DocketNumber: S13A1217
Citation Numbers: 294 Ga. 280, 749 S.E.2d 701
Judges: Hunstein
Filed Date: 11/25/2013
Status: Precedential
Modified Date: 1/12/2023
Monica R Strunk and Martin B. Strunk were married in 1996 and had three children before divorcing in 2008. The husband sought a downward modification of child support in 2009, which the trial court granted in November 2012. In this direct appeal, the wife challenges five of the trial court’s rulings related to child support. We uphold the trial court’s decision granting the downward modification, with the exception of the grant of a $200 travel deviation to the husband, but reverse the part of the order specifying how the husband was to satisfy the $96,000 he owed in back child support. Accordingly, we affirm in part and reverse in part.
Following a bench trial in the initial divorce action, the trial court entered a final judgment on September 12, 2008, awarding the wife custody of the three children. In its order, the trial court imputed an annual income of $75,000 to the husband and determined that the husband earned 80 percent of the couple’s combined income. The husband was ordered to pay $2,001.60 per month in child support and $400 per month in permanent alimony for three years. After the husband failed to make child support or alimony payments, he was incarcerated for five months in 2009.
The husband filed this modification action in May 2009 seeking a downward modification of child support, modification of visitation, and gradual change in custody. After the wife garnished his wages in the fall of 2011, the husband amended his complaint and asked the trial court to also release him from the continuing garnishment for support. In October 2012, at the time of the hearing, the husband had remarried, had a new baby and three stepchildren, and was employed as a mortgage loan processor in Florida for an annual base salary of $48,000. The parties consented at the hearing to a total arrearage of $96,000 in child support, a withdrawal of the husband’s contempt action regarding personal property, and joint legal custody of the children with the wife designated as the primary physical custodian.
1. The wife initially challenges as clearly erroneous the trial court’s determination that there has been a substantial change in the husband’s income and financial status since the divorce.
Our domestic relations statutes provide that a spouse may seek to modify the award of alimony or child support based on a change in either spouse’s income and financial status or in the needs of the child. See OCGA §§ 19-6-19 (a), 19-6-15 (k) (1). We review the trial court’s decision in a modification action for abuse of discretion, see Marsh v. Marsh, 243 Ga. 742 (256 SE2d 442) (1979), and “will not set aside the trial court’s factual findings unless they are clearly erroneous.” Eldridge v. Eldridge, 291 Ga. 762 (1) (732 SE2d 411) (2012) (citation and punctuation omitted). In its order, the trial court found that the husband was employed in the mortgage industry; the industry has been unstable, downsizing, and affected by the recession; and the husband had made minimal efforts until recently to gain employment. The trial court further found that the husband’s income and financial status have now become stable and it was reasonable for the husband to have accepted a job in Florida given the changes and uncertainty in the mortgage industry, but it was unreasonable for the husband to have changed employers and voluntarily accepted a lower base salary in exchange for the chance of advancement. Therefore, the trial court imputed an income of $52,500 to the
2. The wife next contends that the trial court abused its discretion by failing to make the required factual findings in granting the husband a $200 deviation for travel. Under the child support statute, the trial court must “enter a written order specifying the basis for the modification, if any, and shall include all of the information set forth in paragraph (2) of subsection (c) of this Code section.” OCGA § 19-6-15 (k) (4). Subsection (c) (2) requires written findings offactthat a deviation applies and the reasons for the deviation, the amount of child support that would have been required if the deviation were not granted, how the application of the child support guidelines “would be unjust or inappropriate considering the relative ability of each parent to provide support,” and how the deviation serves the best interest of the child. Id. at (c) (2) (E) (iii). In this case, the trial court’s order states the reasons why the trial court rejected the husband’s request for a $700 travel deviation per month, but fails to state why it departed from the presumptive child support amount to award the husband any travel deviation. 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 travel deviation with the mandatory written findings. See Eldridge v. Eldridge, 291 Ga. at 764; Brogdon v. Brogdon, 290 Ga. 618 (5)(b) (723 SE2d 421) (2012).
3. The wife alleges it was clear error for the trial court to reduce the child support award by allowing a credit of $300 per month for health insurance. OCGA § 19-6-15 (c) (2) (D) provides that the trial court may order that a child be covered under health insurance if the insurance “is reasonably available at a reasonable cost” to the parent. The husband testified that he was paying for health insurance for his children through COBRA, and it would cost approximately $700 a month for a family plan or $100 per child once he was on his employer’s company policy. The trial court did not abuse its discretion in requiring the husband to provide health insurance for the children and giving him a $300 credit for it. See Simmons v. Simmons, 288 Ga. 670 (4) (706 SE2d 456) (2011).
4. The wife challenges the trial court’s decision to grant the husband a credit as a result of the newborn living in his home, which resulted in a downward adjustment to the husband’s monthly gross income, on the grounds that he failed to present documentary evidence of the parent-child relationship. See OCGA § 19-6-15 (f) (5) (C).
5. Finally, the wife contends that the trial court erred as a matter of law in specifying the way the husband was to satisfy the arrearage in back child support and in failing to include in its order the required language on garnishment under OCGA § 19-6-30 (a). On motion for reconsideration, the wife clarifies that she is challenging the trial court’s authority in a modification action to fix the time and manner of back child support payments.
A husband or wife has a variety of remedies available for enforcing and collecting a child support order. See Dept. of Human Resources v. Chambers, 211 Ga. App. 763 (2) (441 SE2d 77) (1994). “ ‘The remedies of action for contempt, execution by writ of fi. fa., garnishment, URESA [Uniform Reciprocal Enforcement of Support Act], and an action to set aside fraudulent conveyances are available to the complaining spouse, either singly or concurrently.’ ” Brookins v. Brookins, 257 Ga. 205, 207 (2) (357 SE2d 77) (1987) (citations omitted); Herring v. Herring, 138 Ga. App. 145 (2) (225 SE2d 697) (1976) (wife may pursue garnishment and contempt actions simultaneously to collect payments owed under divorce judgment). The complaining spouse is not required to make an election of remedies, see Lipton v. Lipton, 211 Ga. 442 (1) (86 SE2d 299) (1955), and a trial court may not limit the remedies available to collect or enforce a child support order. See Hill v. Hill, 219 Ga. App. 247 (464 SE2d 656) (1995); Chambers, 211 Ga. App. at 766. In addition, a trial court may not order the postponement of payment of the child support until the child reaches the age of 18. Id. “[M]inor children are entitled to support during their minority.” Conley v. Conley, 259 Ga. 68, 70 (5) (377 SE2d 663) (1989) (citation and punctuation omitted).
In this modification action, we conclude that the trial court exceeded its authority in addressing how the husband was to satisfy the child support arrearage. The husband relies on case law related
As for the trial court’s exclusion of the mandatory garnishment provision,
Judgment affirmed inpart and reversed in part, and case remanded with direction.
The husband also filed a motion for contempt, and the two actions were consolidated for trial. The issues raised in the contempt motion are not part of this appeal.
OCGA § 19-6-30 (a) requires every child support order, including modification orders, to contain the following provision:
Whenever, in violation of the terms of this order there shall have been a failure to make the support payments due hereunder so that the amount unpaid is equal to or greater than the amount payable for one month, the payments required to be made may be collected by the process of continuing garnishment for support.