Marlowe v. Marlowe ( 2015 )

297 Ga. 116FINAL COPY
S15A0573. MARLOWE v. MARLOWE.
BENHAM, Justice.
The parties to this case were divorced in 2007, and a child support order
was entered as part of the final judgment pursuant to which appellee Joseph
Andrew Marlowe (Husband) was to pay appellant Ronni Green Marlowe (Wife)
$992 per month for support of their three children. In 2013, Husband filed a
petition to modify the original child support award downward on the ground that
his income had diminished. Wife counterclaimed, seeking an upward
modification on the ground that she now had work-related child care expenses
that were not considered in the original child support award since at the time of
the original award the children were not attending daycare. The trial court
modified Husband’s child support obligation downward to $771 per month.
This Court granted Wife’s application for discretionary appeal for the purpose
of determining whether the trial court abused its discretion in determining the
amount of child support due in light of OCGA § 19-6-15. For the reasons set
forth below, we affirm in part and vacate in part.
1. Wife first asserts the trial court applied the wrong figure from the
Georgia Schedule of Basic Child Support Obligations, set forth at OCGA § 19-
6-15 (o), for the support of the three children. We agree. The Child Support
Addendum attached to the trial court’s order recites that support is to be
provided for three children. Applying the schedule for the combined gross
income of these parents for three children, the basic child support obligation
from the table in OCGA § 19-6-15 (o) is $1,316. The worksheet on which the
trial court’s award is based shows a figure of $1,135, which is the figure from
the table for two children. This portion of the order is vacated and, on remand,
the trial court is instructed to revise its child support award accordingly by
considering the proper basic child support for three children and any other
relevant factors that may impact its final child support determination.
We find no error, however, in the trial court’s adjustments for work-
related child care expenses entered on Schedule D of the Child Support
Worksheet.1 Testimony at the hearing established that the oldest child did not
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At least, we find no error to Wife’s disadvantage; Husband asserts that an error was made
in Wife’s favor with respect to adjustments for work-related child care expenses, but he does not
challenge this finding on appeal.
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require work-related child care expenses because he received after-school and
summer day care from Husband and his family. Testimony also showed that
Wife received assistance from a government program for part of the child care
expenses, after which she paid the remaining $65 per week out-of-pocket for
child care expenses for both the younger children during the school year, and
$105 per week for both children during the summer months. Accordingly, the
evidence shows the trial court’s figure of $4,020 for annual child care costs used
in calculating the child support award was supported by the evidence and did not
prejudice Wife.2
2. Wife asserts the trial court abused its discretion by failing to impute
income to Husband or to find he was willfully underemployed. Indeed, “the
trial court is empowered to impute income for willful or voluntary
unemployment or underemployment. See OCGA § 19-6-15 (f) (4) (D) . . . .”
Friday v. Friday, 294 Ga. 687, 689 (1) (755 SE2d 707) (2014). Evidence was
presented that Husband had earned significantly more in wages in past jobs than
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If, in the future, Wife receives less in child care assistance as a result of her no longer
meeting the criteria for assistance, as her testimony showed she surmised, then avenues are available
to Wife to seek a further modification of the child support award. At the time of the trial court’s
order, however, the award appears to meet or exceed the evidence presented of current out-of-pocket
child care costs.
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in his current employment. At the time the original child support order was
entered, Husband’s adjusted gross monthly income was found to be $2,904,
whereas in the modification order now on appeal, his income was found to be
$2,166.67. Husband testified that, since the divorce, he had earned as much as
$22 per hour, at which point he was employed as an electronic access control
systems technologist. Testimony also established he was a certified law
enforcement officer, at which he would earn significantly more than he currently
earns, and that in the past he made money on the side by repairing computers
and installing electronic equipment for small businesses. The evidence shows
Husband voluntarily terminated some of the jobs he has held in the time since
the original child support order was entered.
Relying upon Galvin v. Galvin,3 Wife asserts that even if Husband’s loss
of income was involuntary, this alone is insufficient to prevent the trial court
from imputing income to him where, as here, she claims, “there is evidence of
prolonged unemployment and a dearth of evidence of [Husband’s] efforts to
obtain employment.” In Galvin, this Court affirmed the trial court’s
modification order that was based, in part, upon the imputation of income to a
3
288 Ga. 125, 126 (2) (702 SE2d 155) (2010).
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father who had remained unemployed for over two years.4 The record in this
case, however, fails to show prolonged unemployment and, in fact, Husband
was employed at the time of the hearing in a job he had held for over one year.
The record contains evidence of Husband’s efforts to obtain employment at
those times in the past in which he had been unemployed either voluntarily or
involuntarily.
By way of explaining his employment choices, Husband testified that, as
a result of the economic downturn since the date of the final divorce decree, the
last job he held in the access control systems industry paid only $2.50 more per
hour than his current job, and that he had voluntarily resigned from that position
because the job required him to work out of state, thus requiring him to travel
to Georgia on weekends at his own expense in order to spend time with his
children. He testified, without dispute, that employment in this field was
currently difficult to find. He further testified that his current position, paying
$12.50 per hour, offered him a steady and stable job with normal working hours
and weekends off, allowing him to spend time with his children and relieving
him from worry about being laid off for lack of work. According to Husband’s
4
Id. at 125, n. 1.
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testimony, he had not pursued a job in law enforcement because he did not
expect he would be able to control his schedule. He offered no reason for not
pursuing additional income by repairing computers in his spare time, other than
to point out that he was employed full time.
Past income, alone, is not conclusive evidence of earning capacity. See
Herrin v. Herrin, 287 Ga. 427, 428 (696 SE2d 626) (2010) (reversing the trial
court’s upward modification of child support based upon a finding of
underemployment that was not supported by the evidence). Other factors to be
considered include a party’s education, training, and specialized skill; evidence
of suppression of income; the party’s assets and liabilities; and other funds
available to the party for paying child support. Id. Arguably, in this case
conflicting evidence was presented relating to other factors the trial court could
consider when making its determination on the parties’ requests for
modification. Evidence was presented regarding Husband’s training and skills
from which it could be found that Husband was capable of earning more income
than he was currently making, in a job that did not appear to require any
specialized skill. No evidence was presented regarding other assets or funds
available to Husband from which he could continue to pay the original amount
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of monthly child support award. And Husband’s testimony regarding the
reasons for his career choices and the decline in his earnings refuted Wife’s
assertion that he had intentionally suppressed his income in order to avoid his
child support obligation. “[T]his Court will not set aside the trial court’s factual
findings [in a child support proceeding] unless they are clearly erroneous, and
this Court properly gives due deference to the opportunity of the trial court to
judge the credibility of the witnesses.” (Citation and punctuation omitted.)
Autrey v. Autrey, 288 Ga. 283, 284-285 (2) (702 SE2d 878) (2010); see also
Walton v. Walton, 285 Ga. 706 (2) (681 SE2d 165) (2009). Given the evidence
presented in this case, we cannot say that the trial court’s findings regarding
Husband’s earning capacity were clearly erroneous. Instead, record evidence
supports these findings, and no abuse of discretion in granting Husband’s
petition for downward modification is shown. See Strunk v. Strunk, 294 Ga.
280, 282 (1) (754 SE2d 1) (2013).
Judgment affirmed in part and vacated in part, and case remanded with
direction. All the Justices concur.
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Decided May 11, 2015.
Domestic relations. Henry Superior Court. Before Judge McGarity.
Nathaniel M. Smith, for appellant.
Gregory A. Futch, for appellee.
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