In June 2022, child support was the main theme for cases released by the Georgia Court of Appeals. The Court released seven opinions in June related to our family law practices. Only one opinion was custody related. Scroll down for more.
Business is getting back to normal, but court rules and regulations continue to change. See updates on news, notices, orders and resources affecting family law practices on my Covid-19 Pandemic: Family Law Updates and Resources page.
Custody-Related Cases Released in June 2022:
Bowman v. Rouse, Case No. A22A0380, June 6, 2022.
In 2018, when Rouse (Father) legitimated the minor child, he and Bowman (Mother) had joint custody, with Bowman having primary physical custody and final decision making on most things. In 2020, Rouse was furloughed from his job, and was later involuntarily terminated. Based on his loss of income, Rouse petitioned to modify child support. He also requested a modification of parenting time. Contending that Rouse did not exercise much of his parenting time, Bowman counterclaimed for modification of child support and parenting time. She also requested that Rouse be held in contempt for failure to pay child support since his furlough. The trial court granted Rouse’s petition to modify his child support obligation and parenting time. The court also denied Bowman’s contempt action, and instead re-calculated the child support arrearages to reflect Rouse’s loss of income. Bowman appealed.
Visitation and parenting time may be subject to review and modification without a showing of a change in material conditions or circumstances not more than once every two years. Although Rouse had not exercised all of his parenting time under the parenting plan, the trial court recognized that practical hindrances prevented him from doing so. Thus, the evidence supported the trial court’s modification of parenting time to rectify those hindrances. Moreover, the trial court indicated that its primary consideration was the best interests of the child.
Rouse requested in his pleadings that in accordance with O.C.G.A. §19-6-15(j), child support stop accruing at its original rate because of his involuntary loss of income. This was sufficient to put Bowman on notice of his intent to invoke the code section. Under this code section, the trial court is not authorized to retroactively modify child support. Rather, if the income loss is 25% or greater, the court may calculate arrearages to not include the portion of child support which is attributable to the lost income. The determination begins as of the date the modification petition is served, not as of the date it is filed. Finally, despite Bowman’s evidence indicating that the trial court could impute income to Rouse for purposes of prospective child support, the evidence also supported not imputing income. The trial court was authorized, in its discretion, to give greater credit to the latter evidence.
PRACTICE NOTE: Child custody cases can be so very difficult for both the attorney, and the client. Untangling the issues and challenges in custody cases can get the best of us. Check out my Independent Custody Assessments, Litigation Support for Attorneys and Litigation Support for Clients pages to see what I can do to provide support and assistance in navigating through the difficulties, and to obtain a more favorable outcome for your client. The fresh perspectives and litigation support may be exactly what you need!
Related Family Law Cases Released in June 2022:
Dependency // Reunification
In the Interest of D.C. et al, children, Case No. A22A0525, Georgia Court of Appeals, June 1, 2022.
DFCS must make reasonable efforts to preserve the family unit and enable a child to be safely returned to the parents. Only in certain circumstances does the presumption apply that reunification is detrimental to the dependent child. Rather, DFCS has the burden of showing, by clear and convincing evidence, that a reunification plan is not appropriate for the health and safety of the dependent child and the child’s need for permanence.
In the instant case, DFCS violated Father’s due process rights by failing to comply with its statutory duty to provide proper notice of the dependency petition and all hearings while he was incarcerated. Moreover DFCS violated its statutory duty to include Father it its reports and case plans. Failure to comply with these statutory duties deprived Father of the opportunity to challenge DFCS’s unilateral predetermination of unfitness. Instead, the evidence was that Father fully complied with all requirements DFCS imposed on him, except those which were impossible because of the pandemic. Thus, the juvenile court’s non-reunification order was not supported by the evidence.
Dependency // Parental Unfitness
In the Interest of K.K., a child, Case No. A22A0400, Georgia Court of Appeals, June 1, 2022.
A Juvenile Court may place a child in DFCS custody if the State shows, by clear and convincing evidence that the child is dependent as defined by O.C.G.A. §15-11-2(22). However, only upon clear and convincing proof that the dependency is the result of parental unfitness can the court remove the child from the parent. Moreover, the dependency order must contain findings of fact and conclusions of law.
Contempt // Inability to Pay // Attorney Fees // Interest
Claybrooks v. Claybrooks, Case No. A22A0413, Georgia Court of Appeals, June 7, 2022.
A party willfully disobeying a court order may be held in contempt. Inability to pay child support is a defense if the contemnor can show that s/he has exhausted all resources and assets available, and is still unable to pay. A 401(k) account is an asset available to pay child support despite the fact that penalties are incurred for early withdrawals. O.C.G.A. §19-6-28(a) does not authorize an attorney fees award in a contempt action. Rather, it authorizes the trial court to impose “terms and conditions” to ensure compliance with its orders. Likewise, O.C.G.A. §19-6-2 does not authorize an attorney fees award in a contempt action unless it arises from a failure to comply with the original alimony or divorce decree.
Additionally, O.C.G.A. §7-4-12.1(a) authorizes a trial court, in its discretion, to apply or waive interest at the rate of 7% per annum to awards and judgments in domestic relations cases. In deciding whether to apply interest, the court must consider four statutory factors, including whether the contemnor had good cause for not paying, and whether applying interest will affect his/her ability to pay child support See Spirnak v. Meadows, 355 Ga. App. 857 (2020). This applies in all domestic relations cases, whether interest is pled for or not.
Child Support // Imputing Gross Income
Berg v. Beaver, Case No. A22A0252, Georgia Court of Appeals, June 16, 2022.
O.C.G.A. §19-6-15(f)(4)(B) provides that in modification of child support actions, a trial court may impute gross income to a parent if the parent fails to produce reliable evidence of gross income, and no other reliable evidence of income is available. The trial court may disregard evidence of income if it is not credible or reliable. See Franco v. Eagle, 361 Ga. App. 506 (2021). Moreover, the trial court is also authorized to consider the parent’s expenses when imputing income. Finally, the trial court is not required to make findings of fact as to the parent’s assets, job skills, education and other factors listed in O.C.G.A. §19-6-15(f)(4)(A) unless requested to do so by a party.
Child Support // Gross Income // Deviations
Nelson v. McKenzie, Case No. A22A0199, Georgia Court of Appeals, June 28, 2022.
A parent’s gross income for purposes of calculating child support shall include all income from all sources, before deducting taxes. Variable and periodic income such as commissions, bonuses, overtime and dividends must be averaged over a reasonable period of time. In calculating child support, the trial court may, in its discretion, deviate from the presumptive amount of child support based on extensive visitation related travel expenses, and extraordinary educational costs. Deviations, however, must be supported by written findings of fact. Extraordinary educational costs such as private school expenses are a prorated specific deviation pursuant to O.C.G.A. §19-6-15(i)(2)(J)(i). Such extraordinary expenses, however, must be appropriate to the parent’s financial abilities, and to the lifestyle of the child if the family was intact.
Best Evidence Rule
Glasper v. State, Case No. A22A0505, Georgia Court of Appeals, June 29, 2022.
O.C.G.A. §24-10-1002, Georgia’s best evidence rule, provides that except in certain circumstances, the originals are required to prove the contents of a writing, recording or photograph. The contents of the writing, recording or photograph may be proved by other means if the original was lost or destroyed (not in bad faith); if it cannot be obtained by subpoena or other judicial process; or if a party properly put on notice does not produce the original. Moreover, if the evidence is not closely related to a controlling issue in the case, the original may not be required.