Hector Perez, Jr. v. Christina Cunningham ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 4, 2020
In the Court of Appeals of Georgia
A20A0601. PEREZ v. CUNNINGHAM. DO-019
DOYLE, Presiding Judge.
In this discretionary appeal, Hector Perez, Jr., seeks review of a trial court order
modifying his child support obligation. He contends that the trial court erred by
retroactively modifying his child support obligation and by improperly applying an
upward deviation based on his lack of parenting time without making sufficient
factual findings. For the reasons that follow, we vacate the trial court’s order and
remand with direction.
The material facts are undisputed. Perez and Christina Cunningham are the
unwed parents of one child who was born in June 2001. In June 2014, the trial court
entered a consent order, awarding Cunningham sole legal and physical custody of the
child. The court determined that Perez’s presumptive amount of child support was
$492.47 per month, but because Cunningham owed Perez a child support arrearage
of $7,632, the court awarded Perez a downward deviation in his support obligation.
Accordingly, the court ordered Cunningham to pay Perez $212 per month for 36
months to pay off the arrearage and ordered Perez to pay Cunningham $280 per
month until the child turned 18 years old, died, married, or otherwise became
emancipated.
Thereafter, on December 15, 2017, Cunningham filed a petition for
modification of child support. In it, she apparently argued that Perez’s income had
increased substantially and that he had failed to exercise any visitation with the child
since June 2014. Following a bench trial, the trial court determined that Perez’s
income was approximately $90,000 in 2017 and 2018, and he was living a
comfortable lifestyle, including trips abroad. Cunningham has been unemployed since
2015, and the trial court imputed a minimum-wage income to her. The court also
applied a parenting-time deviation in Cunningham’s favor in the amount of $300
because Perez had not exercised any visitation whatsoever. Based on these findings,
the trial court modified Perez’s child support obligation to $1,267 per month,
retroactive to the date of the modification petition. We granted Perez’s application for
discretionary review.
2
We review a trial court’s ruling on a petition to modify child support for abuse
of discretion,1 and we will uphold the factual findings underlying the ruling if they
are supported by any evidence.2 The trial court’s application of the law to the facts is
reviewed de novo.3
1. Perez argues that the trial court erred by retroactively modifying his child
support obligation. We agree.
It is well-established that “[a] child support judgment [cannot] not be modified
retroactively.”4 Nevertheless, in its order entered on January 18, 2019, the trial court
determined that Perez was responsible for paying the increased support obligation
beginning January 1, 2018, the month after Cunningham filed her modification
petition. Accordingly, the trial court ordered Perez to pay Cunningham an arrearage
of $12,831 to account for the time before the order was entered. Thus, the trial court’s
1
See Wright v. Wright, 246 Ga. 81, 83 (1) (268 SE2d 666) (1980).
2
See Gowins v. Gary, 288 Ga. App. 409, 410 (654 SE2d 162) (2007).
3
See Dept. of Human Resources v. Woodruff, 234 Ga. App. 513 (507 SE2d 249)
(1998).
4
(Punctuation omitted.) Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279)
(1989); see OCGA § 19-6-17 (e) (3) (“Any payment or installment of support under any
child support order is, on and after the date due . . . [n]ot subject to retroactive
modification.”).
3
increase of Perez’s child support obligation retroactive to the date of Cunningham’s
petition was contrary to law.5 Accordingly, we vacate the trial court’s modification
and remand for the court to enter a new order on a prospective basis from the date of
the final order, January 18, 2019.6
2. Perez also argues that the trial court erred by applying a parenting-time
deviation of $300 because Cunningham failed to present any evidence of additional
child-rearing expenses due to her additional parenting time and that the court failed
to make adequate findings of fact. We agree that the record appears unclear on this
question, and we remand for entry of appropriate factual findings.
A trial court is authorized to deviate “from the presumptive amount of child
support when special circumstances make the presumptive amount of child support
5
See Allen v. Ga. Dept. of Human Resources, 264 Ga. 119, 120 (441 SE2d 754)
(1994) (reversing an award because the trial court retroactively increased the child support
obligation to the date of the modification action); see also Galvin v. Galvin, 288 Ga. 125,
126 (1) (702 SE2d 155) (2010) (holding that the trial court did not err by refusing to make
a downward modification of child support retroactive to the date the father sought
modification because “[t]he modification of a support obligation payable in installments
pursuant to a judgment is effective no earlier than the date of the judgment of
modification”).
6
See, e.g., Allen, 264 Ga. at 120 (reversing an award and remanding to the trial court
with instruction to amend its order to make it prospective only).
4
excessive or inadequate” due to, inter alia, “visitation rights not being utilized.”7
Here, the trial court applied a parenting-time deviation in Cunningham’s favor in the
amount of $300 because Perez did not exercise visitation for the four and one-half
years leading up to the hearing. There was evidence to support this finding,8 but in
order to support such a deviation, the trial court:
shall make written findings or special interrogatory 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 or special interrogatory shall state: (i)
The reasons for the deviation 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) 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.9
7
OCGA § 19-6-15 (i) (2) (K) (i) (emphasis supplied).
8
See Gowins, 288 Ga. App. at 410 (noting that we will uphold the factual findings
underlying a support modification if they are supported by “any evidence”)
9
(Emphasis supplied.) OCGA § 19-6-15 (i) (1) (B).
5
In the instant case, the trial court determined that Perez’s presumptive amount
of child support was $967.49. With regards to the parenting-time deviation, the trial
court made no findings in the child support addendum or in its order. Similarly, in the
child support worksheet docketed in January 2019 and incorporated into the final
order, the court provided inadequate, single-word responses in the sections
corresponding to the written findings required by OCGA § 19-6-15 (i) (1) (B).10
Another worksheet from December 2017 appears in the record with more extensive
findings, but it appears that the court did not incorporate the 2017 findings into its
final order. In light of this conflicting record, and the explicit incorporation of
inadequate written findings in the January 2019 worksheet, we vacate the $300
parenting-time deviation and remand for the court to enter appropriate factual
findings, supported by the record, to support any deviation based on Perez’s failure
to engage in visitation.11 Any deviation shall be prospective from January 18, 2019.
10
For example, OCGA § 19-6-15 (i) (1) (B) (iii) requires a finding describing
“[h]ow, in [the court’s] determination: (I) [a]pplication of the presumptive amount of child
support would be unjust or inappropriate; and (II) [t]he best interest of the child for whom
support is being determined will be served by deviation from the presumptive amount of
child support.” The January 2019 worksheet simply states “yes” to both questions.
11
See generally Brogdon v. Brogdon, 290 Ga. 618, 624-625 (5) (b) (723 SE2d 421)
(2012) (holding that support award did not comply with the statute when it contained no
findings in support of deviation for extraordinary educational expenses, because it did not
6
Judgment vacated and case remanded with direction. McFadden, C. J., and
Hodges, J., concur.
explain “the reasons for the deviation, [i.e.] . . . how the application of the guidelines
would be unjust or inappropriate considering the relative ability of each parent to provide
support and how the best interest[s] of the children who are subject to this child support
determination is served by deviation from the presumptive amount of child support”)
(punctuation omitted); Wheeler v. Akins, 327 Ga. App. 830, 834 (3) (761 SE2d 383)
(2014).
7