Banciu v. Banciu

• Decision Date: 29 October 2007
• Docket Number: No. S07F1075.,S07F1075.
• Citation: Banciu v. Banciu, 652 S.E.2d 552, 282 Ga. 616 (Ga. 2007)
• Parties: BANCIU v. BANCIU.
• Court: Georgia Supreme Court

282 Ga. 616

652 S.E.2d 552

BANCIU v.BANCIU.

No. S07F1075.

Supreme Court of Georgia.

October 29, 2007.

Mary Aunita Prebula, Prebula & Associates, Duluth; Florence Johnson Lytle, Sugar Hill, for Appellant.

Mark Earle Layng, Lilburn, for Appellee.

HINES, Justice.

Alexandru N. Banciu("husband") appeals his final judgment and decree of divorce ("decree") from Estera Banciu("wife").¹For the reasons which follow, the judgment is affirmed and the case is remanded to the trial court for action consistent with the opinion.

The husband and wife filed separate actions for divorce on July 12, 2005, after more than 16 years of marriage.They consented to consolidation of the actions, with the husband as plaintiff.Prior to filing for divorce, the wife filed a petition for relief under the Family Violence Act, which was resolved by a July 19, 2005 consent protective order.The protective order directed, inter alia, that until August 22, 2005, or until further order of the court, the wife was awarded sole and exclusive use of the family residence and temporary custody of the parties' three minor sons with the husband having visitation; the husband was ordered to pay $500 semi-monthly as temporary support for the wife and $900 semi-monthly as child support, such payments commencing August 1, 2005 and continuing through August 22, 2005, or until further order of the court.

On September 8, 2005, the parties entered into a consent temporary order having essentially the same child support terms as the protective order.Subsequently, the superior court held hearings on other issues, including distributions of proceeds from sold properties, which resulted in two orders.The first order, entered on January 12, 2006, found that the parties realized net proceeds of $121,435.98 from the sale of certain property and directed that a portion of the proceeds be used to pay off some outstanding mortgage loans and potential capital gains taxes, and that the remaining monies be divided equally between the parties.The second order, entered on January 31, 2006, which was a consent order, awarded the wife $70,000 as consideration for her interest in certain real property in Florida owned by the parties.

The divorce action was called for trial on August 28, 2006, but there was no trial on that date; instead the parties held conferences in an attempt to resolve the case.²The superior court believed that the case was "announced settled."Asserting that the parties had reached a settlement of all issues, in September 2006, the wife submitted to the superior court a proposed final judgment and decree which she stated had been tendered to opposing counsel and the guardian ad litem and to which she had not received any objection or comment.But, the husband denied there was such an agreement, and the wife filed a motion to compel the settlement agreement.At the conclusion of a hearing on the motion, the superior court determined that it would conduct a bench trial on the issues of visitation, amount of child support, amount of alimony, the disposition of three remaining parcels of property, guardian ad litem fees, and attorney fees.Following a bench trial on November 21, 2006, the superior court entered a final judgment and decree on December 18, 2006.The decree awarded, inter alia, real and personal property; joint legal and physical custody of the minor children, with primary physical custody of the two older boys to the husband and primary physical custody of the youngest son to the wife; visitation; child support to be paid by the husband in the amount of $1,875 per month based upon findings that the husband's gross income was approximately at least $90,000 per year or at least $7,500 monthly and that the wife's gross income was $325 monthly;³ and $500 per month in alimony to the wife for a period of 36 months.

1.The husband contends that the superior court abused its discretion when it based the child support award on income imputed to him, and which was allegedly contrary to the evidence and without findings of fact, including that of gross income, sufficient to warrant such imputation.He argues that the only evidence of his income comes from his own testimony and documents which showed income of $4,000 per month as of the date of the bench trial, and that a figure above $48,000 per year is unsubstantiated speculation.But, that is not what the record shows.

The superior court made express findings of gross income regarding both parents.See former OCGA § 19-6-15;Esser v. Esser,277 Ga. 97, 586 S.E.2d 627(2003).As already noted, the court found that the husband's gross income was at least $90,000 per year or at least $7,500 monthly and that the wife's gross income was $325 monthly.As to the claim that there was no evidence to warrant an income figure in excess of $48,000, that is hardly the case.

The husband admitted on the stand that he made "thousands of dollars more a year" than the...