

I. Child Custody

In Rumley-Miawama v. Miawama,² the Georgia Supreme Court disapproved of language it interpreted to be a self-executing material change in visitation.³ Following a bench trial, the trial court entered a final judgment and divorce decree that awarded the parties joint legal custody of the minor child. The trial court awarded the wife visitation on alternate weeks, giving the parents equal amounts of time with the child. However, the trial court alternatively ordered that if the wife moved out of Georgia, she would be entitled to visitation on three-day federal holidays, Thanksgiving, part of Christmas break, and for two months in the summer. After the trial court denied the wife's motion for a new trial, the wife appealed, contending that the trial court erred in establishing the alternate visitation schedule.⁴

With regard to this alternate visitation provision, the Georgia Supreme Court held that a self-executing material change in visitation violates the public policy of this state because it does not necessarily consider the best interest of the child.⁵ The court further stated that such a provision should only be implemented when there is evidence

that one or both parties have committed to a given course of action that will be implemented at a given time; . . . how that course of action will impact upon the best interests of the child . . .; and the provision is carefully crafted to address the effects on the offspring of that given course of action.⁶

Further, such provisions "should be narrowly drafted to ensure that they will not impact adversely upon any child's best interests."⁷

Here, the supreme court determined that the alternate visitation provision was material because it substantially reduced the amount of time the wife and her child would have together.⁸ The evidence at trial did not establish that the wife had committed herself to an out-of-state move. Also, the provision contained no time limitation restricting its application.⁹ Therefore, the court struck the provision because it improperly authorized an open-ended, automatic, and material change in visitation.¹⁰

II. CHILD SUPPORT

During this survey period, both Georgia appellate courts reviewed cases in which child support was an issue. These cases were initiated after the Georgia Child Support Guidelines¹¹ became effective on January 1, 2007. In Hampton v. Nesmith,¹² the trial court awarded the mother an upward modification in child support from her daughter's father, the mother appealed the ruling that delayed the initiation of the father's increased obligation for fifteen months.¹³

The parties, who had never married, were the parents of a minor child. In 2003 the father legitimated the child and was ordered to pay $525 a month in child support. In March 2006 the father filed a petition seeking, in part, a downward modification of his child support obligation. The mother filed an answer and a counterclaim seeking unpaid child support and an upward modification in the father's child support obligation.¹⁴

In July 2007 the trial court held a bench trial. The father was found in contempt for failing to pay $3990 in child support, and the trial court ordered him to pay the arrearage at a rate of $300 per month beginning in October 2007. The court also found that the father's income had increased; thus, the court ordered an upward modification of his child support obligation to $800 per month. However, the court delayed this increase until October 2008 to allow the father to first pay the arrearage due.¹⁵

The Georgia Court of Appeals agreed with the mother's contention that the trial court erred in delaying the effective date of the father's increased child support obligation for fifteen months.¹⁶ The court pointed to the Georgia Child Support Guidelines, which provide as follows:

If there is a difference of [thirty] percent or more between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to two years with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than [twenty-five] percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.¹⁷

The court concluded that even though the full implementation of an upward modification may be delayed via a phase-in, the trial court "must provide for some amount (not less than [twenty-five] percent) of the new award to take effect immediately."¹⁸

In the instant case, the upward modification was more than a fifty percent increase of the original child support award, but the trial court completely delayed the increase for fifteen months instead of ordering a phase-in of the modification.¹⁹ The court of appeals vacated the portion of the lower court's ruling that delayed the upward modification of support for fifteen months.²⁰

Both Georgia appellate courts considered cases that addressed questions regarding income and deviations under the current Georgia Child Support Guidelines. In Appling v. Tatum,²¹ the father appealed the trial court's inclusion of income from his K-1 schedule in its determination of his adjusted gross annual income for purposes of calculating child support.²²

At trial, the father's accountant testified that $198,000 of the father's adjusted gross annual income constituted K-1 income he did not actually receive because it was used to operate his business.²³ Section 19-6-15(f)(1)(B) of the Official Code of Georgia Annotated (O.C.G.A.)²⁴ directs,

In general, 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. Generally, this amount will differ from a determination of business income for tax purposes.²⁵

Relying on this statute, the father argued that the income on his K-1 was not "available" to him and should not have been used to calculate his child support payments.²⁶ However, the father cited no authority in support of his position. Even his accountant conceded that the Internal Revenue Service treats K-1 income as ordinary income.²⁷ Additionally, the income reflected on a K-1 is not statutorily excluded from gross income for the purposes of calculating child support.²⁸ The Georgia Court of Appeals held that the K-1 reflected income in this case and that the trial court did not abuse its discretion when it included the K-1 income in its child support calculation.²⁹

In Evans v. Evans,³⁰ the mother appealed the trial court's decision not to include overtime payments received by the father in its calculation of his child support obligation. The trial court refused to include this income because the overtime payments were not guaranteed income.³¹ On review, the Georgia Supreme Court relied on O.C.G.A. Sec. 19-6-15(f)(1)(A),³² which provides that in setting the presumptive amount of child support, the gross income ofeach parent "shall include all income from any source, before deductions for taxes and other deductions . . ., whether earned or unearned, and includes, but is not limited to, . . . [o]vertime payments."³³ Because the child support guidelines "'are mandatory and must be considered by a trier offact setting the amount ofchild support,'" the supreme court reversed the lower court's ruling.³⁴

The supreme court also heard cases involving the denial ofdeviations to the presumptive amount of child support. In Rumley-Miawama v. Miawama,³⁵ the supreme court upheld a lower court's decision not to apply a parenting time deviation to reduce the amount of child support owed by the mother, even though the parents had equal parenting time with the children.³⁶ Similarly, in Johnson v. Johnson,³⁷ the supreme court upheld the lower court's decision not to include a deviation for the children's private school tuition as extraordinary educational expenses in its child support calculations.³⁸ In both cases, the supreme court pointed out that such deviations are within the court's discretion.³⁹

Effective July 1, 2008, the Georgia General Assembly amended O.C.G.A. Sec. 19-6-15,⁴⁰ in part, to change and clarify certain provisions relating to gross income.⁴¹ As amended, the statute makes clear that income for a parent who is on active military duty includes: "(i) Base pay; (ii) Drill pay; (iii) Basic allowance for subsistence, whether paid directly to the parent or received in-kind; and (iv) Basic allowance for housing, whether paid directly to the parent or received in-kind."⁴² However, unless otherwise determined by the court or jury, "special pay or incentive pay, allowances for clothing or family separation, and reimbursed expenses related to the parent's assignment . . . shall not be considered income for the purpose of determining gross income."⁴³

III. DOMICILE

In Kean v. Marshall,⁴⁴ the Georgia Court of Appeals considered the question of domicile under the Uniform Interstate Family Support Act (UIFSA).⁴⁵ Waco Kean and Gina Marshall were the unmarried parents of a child born in November 1996. In November 1997 an Alabama court ordered Kean to pay support for the child. Pursuant to the UIFSA, Marshall filed an action in April 2006 to record the Alabama order and to request an upward modification in the amount of Kean's child...