Fladger v. Fladger , 296 Ga. 145 ( 2014 )

In the Supreme Court of Georgia
Decided: November 3, 2014
S14F1711. FLADGER v. FLADGER.
NAHMIAS, Justice.
Appellant Kelly Fladger (Father) and appellee Monica Fladger (Mother)
were married in September 1994. Their marriage produced two children, who
were ages ten and six when Mother filed for divorce in 2011. After a bench
trial, the trial court entered an order of divorce on December 13, 2012, and then
amended the order on December 5, 2013. In this discretionary appeal granted
under OCGA § 5-6-35 and this Court’s Rule 34 (4), Father challenges the
amount of child support he has been ordered to pay, which was calculated in
part using a high-income deviation. We reverse that portion of the divorce order
and remand for the trial court to make all of the written findings that the child
support statute requires before such a deviation may be applied.
1. The December 13, 2012 divorce order made Mother the custodial
parent and said the following regarding child support:
The Mother earns $5,097.35 monthly as a teacher in the Gwinnett
County Public Schools. The Father’s 2011 income was
$639,573.38. He earned approximately $674,000 in 2010. The
Father shall pay child support in the amount of $5,052.00 monthly,
to commence on January 1, 2013. . . .
The child support worksheet filed with the order showed that, based on Father’s
monthly gross and adjusted income of $54,166, he had a 91.4% share of the
parties’ total adjusted income.1 Father’s presumptive child support amount was
$3,051.83. This amount represents $2,802.32, or 91.4% of $3,066, the
maximum basic child support amount for two children set by OCGA § 19-6-15
(o), plus an upward adjustment of $416.18 and a downward adjustment of
$166.67 for expenses that are not at issue here. The trial court then applied a
$2,000 upward deviation based on Father’s high income.2 The spaces provided
1
On appeal, Father does not challenge the trial court’s findings as to his gross income. At
trial, the parties disputed Father’s income based largely on how to treat his stock options. Father
presented testimony and paystubs indicating that his salary as an executive, plus bonuses, gave him
a monthly gross income of about $28,000, or about $336,000 annually. Mother, however, presented
tax documents showing that Father’s company also gave him regular grants of stock options, which
made his gross annual income 674,603.52 in 2010, $762,516.59 in 2011, and $857,530.09 in 2012.
She also submitted Father’s W-2 form for 2011, which showed that he received $639,573.38 in
compensation.
2
The schedule of basic child support obligations in § 19-6-15 (o) lists the basic child support
obligations for parents with a combined adjusted income of up to $30,000 per month ($360,000 per
year). OCGA § 19-6-15 (i) (2) (A) says that when the combined adjusted income of the parents
exceeds $30,000 per month,
the court shall set the basic child support obligation at the highest amount allowed
2
on the worksheet for the factual findings necessary to support a deviation,
however, were left blank.3 The divorce order reserved the issue of attorney fees,
so it was not yet a final judgment.
On April 10, 2013, Father filed a motion to amend the divorce order,
alleging, among other things, that the high-income deviation was not supported
by the evidence and that the trial court failed to make the findings required to
support the deviation. On July 10, 2013, the court denied the motion to amend
on the ground that it was filed outside the term of court in which the order was
rendered, which expired at the end of December 2012. On July 11, 2013, the
court entered an order granting attorney fees to Mother. Father then filed a
timely motion for new trial and a motion under OCGA § 9-11-60 (d) to set aside
the divorce order as well as the order denying his motion to amend the divorce
by the child support obligation table but the court or the jury may consider upward
deviation to attain an appropriate award of child support for high-income parents
which is consistent with the best interest of the child.
3
The worksheet says, “No Deviations are permitted under the law unless all three questions
below . . . have been answered.” The questions that follow are: “Would the presumptive amount be
unjust or inappropriate? Explain.”; “Would deviation serve the best interests of the children for
whom support is being determined? Explain.”; “Would deviation seriously impair the ability of the
CUSTODIAL Parent or NONPARENT Custodian to maintain minimally adequate housing, food
and clothing for the children being supported by the order and to provide other basic necessities?
Explain.”
3
order, repeating, among other things, his claim that the high-income deviation
was not supported by the evidence or the required findings. On October 4,
2013, after an evidentiary hearing for which there is no transcript in the record,
the trial court denied Father’s motions as to all claims except his child support
claim, on which the court deferred ruling.4
On December 5, 2013, the trial court amended the December 2012 divorce
order to add the following:
The Court finds as a matter of fact that [Father] earned
approximately $674,000.00 in 2010 and approximately $639,573.00
in 2011. Thus, [Father’s] average monthly income for those years
was approximately $54,732.00. The Mother earns approximately
$5,097.00 as a public school teacher in the Gwinnett County Public
Schools. The Court thereby finds as a matter of fact that a high
income deviation is warranted both by the respondent’s high
income and by the disparity in the parties’ incomes. The Court
finds that, pursuant to O.C.G.A. Sec. 19-6-15, the amount of the
presumptive amount of child support would be inappropriate and
that the best interest of the children will be served by deviation due
to the respondent’s high income, said deviation being the $2,000.00
that the Court assessed over and above the $3,051.83.
Father filed a timely discretionary application seeking to appeal the now-
4
On November 4, 2013, Father filed a discretionary application to appeal the divorce order,
which this Court dismissed on November 19, 2013, on the ground that the divorce order was not a
final judgment because the trial court had deferred ruling on the child support issue and Father had
not followed the procedures required for an interlocutory appeal. See OCGA § 5-6-34 (b).
4
final judgment of divorce, and in particular the December 2013 amendment. We
granted the application and directed the parties to address whether the trial court
erred by failing to make sufficient findings in support of its deviation from the
presumptive amount of child support under OCGA § 19-6-15 (c) (2) (E) and (i).
2. OCGA § 19-6-15 (c) (2) (E) says that if the trial court determines
that a deviation from the presumptive child support amount is applicable, the
court shall include in the final divorce judgment “written findings of fact” that
must set forth:
(i) The reasons the court . . . deviated from the presumptive amount
of child support;
(ii) The amount of child support that would have been required
under this Code section if the presumptive amount of child support
had not been rebutted; and
(iii) A finding that states how the court’s . . . application of the child
support guidelines would be unjust or inappropriate considering the
relative ability of each parent to provide support and how the best
interest of the child who is subject to the child support
determination is served by deviation from the presumptive amount
of child support . . . .5
5
OCGA § 19-6-15 (i) (1) (B) similarly provides:
When ordering a deviation from the presumptive amount of child support, the
court . . . shall consider all available income of the parents and shall make written
findings . . . that an amount of child support other than the amount calculated is
reasonably necessary to provide for the needs of the child for whom child support is
being determined and the order . . . shall state:
(i) The reasons for the deviation from the presumptive amount of child
5
The final divorce judgment in this case, which includes the original
divorce order, its amendment, and the associated child support worksheet, meets
the first two of these three requirements. The amended order states “[t]he
reasons the court . . . deviated from the presumptive amount of child support”
by making findings as to Father’s and Mother’s incomes – which show that their
combined gross income was nearly double the $30,000 per month maximum
accounted for in the statutory schedule and that Father’s income is more than ten
times what Mother earns – and explaining that “a high income deviation is
warranted both by [Father’s] high income and by the disparity in the parties’
incomes.” And the worksheet lists “[t]he amount of child support that would
have been required” absent the deviation – $3,053.87 per month.
The trial court failed, however, to set forth findings that satisfy the third
statutory requirement. Although the court recited that “the presumptive amount
support;
(ii) The amount of child support that would have been required under this
Code section if the presumptive amount of child support had not been
rebutted; and
(iii) How, in its determination:
(I) Application of the presumptive amount of child support
would be unjust or inappropriate; and
(II) The best interest of the child for whom support is being
determined will be served by deviation from the presumptive
amount of child support.
6
of child support would be inappropriate and that the best interest of the children
will be served by deviation due to the respondent’s high income,” the court
failed to explain “how the . . . application of the child support guidelines would
be unjust or inappropriate” and “how the best interest of the child . . . is served
by deviation from the presumptive amount of child support.” OCGA § 19-6-15
(c) (2) (E) (iii) (emphasis added). Accord OCGA § 9-6-15 (i) (1) (B) (iii).
A fundamental purpose of the child support guidelines is “to achieve the
state policy of affording to children of unmarried parents, to the extent possible,
the same economic standard of living enjoyed by children living in intact
families consisting of parents with similar financial means.” OCGA § 19-6-15
(c) (1). Mother argues that this codified purpose combined with the trial court’s
written findings regarding Father’s and Mother’s incomes in the two years
preceding the original divorce order implies a finding that the $2,000 high-
income deviation added by the court is appropriate and in the best interest of the
children, because otherwise Mother would not be able to provide the same
economic standard of living the children enjoyed when supported by both
parents’ income. This implication may be supported by the reasonable
assumption that, in the absence of evidence to the contrary, the basic amount of
7
child support for families with a combined income of $30,000 per month – the
maximum income for which the guidelines set a basic child support obligation
– will not afford the “same economic standard of living” enjoyed by the children
whose best interest is at issue here, who previously lived in a household with a
combined income of almost $60,000 per month.6
When reviewing deviations from the guidelines the General Assembly has
enacted for child support determinations, however, we cannot rely on
implications or our own assumptions. The trial court’s written findings must
connect the dots to explain – if this is, in fact, why the court deviated – that
applying the presumptive amount of child support would be inappropriate here
because it would result in a substantial decrease in the children’s standard of
living and that the $2,000 high-income deviation is in the best interest of the
children because it will give them, “to the extent possible, the same economic
standard of living enjoyed by children living in intact families” with parents
earning about $60,000 per month.
Because the trial court failed to make all of the necessary written findings,
6
Indeed, if the child support award were calculated again using only the portion of the
parties’ income exceeding $30,000 per month ($29,829), Father would owe another $2,795 – more
than the deviation the trial court applied.
8
we must reverse the child support award made in the divorce order as amended
and remand the case for the court, if it is to apply a high-income or other
deviation, to first make written findings that explain how the application of the
presumptive child support amount would be unjust or inappropriate considering
the relative ability of each parent to provide support and how the best interest
of the children is served by the deviation. See Strunk v. Strunk, 294 Ga. 280,
282 (754 SE2d 1) (2013) (“Because the trial court failed to make all of the
necessary findings of fact required by the statute, we reverse the judgment
related to this issue and remand for the trial court to redetermine the child
support award and support any [ ] deviation with the mandatory written
findings.”).7 We therefore do not reach Father’s second enumeration of error –
7
The dissent would overlook the trial court’s failure to comply with the literal requirements
of the child support statute. In a long line of precedents, however, this Court has insisted that trial
courts fully comply with the statutory prerequisites for deviations, even when ensuring such
compliance requires extending the proceeding and may have a de minimis effect on the amount of
child support ultimately awarded.
Since the revised child support guidelines took effect in July 2008, this Court has
repeatedly emphasized the statute’s clear directive that the[] written findings must
be included in the final child support order if a deviation is made. We have described
the written findings as “mandatory” and held that, when any of the required findings
are omitted, we have no choice but to “reverse the trial court’s judgment and remand
th[e] case to the trial court for further proceedings.” Holloway v. Holloway, 288 Ga.
147, 149 (702 SE2d 132) (2010). Accord Stowell v. Huguenard, 288 Ga. 628, 632
(706 SE2d 419) (2011) . . . ; Turner v. Turner, 285 Ga. 866, 867 (684 SE2d 596
(2009) . . . . We have reversed child support orders even when we presumed that the
9
his claim that the evidence did not justify the application of a high-income
deviation – although we note that we did not grant his discretionary application
to review that issue and that the evidence in the record appears to support such
a deviation. See Black v. Black, 292 Ga. 691, 697 (740 SE2d 613) (2013)
(explaining that we “‘review the decision to deviate, or not to deviate, from the
presumptive amount of child support under the abuse of discretion standard’”
and in so doing, we “‘review any findings based on disputed facts or witness
credibility under the clearly erroneous standard’” (citation omitted)). See also
Fine v. Fine, 281 Ga. 850, 852-853 (642 SE2d 698) (2007) (explaining that
where there is no transcript of an evidentiary hearing, this Court will presume
evidence supported the trial court’s actions because there was no transcript of the
proceedings, see Spurlock v. Dept. of Human Resources, 286 Ga. 512, 515 (690
SE2d 378) (2010) (“‘Even presuming the evidence supported the trial court’s actions,
we must first have the required findings of fact for review so that we know that the
court considered the correct factors in exercising its discretion.’”), and even when the
amount of the deviation could be characterized as de minimis, see Holloway, 288 Ga.
at 148-149 (reversing and remanding where the final child support order required
payments of only $18 less than the presumptive amount of $1,018, because the trial
court did not include the written findings necessary to support the deviation).
Brogdon v. Brogdon, 290 Ga. 618, 623-624 (723 SE2d 421) (2012). See also Black v. Black, 292
Ga. 691, 698 & n.7 (740 SE2d 613) (2013) (remanding in part for failure to make findings in support
of $27 per month deviation); Walls v. Walls, 291 Ga. 757, 761-762 (732 SE2d 407) (2012)
(remanding in part for failure to make findings to support a $83.20 per month deviation),
disapproved of on other grounds, McCarthy v. Ashment-McCarthy, 295 Ga. 231, 233 n.1 (758 SE2d
306) (2014).
10
that evidence was presented to support the trial court’s ruling). The remaining
provisions of the divorce judgment, which are not challenged by either party, are
affirmed.
In closing, we note that, on appeal, Mother has articulated how the
application of the presumptive child support amount would be inappropriate and
how the best interest of the children is served by a high-income deviation in this
case. That reasoning, however, is not similarly articulated in the trial court’s
original or amended order, and Mother never offered it to the trial court, in the
form of proposed findings of fact or otherwise, even when Father repeatedly
focused on the absence of the required deviation findings in the motions he filed
after the original divorce order was entered. To avoid the delay and expense of
appeals and proceedings on remand, parties asking trial courts to apply
deviations in child support awards should assist busy judges in ensuring that all
of the written findings necessary to support such deviations have been included
in the child support judgment.
Judgment affirmed in part and reversed in part, and case remanded with
direction. All the Justices concur, except Hunstein, J., who dissents.
11
S14F1711. FLADGER v. FLADGER.
HUNSTEIN, Justice, dissenting.
The majority adopts a needlessly literalistic construction of the child
support statute in reaching a conclusion that will have no practical effect other
than to prolong this divorce litigation. The result here takes the worthy goal of
statutory compliance to the extreme and, in so doing, delays resolution of the
parties’ divorce and disserves the children whose best interests the majority
claims to be protecting. I see no need for the trial court to further “connect the
dots” as to its reasoning supporting the deviation, which is patently obvious
from the written findings the trial court made in the December 2013 amendment.
Accordingly, I must respectfully dissent.