Grenevitch v. Grenevitch , 285 Ga. 509 ( 2009 )

Melton, Justice.

Larry Grenevitch (“Husband”) appeals the trial court’s dismissal of his petition to modify child support. Because a state of facts could be proven to support Husband’s claim that his child support obligation for his eldest child ceased once the child turned 18, we reverse the trial court’s dismissal of Husband’s petition. See Ledford v. Meyer, 249 Ga. 407, 408 (2) (290 SE2d 908) (1982) (A motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that a party “would not be entitled to relief under any state of facts that could be proven in support of the claim.”) (citation and punctuation omitted).

The record reveals that Husband and his wife, Elizabeth Grenevitch (“Wife”), were divorced pursuant to a December 26, 2007 final judgment and decree of divorce that incorporated terms expressly agreed to by the parties. Under the decree, Wife was awarded primary custody of the parties’ four minor children, and Husband was obligated to pay $1,614.70 in monthly child support, with such payments to be made in equal installments on the first and sixteenth of each month. The child support payments would be

due and payable in like fashion . . . until such time as the youngest minor child dies, marries, enters the military, attains the age of eighteen, or is otherwise emancipated, whichever first occurs; provided, however, that in the event that any of the minor children turn 18 years of age while still in high school, [Husband’s] child support obligations shall continue for that child until such time as the child graduates from high school, but in no event to extend past the child’s twentieth birthday.

(Emphasis supplied.)

Husband filed what he captioned as a “Complaint for Modification of Child Support.” In it, however, Husband specifically averred that because “[t]he parties’ eldest child . . . has turned eighteen years old . . . [Husband’s] child support obligation for said child has ceased.” Thus, the question presented in this case is whether, under any state of facts involving the parties’ eldest child turning 18, Husband’s child support obligations for that child could cease. The plain language of the final divorce decree indicates that the answer to that question is unequivocally yes. Specifically, the decree states that “in the event that any of the minor children turn 18 years of age while still in high school, [Husband’s] child support obligations shall continue for that child until such time as the child graduates from high school.” (Emphasis supplied.) Accordingly, Husband would have a continuing child support obligation for any 18-year-old child of his who was still in high school. If that 18-year-old child was no longer in high school, however, Husband’s child support obligation for that child would cease. In this connection, a state of facts could have been proven that would have ended Husband’s obligation to pay child support for the eldest child who turned eighteen. Specifically, if the 18-year-old child were no longer in high school, Husband would have no further obligation to pay child support for that child. Indeed, the decree is clear in this regard and there is no ambiguity here. The parties contemplated a change in Husband’s child support obligations in the event that their eldest child turned 18 and was no longer in high school, and nothing in the final decree shows a contrary intention by the parties.

Interestingly, Husband’s counsel pointed this fact out to the trial court at the hearing on Wife’s motion to dismiss, stating that “[t]he child [in question] turned 18 [and] is no longer in high school. [The decree] very specifically says the child support shall cease at the time when the child . . . does turn 18.” Unfortunately, by erroneously dismissing Husband’s complaint, the trial court never gave counsel an opportunity to present evidence showing that the child who had turned 18 was no longer in high school, which would have ended Husband’s child support obligation for that child.

In light of the possibility that a state of facts could have been proven to show that Husband’s obligation to pay child support for the parties’ eldest child had ended, the trial court erred in dismissing Husband’s complaint for modification of child support.¹

Judgment reversed.

All the Justices concur, except Hunstein, P. J., who dissents.

1 In this regard, because Wife is not the prevailing party here, the trial court also was not authorized to award Wife attorney fees. OCGA § 19-6-15 (k) (5); Magnetic Resonance Plus v. Imaging Systems Intl., 273 Ga. 525 (3) (543 SE2d 32) (2001):