Gowins v. Gary, No. A07A0979.

• Court: Georgia Court of Appeals
• Writing for the Court: Ruffin
• Citation: 288 Ga. App. 409,654 S.E.2d 162
• Parties: GOWINS v. GARY.
• Decision Date: 26 October 2007
• Docket Number: No. A07A0979.

288 Ga. App. 409 654 S.E.2d 162 288 Ga.App. 409 GOWINS
v.
GARY. No. A07A0979. Court of Appeals of Georgia. October 26, 2007. Reconsideration Denied November 15, 2007.

[654 S.E.2d 163]

Kessler, Schwarz & Solomiany, Randall M. Kessler, Sheri T. Donaldson, Atlanta, for appellant.

Lenner, Schatten & Behrman, Kenneth H. Schatten, Cordell & Cordell, Tamar O. Faulhaber, Atlanta, for appellee.

RUFFIN, Judge.

This case involves a dispute over child support payments for twins born to Diana Gowins and W.E. Gary, who have never been married to each other. In November 2005, Gary petitioned to modify his monthly support obligation for the twins, asserting that a change in circumstances authorized a payment reduction. Agreeing with Gary, the trial court reduced his obligation, and we granted Gowins's application for discretionary appeal. For reasons that follow, we vacate the modification order and remand for further proceedings.

[288 Ga. App. 410] We review a trial court's ruling on a modification petition for abuse of discretion, and we will uphold the factual findings underlying the ruling if they are supported by any evidence.¹ But, if the trial court's judgment rests on an erroneous legal theory, we will not affirm.²

The record shows that following the birth of the twins, the parties entered into a settlement agreement requiring Gary to pay Gowins 28,000 each month in child support. Gary subsequently sought to modify the agreement and reduce this payment, arguing, among other things, that Gowins was using the money to sustain her own lifestyle and finance questionable investments, rather than to support the twins.³ The trial court denied Gary's request by enforcing the settlement agreement and its 28,000 monthly obligation through an April 2005 child support judgment. In its order, the trial court found that although Gowins had not been "a good steward of the monies provided her," she was "attempting to provide the twins with a life-style as nearly comparable as possible to the lifestyle [Gary's other children] enjoyed."⁴ The trial court further found that Gowins was unemployed at the time and had no monthly income.

Approximately seven months later, Gary filed the petition at issue in this case, seeking a downward modification of his monthly support payment. He again asserted that Gowins was misusing the child support payments and spending the money to improve her own lifestyle, as well as the lifestyle of an older child fathered by another man. He further argued that the 28,000 monthly support obligation greatly exceeded the twins' needs.

Following a hearing, the trial court reduced Gary's monthly support payment. The trial court found that Gowins was still unemployed, but that her gross monthly income equaled 28,240 — the support payment from Gary plus 240 she received in child support from her older child's father. It also found that the value of Gowins's home had appreciated, that her credit rating had improved, and that she had received a capital gain from an investment in 2005. The court expressed dismay at Gowins's spending habits and her inability to manage the money received from Gary, and it noted that she spent a significant amount of that money on herself and her older child.

[288 Ga. App. 411] Ultimately, the trial court concluded that Gowins did not need 28,000 per month to

654 S.E.2d 164

support the twins. It also determined that her financial status had improved and that she was capable of obtaining employment. It thus reduced Gary's direct monthly payment to Gowins from 28,000 to 5,000.⁵

1. The parties agree that this case is governed by the former version of OCGA § 19-6-19(a) (2004), which permits modification of a prior child support judgment upon a showing that the income or financial status of either party, or the needs of the children, have changed.⁶ Such showing is a threshold requirement.⁷ As explained by our Supreme Court: "In a modification proceeding, the trial court must first determine whether there has been such a change in financial status or the child's needs as would support a reconsideration of the level of [a party's] obligation to provide financial support for the . . . child."⁸ The burden of proof rests on the party asserting that a change has occurred.⁹

In modifying Gary's child support obligation, the trial court reached two conclusions: (1) Gowins did not need 28,000 per month to support the twins, and (2) Gowins's financial situation had improved. Gowins challenges these conclusions on appeal, asserting that the record does not warrant a modification. As discussed below, although certain of the trial court's findings may be authorized, the trial court based its decision, at least in part, on evidence and circumstances that do not support a change in support obligations. Accordingly, we must vacate the modification order and remand this case for further proceedings.¹⁰

(a) Noting that Gowins used Gary's support payment to benefit herself and her third child, the court determined that Gowins did not require 28,000 each month to meet the twins' needs. The trial court did not find, however, that the twins' needs had changed since the April 2005 child support award. And overpayment is not a basis for modification. Rather, the focus must be on a change in circumstances. ¹¹[288 Ga. App. 412]

The record shows that Gowins's habit of spending excessively and mismanaging the twins' funds preceded the April 2005 order, and Gary asserted prior to entry of that order that his monthly payment should not exceed 5,000. Nevertheless, the trial court approved the 28,000 support payment negotiated by the parties, and neither the trial court nor Gary has cited any evidence that a change in the twins' needs supports a reduction at this point. Regardless of whether the 28,000 monthly payment is excessive, it cannot be modified based on the twins' needs without proof that those needs have changed. The trial court, therefore, abused its discretion in modifying Gary's child support obligation on this ground.¹²

(b) The trial court also found that improvements in Gowins's financial status demanded

654 S.E.2d 165

a modification. "Financial status is a much more comprehensive term than `income,' and pertains to the conditions or circumstances in which a person stands with regard to his income and property."¹³

(i) In determining that Gowins's financial status had improved, the trial court noted that following the...