Friday v. Friday

• Decision Date: 03 March 2014
• Docket Number: No. S13A1625.,S13A1625.
• Parties: FRIDAY v. FRIDAY.
• Court: Georgia Supreme Court

294 Ga. 687

755 S.E.2d 707

FRIDAY

v.FRIDAY.

No. S13A1625.

Supreme Court of Georgia.

March 3, 2014.

Jennifer Lynn Giles, Andrea Dyer Hastings, Waggoner Hastings LLC, Alpharetta, for appellant.

Adam G. Jett Jr., Jett and Liss, Douglasville, for appellee.

HINES, Presiding Justice.

This court granted the application for discretionary appeal of Ronald Friday (“Husband”) from the trial court's order on a petition for contempt and a petition for modification of child support in this divorce case. For the reasons that follow, we affirm in part and reverse in part.

Husband and Terri Friday (“Wife”) were married on April 17, 1993. The couple were divorced on April 22, 2008, after two children were born of the marriage. Under the final judgment and decree of divorce, which incorporated the parties' settlement agreement (“Decree”), Husband was obligated to pay $2,000 per month in support for the couple's two minor children. At the time of the divorce, Husband's annual income was approximately $180,000. Husband was involuntarily separated from his employment in September 2010; as a severance package, he continued to receive his monthly salary until December 2010, as well as a pro rata bonus. During this period, Husband continued to pay his child support obligations as set forth in the Decree.

On December 1, 2010, Husband filed a petition for modification of child support due to involuntary loss of employment in accordance with OCGA § 19–6–15(j).¹ He contemporaneously filed a child support worksheet which calculated a new monthly support obligation of $179, based upon an income from unemployment benefits of $1,320 per month. On December 15, 2010, Husband began making monthly child support payments in the amount of $179.

Wife subsequently filed a petition for contempt due to Husband's failure to pay child support as directed in the Decree. During a hearing, Husband testified that he was looking for work, would not accept a job offer at a salary of $100,000.00 a year, but would consider a job offer at $120,000.00 a year. In an order entered February 29, 2012, addressing both the petition for modification and the petition for contempt, the trial court found “a substantial change in the income and financial circumstances of [Husband]” warranting a decrease in child support under OCGA § 19–6–15(j). The court included on the child support worksheet as “other income,” an imputed amount of $4,180 per month (roughly half of the $100,000 a year income that Husband testified he would not consider accepting), and the court ordered Husband's modified support amount due to be $1,040 per month. The court specifically found that Husband was able to pay more than $179 per month, found him in wilful contempt for failure to pay child support, and ordered Husband to pay Wife $8,000 instanter in order to purge himself of the contempt and to submit to the court a Qualified Domestic Relations Order regarding Husband's retirement plan assets within 30 days of the entry of the order.

1. Husband contends that it was error for the trial court to impute income of $4,180 per month to him in addition to the $1,320 in monthly unemployment benefits he received. However, the trial court is empowered to impute income for willful or voluntary unemployment or underemployment. See OCGA § 19–6–15(f)(4)(D); ² Brogdon v. Brogdon, 290 Ga. 618, 620(3), 723 S.E.2d 421 (2012). Although Husband notes that the court did not make written findings regarding the imputation of income, “ OCGA § 19–6–15(f)(4)(D) does not require a trial court to make written findings as to why it decided to impute income to a spouse.” See Bankston v. Lachman, 286 Ga. 459, 461(2), 689 S.E.2d 301 (2010) (Emphasis in original). A trial court's evaluation of willful unemployment or underemployment may examine “any intentional choice or act that affects a parent's income” in order to determine “whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills, or training to produce income.” OCGA § 19–6–15(f)(4)(D). And, a court may consider a parent's past or present employment, as well as ownership of valuable assets. Id. See also Banciu v. Banciu, 282 Ga. 616, 617–618(1), 652 S.E.2d 552 (2007).

At the hearing on the petitions for contempt and modification of child support, Husband testified that his annual income at the time of the divorce was $180,000, that he had approximately $390,000 in retirement assets, that he had received $7,500 per month in loans from his family in the five months preceding the trial, and that, despite his unemployment, he would not accept any offer of employment that paid $100,000 per year or less. In evaluating the reasonableness of Husband's occupational choices, his past employment, current assets, current monthly receipts, and self-imposed salary restrictions regarding his job search supported a finding that Husband was willfully unemployed or underemployed under OCGA § 19–6–15(f)(4)(D). “It cannot be said that the trial court did not ascertain the reasonableness of [H]usband's occupational choice simply because it did not make explicit findings in that respect.” Bankston, supra. This enumeration of error is without merit.

2. Husband contends the trial court erred in finding him in willful contempt for his failure to meet his support obligation, arguing that after December 2010, he paid child support in accordance with OCGA § 19–6–15(j). However, OCGA § 19–6–15(j) does not simply authorize a child support obligor who has suffered involuntary loss of income and seeks a downward modification to begin paying what he or she calculates as the new amount of child support; what it does provide is that, should the party seeking the downward modification prevail on a petition seeking to do so, “then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification....” But, the fact that a child support obligor faced with a reduction in income has submitted a petition for modification with a worksheet setting forth a certain amount for child support does not render the resulting income and support figures binding upon the trial court. Rather, the trial court can determine whether the income figure put forth by the obligor is accurate, determine income, and calculate child support accordingly. And in doing so here, the trial court concluded that a downward modification of child support was appropriate under OCGA § 19–6–15(j)(1). As the trial court was addressing both a petition for modification and a petition for contempt, it was empowered to not only address the amount of child support due going forward, but also to calculate the amount of child support arrearage. Accordingly, the analysis presented in Morgan v. Bunzendahl, 316 Ga.App. 338, 340(2), 729 S.E.2d 476 (2012) (physical precedent only), pertaining to OCGA § 19–6–15(j)(1) is correct; the modification of child support is prospective only, but if a question is presented on a petition for contempt, any amount of arrearages due that would be due under the prior order, but were attributable to lost income, do not accrue from the date of service of the petition. Compare Galvin v. Galvin, 288 Ga. 125, 126(1), 702 S.E.2d 155 (2010), in which petitions for modification of child support and child custody were before the trial court, but not a petition for contempt.

Under the Decree, Husband was to pay $2,000 per month in child support; after December 15, 2010, he did not do so, paying only $179 per month, or $1,821 less than the original figure.

“In cases of contempt the trial judge is vested with a discretion in determining whether his orders have been violated and how such infringements should be treated; and it has been said that this court will not disturb his judgment, unless it appears that he has abused his discretion. [Cits.]” [Cit.]

Burke v. Burke, 263 Ga. 141, 142(2), 429 S.E.2d 85 (1993). Husband submitted a child support worksheet showing a level of income that the court determined was inaccurate. Rather, the court determined that the proper monthly amount of child support was $1,040, a figure $960 less than the original amount. Thus, the trial court necessarily determined that $960 a month was “the portion of child support attributable to lost income” under OCGA § 19–6–15(j)(1), not $1,821 as Husband claimed. It was not an abuse of discretion for the trial court to find Husband in wilful contempt for his failure to meet his support obligation.

3. The trial court ordered Husband to pay $8,000 instanter in order to purge himself of contempt for his child support arrearage, which Husband also contends is error. It is uncontroverted that between December 15, 2010, and the trial court's order of February 29, 2012, Husband paid $179 per month in child support, in accordance with the worksheet submitted with his petition for modification. However, the court determined that the appropriate figure was $1,040 per month. Accordingly, there were 15 months in which Husband underpaid his obligation by $861, for a total underpayment of $12,915. Thus, it was not error for the court to order the payment of $8,000 in order to purge contempt; the purge amount was within the total arrearage due under the existing obligation to pay proper child support, and within the trial court's discretion. See Johnson v. Johnson, 284 Ga. 366, 667 S.E.2d 350 (2008); McCullough v. McCullough, 208 Ga. 776, 779(2), 69 S.E.2d 764 (1952). Although Husband contends that the court did not specify the reason why it chose the figure of $8,000 such is not necessary. The court did not seek to impose any new obligation and include that debt in the amount due in order to purge contempt, see Horn v. Shepherd, 292 Ga. 14, 21(11), 732 S.E.2d 427 (2012); Gay v. Gay, 268 Ga. 106, 107(2), 485 S.E.2d 187 (1997), and there is no error in this regard. Burke, supra.³

4. Finally, in the final order addressing the...