Frazier v. Frazier
| Decision Date | 26 June 2006 |
| Docket Number | No. S06F0211.,S06F0211. |
| Citation | 631 S.E.2d 666,280 Ga. 687 |
| Parties | FRAZIER v. FRAZIER. |
| Court | Georgia Supreme Court |
Celeste Findlay Brewer, Atlanta, for appellant.
Karlise Yvette Grier, Grier Law Office, P.C., Atlanta, for appellee.
Christine Frazier (hereinafter "Wife") seeks in this appeal to overturn the final decree of divorce issued in the action she brought against Anthony Frazier (hereinafter "Husband") in which both parties sought custody of their three children. After a three-day bench trial, the trial court awarded joint legal and physical custody of the children, with Husband having authority, in the event of disagreement, to decide issues relating to education and extracurricular activities and Wife having authority to decide issues relating to health and religion; awarded child support to Wife; allocated the income tax dependency exemption for one child to Husband, for another child to Wife, and for the third child to each parent in alternating years; and divided the couple's marital property. During the pendency of Wife's motion for new trial and motion to set aside, Husband filed a motion for supersedeas bond which the trial court granted, requiring payment of a sum of money into the registry of the court and excepting from the supersedeas the custody provisions of the divorce decree. Following the trial court's denial of Wife's motion for new trial, this Court granted her discretionary appeal application pursuant to this Court's Family Law Pilot Project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).
1. Relying on this Court's holding in Blanchard v. Blanchard, 261 Ga. 11, 401 S.E.2d 714 (1991), that Georgia courts do not have authority to award the federal income tax dependency exemption to a non-custodial parent, Wife contends the trial court erred in giving any part of the exemption to Husband. Notwithstanding the trial court's award of joint legal and physical custody of the children, Wife contends she is the custodial parent for the purpose of federal income tax considerations because she has custody of the children for more of the year than Husband does. In support of that position, she relies on I.R.C. § 152(4)(A) which provides "[t]he term `custodial parent' means the parent having custody for the greater portion of the calendar year." However, our calculations based on the trial court's order reveal that the time the children are to spend with each parent is, so far as is practicable, equal. Under those circumstances, the holding in Blanchard does not support Wife's position because Husband is not the non-custodial parent, and I.R.C. § 152(4)(A) does not require the exemption be given to one parent because neither parent can be said to have custody for a greater portion of the calendar year.1 What the trial court did in this case comes as close to the requirement of I.R.C. § 152(4)(A) as is possible, splitting the exemption between two parents who are both custodial parents by virtue of the divorce decree and neither of whom has custody for a greater portion of the calendar year.
Wife's argument that permitting Husband to have any part of the exemption would cause the child support awarded by the trial court to fall below guideline amounts is not persuasive. In Bradley v. Bradley, 270 Ga. 488(2), 512 S.E.2d 248 (1999), on which Wife relies, we dealt with a provision in a divorce decree which would have reduced child support in the event the wife successfully appealed the allocation of the dependency exemption to the husband. Here, no such change is contemplated. Permitting Husband to claim an exemption will not affect his gross income, which is the basis for child support calculations under the statutory guidelines (OCGA § 19-6-15) and nothing the trial court has done causes a reduction in the amount of child support. We see no error in the division of the dependency exemption established in the final decree.
2. In establishing the schedule of physical custody of the parties' children, the trial court, with the agreement of both parents, adopted the recommendation of the guardian ad litem. On appeal, as she did on motion for new trial, Wife contends the trial court abused its discretion in giving the parties equal physical custody of the children, arguing that the custody arrangements of the decree are not in the best interests of the children. In support of her argument, Wife points to evidence that the parties cannot communicate well, which will make the process of sharing custody difficult; expresses concern that Husband's travel schedule will result in the children spending too much time with caretakers other than their parents; and complains primarily that the custody schedule unfairly favors Husband. Husband points to evidence of his deep involvement with caring for the children prior to the separation of the parties and to evidence in the record that Wife engaged during the pendency of the divorce in a pattern of efforts to thwart the exercise of his visitation rights pursuant to a temporary custody order.
Where parents contest the issue of custody of a child, the trial court has very broad discretion, looking always to the best interest of the child. Urquhart v. Urquhart, 272 Ga. 548(1), 533 S.E.2d 80 (2000). When the trial court has exercised that discretion, this court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court's finding, this court will not find there was an abuse of discretion. Id. Because our review of the evidence, which included testimony that the parents were improving in their ability to communicate regarding the children's needs, does not show a clear abuse of the trial court's discretion, we will not disturb the custody provisions of the decree.
3. As part of the award of joint legal custody, the trial court required the parties to make an effort to agree on questions of the children's religion, health, education, and extra-curricular activities. It also provided that if the parties could not agree on those issues, Wife would have final decision-making authority with regard to religion and health while Husband would have that authority with regard to education and extra-curricular activities. Wife contends that designating Husband as decision-maker on those two issues was not in the best interests of the children because the parties do not communicate well and because his decisions would have a greater impact during the times Wife has physical custody than when he does.
The trial court's designation of decision-making authority is provided for in OCGA § 19-9-6(2): "`Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions." The language of that statute clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree. Discretionary decisions regarding custody will not be disturbed unless the evidence shows a clear abuse of discretion. Anderson v. Anderson, 278 Ga. 713(1), 606 S.E.2d 251 (2004). Because the evidence in this case showed on-going disagreements between the parents on the issues of education and extra-curricular activities, making unlikely the parties being able to come to agreement on those issues, and also showed Husband played a greater role than Wife in decision-making regarding the children's education and extra-curricular activities prior to the parties' separation, we conclude the trial court's designation was not an abuse of discretion.
4. Wife complains the trial court's division of marital property was unfair because the trial court made certain valuations without an evidentiary basis and did not take into account several matters to which she testified. Her complaints amount to a challenge of the trial court's assessment of the evidence. Langley v. Langley, 279 Ga. 374(2), 613 S.E.2d 614 (2005). Our review of the record reveals the matters regarding which Wife complains were the subject of conflicting evidence and that her testimony on several of these matters was inconsistent. Because the record does not show the trial court's conclusions reflected in its distribution of marital property were clearly erroneous, we will not disturb them. Id.
5. After Wife filed a timely motion for new trial, Husband filed a motion for supersedeas bond. Pursuant...
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