Brogdon v. Brogdon

• Decision Date: 27 February 2012
• Docket Number: No. S11F1975.,S11F1975.
• Citation: Brogdon v. Brogdon, 12 FCDR 569, 290 Ga. 618, 723 S.E.2d 421 (Ga. 2012)
• Parties: BROGDON v. BROGDON.
• Court: Georgia Supreme Court

12 FCDR 569

290 Ga. 618

723 S.E.2d 421

BROGDON

v.BROGDON.

No. S11F1975.

Supreme Court of Georgia.

Feb. 27, 2012.

Suzanne E. Henrickson, Robert S. Lane, Henrickson & Sereebutra, for appellant.

Hylton B. Dupree, Jr., Blake R. Carl, Dupree & Kimbrough, for appellee.

NAHMIAS, Justice.

We granted this application for discretionary appeal under Supreme Court Rule 34(4), by which we grant every “application ... for leave to appeal a judgment and decree of divorce that is final under OCGA § 5–6–34(a)(1) and timely under OCGA § 5–6–35(d) and is determined to have possible merit by a majority vote of the Court.” As explained below, the final child support order issued by the trial court includes a specific deviation for extraordinary educational expenses, but the court failed to make the statutorily required written findings necessary to support the deviation. We therefore must reverse the judgment in part and remand the case for a redetermination of the final child support order, with any extraordinary educational expenses deviation to be based on proper written findings. Husband's remaining challenges lack merit, and so we affirm the remainder of the trial court's judgment.

1. Viewed in the light most favorable to the trial court's rulings, the evidence showed as follows. On November 11, 2000, Joshua P. Brogdon (Husband) and Tawnya S. Brogdon (Wife) married. They later had a child. On July 9, 2009, Husband filed for divorce. On August 3, 2010, after a two-day bench trial, the court entered a final judgment and decree of divorce. The divorce decree incorporated by reference an attached Child Support Addendum, which incorporated by reference and attached the statutorily required Child Support Worksheet and Child Support Schedule E—Deviation (Special Circumstances). See OCGA § 19–6–15(c)(4) (“The child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment....”).

The divorce decree awarded the parties joint legal custody of their five-year-old son, with Wife having primary physical custody. Regarding child support, the trial court rejected Husband's claims about his sources of income and monthly gross income of $2,916.67, instead finding that he had monthly gross income of $12,000. The court found no reliable evidence of Wife's income and imputed to her monthly gross income of $1,257. After performing the calculations reflected on the Child Support Worksheet and Schedule E, the court ordered Husband to pay Wife monthly child support of $1,816.

Regarding equitable division, the trial court found that, during the marriage, the parties acquired partial ownership interests in two limited liability real estate holding companies worth $120,000 and $22,500, respectively, and a $50,000 interest in a residential repair partnership. The divorce decree awarded Husband these business interests but ordered him to pay Wife half their value, $96,250, in monthly installments of $2,000. Husband was also required to execute the general security agreement and collateral pledge agreement attached to the decree, along with any other documents necessary to perfect Wife's security interest in the $96,250 award. The court divided other marital property between the parties.

On May 11, 2011, the trial court entered an order granting in part and denying in part Husband's motion for reconsideration and modification of the divorce decree. The court also entered an order requiring Husband to pay to Wife's attorney a total of $20,917.10 in attorney fees and costs in monthly installments of $750. On July 6, 2011, we granted Husband's application for discretionary appeal of the divorce decree and attorney fees order under our Rule 34(4).

2. Husband contends that the trial court erred in finding that he had monthly gross income of $12,000. However, the evidence showed that Husband frequently made large cash withdrawals, had recently made large purchases, and used his business account to pay a substantial amount of his personal expenses averaging $12,079.05 per month. The evidence also showed that Husband and his girlfriend attempted to fabricate a false profit and loss statement for his sole proprietorship that substantially understated his actual earnings. Thus, there is evidence supporting the trial court's finding that Husband had monthly gross income of $12,000. See Alejandro v. Alejandro, 282 Ga. 453, 453, 651 S.E.2d 62 (2007) (“The trial court's factual findings [in a divorce case] will be upheld if there is any evidence to support them.”); Dyals v. Dyals, 281 Ga. 894, 895, 644 S.E.2d 138 (2007) (finding no reversible error where some evidence supports the factfinder's determination of gross income).

3. Husband claims that the trial court erred in finding that Wife “has no income for purpose of computing child support” and imputing to her monthly gross income of only $1,257. The evidence showed that although Wife was able to work, she had no regular employment, was the primary caretaker of the parties' young son, and occasionally earned $11 per hour for working special events at a restaurant. OCGA § 19–6–15(f)(4)(A) provides:

Imputed income. When establishing the amount of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parent's income or income potential, gross income for the current year shall be determined by imputing gross income based on a 40 hour workweek at minimum wage.

The trial court did not abuse its discretion in finding that it had no reliable evidence of Wife's income and imputing to her monthly gross income of $1,257 based on a 40–hour workweek at the national minimum wage of $7.25 per hour.

4. Husband asserts that the trial court improperly attributed 100% of the “basic child support obligation” to him instead of calculating his pro rata share of the obligation as required by OCGA § 19–6–15(b). This assertion is based on the following passage in the divorce decree: “The basic child support obligation for the support and maintenance of the minor child of the parties is $1,816.00.... The Court assigns 100 percent of the child support obligation to [Husband]....” Read in isolation, this language might suggest an error in the court's calculation of the final child support amount for which Husband is responsible. See OCGA § 19–6–15(b)(5) (“Calculate the pro rata share of the basic child support obligation for the custodial parent and the noncustodial parent by dividing the combined adjusted income into each parent's adjusted income to arrive at each parent's pro rata percentage of the basic child support obligation.”).

However, we read the divorce decree as a whole, including the attachments incorporated by reference. The Child Support Worksheet correctly stated that the parties' “basic child support obligation” was $1,517 based on their monthly combined adjusted income of $13,257 and one child. See OCGA § 19–6–15( o ) (listing $1,517 as the basic child support obligation for one child and a monthly combined adjusted income of $13,250). The worksheet then listed $1,816 as the “final child support amount” due from Husband each month after applying the rest of the statutorily required steps for calculating child support, see § 19–6–15(b)(5)–(9), which included calculation of Husband's pro rata share of the basic child support obligation, see OCGA § 19–6–15(b)(5).

The Child Support Addendum says much the same thing as the main body of the decree without using the term “basic child support obligation”: “Child Support Amount—The Father shall pay to the Mother, for the support of the minor children [sic], the sum of 1,816.00 Dollars ($1,816.00) per month, beginning on June 1, 2010.” Moreover, the Child Support Addendum and the Child Support Worksheet show that the court did prorate Husband's responsibility for the basic child support obligation before proceeding through the rest of the steps in the statutory calculation to arrive at the order requiring Husband to pay Wife $1,816 monthly for child support.

While “basic child support obligation” is a term of art in the context of the child support guidelines, see OCGA § 19–6–15(a)(3), we conclude that the trial court simply misused the term in the one passage relied upon by Husband and this mistake did not affect the child support calculations or award. Accordingly, Husband has failed to show reversible error.

5. OCGA § 19–6–15( i )(2) lists 11 situations that arise with some frequency in child support cases and that may, in a particular case, warrant a “specific deviation” from the presumptive amount of child support calculated under the statutory guidelines. Husband argues that the trial court erred by including specific deviations for low income and extraordinary educational expenses without the statutorily required written findings and by not including a specific deviation for his payment of all extracurricular expenses for the parties' son.

(a) Specific deviation for low income. The divorce decree is clear that Husband was ordered to pay Wife $1,816 monthly for child support, but it contains some errant statements. For example, the decree states that the court “finds no deviation on the child support schedule,” but the incorporated Child Support Addendum states, “It has been determined that one or more of the Deviations allowed under OCGA § 19–6–15 applies in this case, as shown by the attached Schedule E.” In addition, the Child Support Worksheet shows a specific deviation of $452.60 for each parent (downward for Wife; upward for Husband), and by “Deviation type(s) used,” it says, “Extraordinary Educational Expenses.” Husband contends that the final child support order (here, the divorce decree and attachments) also reflects a specific deviation...