June 2020 was the busiest month in ages for new custody and family law related opinions from the Georgia Court of Appeals. Despite the pandemic and the Judicial Emergency Declaration, the Court of Appeals released three custody related opinions, and six other family law and other related opinions in June. The first five opinions are below. The remaining four (listed below) can be found in Part 2 of the June 2020 Georgia case law updates.
Also, please visit my Covid-19 Pandemic: Family Law Updates and Resources page for the latest in orders, notices and other resources relevant to our family law practices.
Spirnak v. Meadows, 355 Ga. App. 857 (2020)
Spirnak and Meadows are the parents of a minor child born in 2009. Spirnak legitimated the child in 2010. Meadows retained primary physical custody, and Spirnak had visitation rights with the child. He also paid child support. In 2013, Meadows moved out of state with the child. At that point, Spirnak began exercising visitation less often, and he decreased his monthly child support payments.
Between 2011 and 2014, Spirnak earned between $55,000 and $67,000 per year. He was laid off of his job in 2014, and, he also underwent treatment for cancer that year. But, instead of returning to work in the sales and marketing field where he had worked for 15 years, Spirnak started his own part-time seasonal business as a tree surgeon. He also stopped paying most of his child support. In 2016, Spirnak filed the instant petition, seeking to modify child support and visitation. Meadows counterclaimed for contempt, seeking interest on the arrearage. She also sought an upward deviation in child support, supervision of Spirnak’s visits and attorney fees. The trial court denied Spirnak’s modification petition, and granted Meadows’ counterclaim. Spirnak appealed.
The trial court did not err by requiring that Spirnak’s overnight visitation be supervised by his mother. Notably, Spirnak had been arrested several times, and pled guilty to family violence against a former girlfriend. Under O.C.G.A. §19-9-7(a), a trial court may impose conditions on visitation, including supervision, if the parent has committed family violence. This applies even if those acts were committed against a third-party, and not against the child or the other parent. Furthermore, the child’s best interest is a necessary consideration in visitation determinations. And, O.C.G.A. §19-9-3(b) authorizes changes in visitation without evidence of changed circumstances.
In addition, the trial court did not err in requiring Spirnak to be responsible for all visitation travel expenses until he pays all child support arrearages. This was not an undue burden on Sprinak’s visitation, and it did not improperly make his visitation contingent upon his payment of child support. Rather the trial court’s order relieved the financial hardship Spirnak caused Meadows, who had borne most of the expense to enable visitation despite not having received child support.
Furthermore, in custody actions, a trial court may make prohibitive or mandatory orders if appropriate and just under the circumstances. Accordingly, it was not unduly burdensome for the trial court to require Spirnak to provide contact information for his mother and roommates. Furthermore, the evidence was that the child had never flown alone, and that she experienced nosebleeds. Thus, the trial court did not abuse its discretion in limiting her travel by airplane to after age 14. It also was not unduly burdensome for the the trial court to order that Spirnak cannot withhold the child’s belongings at visitation exchanges if Meadows refuses to park her car next to his.
The evidence supports the trial court’s conclusion that Spirnak was voluntarily underemployed. Spirnak has a college degree and 15 years experience in sales and marketing. Yet, he was self-employed in seasonal work as a part-time tree specialist, earning significantly less income than when he worked in his area of expertise. Thus, it was within the trial court’s discretion to find that Spirnak could earn more money. Moreover, Spirnak did not show that a downward modification of child support is in the child’s best interests. His assertion that he otherwise would not be able to afford to exercise visitation had no merit, since he was able to afford vacations, restaurants, bars, sporting events, and his gym membership. Accordingly, the trial court also did not err in refusing to downwardly modify Spirnak’s child support obligation.
Furthermore, the trial court did not err by not using the self-employment schedule to determine Spirnak’s income. Instead, the trial court properly applied Spirnak’s claimed gross income, which already calculated reasonable expenses into the bottom line. Plus, the court imputed income to Spirnak based on his voluntary underemployment. Accordingly, there was no need to use the self-employment schedule. In addition, O.C.G.A. §19-6-15(i)(2)(K)(i) authorized the trial court to apply a parenting time deviation because of Sprinak’s failure to exercise visitation. In so doing, the trial court explained that the presumptive child support is inappropriate because Spirnak rarely exercised his parenting time. But, the court failed to show how the deviation is in the child’s best interests. Accordingly, the child support award is remanded for the trial court to make appropriate findings to support the deviation.
Under O.C.G.A. §7-4-12.1(a), a trial court has discretion to apply or waive interest on unpaid child support. See McCarthy v. Ashment, 353 Ga. App. 270 (2019). In making this determination, the court shall consider: 1) does good cause exist for not paying child support; 2) will assessing interest cause substantial and unreasonable hardship for the payor; 3) will interest affect the parent’s ability to pay current child support; and 4) will waiving or reducing interest cause substantial and unreasonable hardship for the receiving parent. The trial court did not consider these factors. Furthemore, the trial court erred in its interest calculation. Pursuant to O.C.G.A. §7-4-12.1(a), interest is calculated “at the rate of 7 percent per annum commencing 30 days from the date” the payment is due. Spirnak’s child support is a monthly obligation. Thus, interest should be calculated on a monthly, not annual, basis. Accordingly, the interest award is vacated, and remanded for further findings.
The trial court cited several statutes as the bases for awarding fees. Yet, not all apply in this case. For example, O.C.G.A. §19-6-2 cannot be the basis for the fee award since this is a modification action, and does not involve divorce or alimony. Likewise, an award under O.C.G.A. §19-9-3(g) cannot stand since there was no evidence to support the reasonableness of the fees awarded, such as the actual time expended, and hourly rates.
O.C.G.A. §19-6-15(k)(5), which authorizes an award of fees to the prevailing party in some child support actions, may be an appropriate basis for the trial court’s award. Generally, under this code section, a trial court is mandated to award fees if child support is increased because the non-custodial parent does not exercise visitation. However, in the instant case, the trial court’s basis for the fee award was not the upward modification of support. Rather, the basis for the award was Spirnak’s trial tactics, and his ultimate failure to succeed in his request for a downward modification.
Similarly, O.C.G.A. §9-15-14, cited by the trial court, may be an appropriate basis for the fee award. In fact, in its order, the trial court tracked language similar to subsection (b) of this code section. For example, the trial court concluded that Spirnak’s trial tactics and litigation strategies were “frivolous,” “lacked substantial justification,” and “unnecessarily increased litigation costs.” The trial court’s order, however, is insufficient to support its award under this code section. Firstly, lump sum awards are not authorized under O.C.G.A. §9-15-14. Moreover, the record contains no evidence as to the amount of fees requested, whether the fees were reasonable and how the fees related to sanctionable conduct. Accordingly, the Court of Appeals remanded the fee award for additional findings under O.C.G.A. §§9-15-14 and 19-6-15(k)(5).
Finally, Spirnak contends that the trial court should not have adopted Meadows’ proposed order since the tone of the language was objectionable. The Court of Appeals, however, reiterated that, as in the instant case, a trial court does not abuse its discretion by adopting a proposed order, as long as the findings are supported by the evidence. With this in mind, the Court admonished litigants to submit complete and thorough proposed orders for consideration by trial courts, so as to avoid the necessity of remands when they are appealed.
Ross v. Small, Case No. A20A0372, Georgia Court of Appeals, June 11, 2020.
Small filed a petition to establish paternity of her minor child, and for child support. Ross was served with the petition, but he did not file a response, or appear at trial. The trial court subsequently found that Ross was the child’s biological father, and granted Small’s petition. The court also awarded sole custody to Small, as well as retroactive and continuing child support and attorneys fees. This appeal followed.
Paternity actions are governed by O.C.G.A. §19-7-40 et seq. The instant paternity action automatically went into default pursuant to §19-7-47(b), when Ross failed to timely file an answer. And, since he never moved to open default, the trial court was authorized to enter a final order of paternity.
Additionally, although O.C.G.A. §19-7-43(d) authorizes the trial court to order genetic testing, it does not require it. Thus, the trial court did not err in finding that Ross is the child’s biological father, despite no genetic testing. Furthermore, unless a child born out of wedlock is legitimated, the mother is entitled to custody, and may exercise all parental power over the child. Accordingly, the trial court was authorized to award sole custody to Small.
Finally, the evidence authorized a retroactive award of child support. However, the trial court erred in the percentage of retroactive support it attributed to Ross under the child support guidelines. The trial court also erred by not citing statutory authority for its attorney fees award to Small. Accordingly, the Court of Appeals vacated the child support and attorney fee awards, and remanded them for the trial court appropriately redress.
Related Family Law Cases Released in June 2020:
Child Support // Parenting Time Deviation
Perez v. Cunningham, Case No. A20A0601, Georgia Court of Appeals, June 4, 2020.
A trial court may apply a parenting time deviation to the presumptive amount of child support if visitation rights are not exercised. The deviation, however, must be supported by written findings that it is reasonably necessary to provide for the child’s needs. Findings should include the reasons for the deviation; the presumptive amount of child support; how the presumptive amount would be unjust or inappropriate; and how the best interests of the child will be served. In the instant case, the trial court made no findings regarding the parenting time deviation in the child support addendum, or in its order. And, the findings required by O.C.G.A. §19-6-15(i)(1)(B) were inadequate, one-word responses. The trial court also erred by retroactively modifying child support. Instead, modifications of child support are applied prospectively, from the date of the final order.
Equitable Division of Pre-Marital Property // Child Support
Calloway-Spencer v. Spencer, Case No. A20A0546, Georgia Court of Appeals, June 23, 2020.
Pre-marital property may lose its separate property character if a spouse manifests an intent to convert it into marital property. Gifting non-marital property to the marital unit, is an example of this. If property has not been gifted or otherwise converted to marital property, and both marital and non-marital contributions have been made to it, then a trial court should apply the “source of funds” rule to determine the marital portion. In the instant case, the evidence did not support the trial court’s finding that the wife gifted pre-marital property to the marital unit. Instead, the trial court should have applied the source of funds rule to determine what portion of the property is subject to equitable division. That division should be equitable, and not necessarily equal. Additionally, the trial court should consider a mortgage encumbering property when determining the value of an asset.
As to the issue of child support, a trial court may impute income for willful or voluntary unemployment or underemployment. In doing so, the court may consider the parent’s education, training and employment history. Husband, a school teacher, testified about the lack of teaching positions during the summer months. The Court of Appeals held that “given Husband’s testimony,” the trial court did not err by not imputing income to him during the months he did not work.*** Moreover, even though the evidence contradicted Husband’s financial affidavit, the evidence supported the trial court’s findings as to his income.
Finally, the child support guidelines presume that parents should pay a proportionate share of child support based on their respective incomes, without regard to their respective parenting times. The trial court, however, may deviate from the presumptive child support in special circumstances, if the court finds that the presumptive amount is unjust or inappropriate, and that a deviation is in the child’s best interests.
*** QUERY: By using the language “given Husband’s testimony,” is the Court of Appeals suggesting that in some instances it is appropriate for a trial court to impute income to school teachers who do not work during the summer months? What is your experience with this? Leave your thoughts and comments below.
Contempt // Notice // Liquidated Damages
Nadal v. Nadal, Case No. A20A0770, Georgia Court of Appeals, June 23, 2020.
In indirect contempt cases, due process entitles the accused to proper notice that fully informs him of the specific acts for which he is charged. Thus, a rule nisi must issue and be served upon the alleged contemnor to give him the opportunity to be heard and defend the charges. The notice requirement is not satisfied by the fact that the accused has actual notice and shows up at trial. Furthermore, parties may agree to liquidated damages in a settlement agreement. Those damages may be enforceable if the trial court finds that 1) damages for a potential breach of the agreement are difficult or impossible to accurately estimate; 2) the parties intend to provide for damages, rather than for a penalty; and 3) the amount of damages agreed upon is a reasonable estimate of the probable loss.
Finally, Part 2 of the June 2020 Georgia Custody/Visitation Case Law Updates reviews the below cases from the second half of June 2020:
- Braddock v. Lindsey, et al.
- Paul v. Paul
- Allison v. The State
- Swearngin v. Rowell