MOORE v. McKINNEY , 335 Ga. App. 855 ( 2016 )

FOURTH DIVISION
RAY, J.
MCMILLIAN and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
FEBRUARY 29, 2016
In the Court of Appeals of Georgia
A15A1905. MOORE v. McKINNEY. PE-091
PETERSON, Judge.
The trial court granted Anthony Moore’s petition for modification of the child
custody and support terms that had been established by a divorce decree. Moore,
proceeding pro se, appeals and generally challenges the trial court’s determinations
regarding Janeene McKinney’s child support obligations and other amounts owed to
Moore. Because we conclude that the trial court made several errors in this respect,
we vacate and remand for further proceedings.
The record1 shows that Moore and McKinney were divorced in 2002, when
their children M. M. and D. M. were eight and four years old, respectively. McKinney
was granted primary physical custody of the children, and Moore was ordered to pay
child support until each child turned 18 years old or until the child finished secondary
school, whichever came later, but in any case ending when the child turned 20 years
of age. McKinney was required to provide health insurance coverage for the children,
and the parties agreed to share the uninsured medical expenses for the children.
In January 2014, after McKinney physically abused the children, the children
moved out of their mother’s house, filed and obtained temporary protective orders,
and moved in with Moore. Both children signed affidavits of election indicating their
desire to live with Moore on a full-time basis. In February 2014, Moore petitioned to
modify physical custody and child support.
Thereafter, the parties entered into a temporary consent order, giving Moore
primary custody of D. M.2 Pursuant to the consent order, the parties agreed that
1
McKinney did not file a responsive brief in this appeal; therefore, she is
deemed to have admitted the statement of facts as set out by Moore in his brief, to the
extent that the statement of facts is supported by the record. See, e.g., Payless Car
Rental System, Inc. v. Elkik, 306 Ga. App. 389, 390 n.4 (702 SE2d 697) (2010); see
also Court of Appeals Rule 25(b)(1).
2
At this time, M. M. was 19 years old, but was still in high school.
2
McKinney was required to provide and pay for medical, vision, and dental insurance
for the children; to continue equally to share uninsured medical expenses; to take the
children to a therapist or psychologist; and to split the out-of-pocket costs and
expenses for the children’s therapy until each child graduated from high school. The
trial court terminated Moore’s child support obligations effective January 31, 2014,
and reserved the issues of McKinney’s child support liability starting February 1,
2014.
Moore subsequently incurred several health care expenses for the children
while they were living with him. Moore provided McKinney with copies of the
receipts and requested that she pay her share of the expenses. McKinney refused to
reimburse Moore, and he filed a motion for contempt against McKinney for failing
to comply with the consent order.
Following a two-day hearing, the trial court issued a final order holding
McKinney in contempt and awarding physical custody of D. M. to Moore. The trial
court ordered McKinney to provide health insurance and pay $117 a month in child
support for D. M. until he reached 18 years of age, pay $1,287 in back child support,
and pay $15,396.50 in attorney fees. This appeal followed.
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1. Moore argues that the trial court erred in failing to order McKinney to
reimburse him for his child support payment in January 2014 because the children
started living with him in that month. We find that the trial court erred, but not for the
reasons suggested by Moore.
The February 18, 2014 temporary consent order provided that Moore’s
obligations to pay child support “terminated retroactively to January 31, 2014.” It is
well settled that a child support judgment is enforceable until modified, vacated, or
set aside. Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279) (1989). Although
a permanent judgment of child support can be temporarily modified pending a final
order in a modification action, OCGA § 19-6-19(c), a child support judgment cannot
be modified retroactively. Jarrett, 259 Ga. at 561 (1). “A child support obligation
may be modified on a prospective basis only[.]” Rose v. Thorpe, 240 Ga. App. 834,
834 (525 SE2d 381) (1999).
The temporary consent order, entered on February 18, 2014, could modify child
support obligations only on a prospective basis. See id. The trial court could not order
McKinney to reimburse Moore for the January 2014 child support payment because
this would effectively be a retroactive modification of McKinney’s child support
obligations. Similarly, the trial court could not order Moore to stop making child
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support payments “retroactive to January 31, 2014,” and the trial court erred by
making this retroactive modification. Furthermore, because the trial court could not
retroactively change Moore’s child support obligations to January 31, 2014, it
necessarily miscalculated the number of months that had passed in determining the
amount of back child support owed by McKinney.
2. We also find that the trial court erred, as Moore alleges, in failing to require
the parties to share uninsured medical expenses for D. M.
OCGA § 19-6-15(h)(3)(A) provides that:
The child’s uninsured health care expenses shall be the financial
responsibility of both parents. The final child support order shall
include provisions for payment of the uninsured health care expenses;
provided, however, that the uninsured health care expenses shall not be
used for the purpose of calculating the amount of child support. The
parents shall divide the uninsured health care expenses pro rata, unless
otherwise specifically ordered by the court.
(emphasis added). The statute makes clear that both parents are responsible for a
child’s uninsured health care expenses and requires the trial court to include
provisions for payment of these expenses. The trial court erred by failing to include
these provisions in its final order.
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In light of the above errors, we must vacate the trial court’s order regarding the
parties’ child support obligations. We need not consider Moore’s other enumerations
of error, because these arguments may be considered on remand,3 and “[t]he cardinal
principle of judicial restraint – if it is not necessary to decide more, it is necessary not
to decide more – counsels us to go no further.” PDK Labs. Inc. v. U.S. D.E.A., 362
F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring); see also Gowins v. Gary,
288 Ga. App. 409, 414 (2) (654 SE2d 162) (2007) (after vacating child support award
on one ground, declining to address other enumerations of error). Accordingly, we
vacate and remand for further proceedings.
Judgment vacated and case remanded. Ray and McMillian, JJ., concur.
3
We note that, following entry of the final order, Moore filed a motion for
reconsideration raising many of the same arguments he raises on appeal. While the
trial court was precluded from ruling on the motion once Moore filed his notice of
appeal, see Fortson v. Hotard, 299 Ga. App. 800, 804 (3) (684 SE2d 18) (2009),
nothing precludes the trial court from considering those arguments on remand.
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