Mongerson v. Mongerson

• Decision Date: 15 June 2009
• Docket Number: No. S09F0132.,S09F0132.
• Citation: Mongerson v. Mongerson, 678 S.E.2d 891, 285 Ga. 554 (Ga. 2009)
• Parties: MONGERSON v. MONGERSON.
• Court: Georgia Supreme Court

678 S.E.2d 891

285 Ga. 554

MONGERSON v. MONGERSON.

No. S09F0132.

Supreme Court of Georgia.

June 15, 2009.

Hedgepeth & Heredia, Hannibal F. Heredia, Kimberli J. Reagin, Atlanta, for appellant.

Lance P. McMillian, Tyrone, for appellee.

Elizabeth L. Littrell, Atlanta, amicus curiae.

BENHAM, Justice.

Appellant Eric Duane Mongerson and appellee Sandy Kay Ehlers Mongerson were married in March 1986 and were divorced by a judgment and decree filed October 1, 2007. This Court granted appellant Husband's application for discretionary review pursuant to the Family Law Pilot Project.¹

The final judgment, which incorporated the parties' settlement agreement, gave appellee Wife custody of the couple's three minor children, gave Husband limited visitation with his children until greater periods of visitation were deemed appropriate by the children's therapist, and required Husband to pay monthly child support, to maintain a life insurance policy on which the couple's four children were named as beneficiaries, to pay 90 percent of the minor children's uninsured health expenses, and to pay Wife monthly alimony for as long as she was enrolled at an educational facility and earning passing grades in a program to obtain a college degree. Husband was ordered to pay attorney fees of $8,800 to Wife's attorney, with the option of paying $200 a month and with the award accruing interest at an annual rate of 11.25 percent. The children were to have no contact with their paternal grandparents, and Husband was "prohibited from exposing the children to his homosexual partners and friends."

1. The trial court's order requires Husband to maintain a life insurance policy on his life with the four children of the marriage named as equal beneficiaries.² A life insurance policy is often used as a means of providing child support. See OCGA § 19-6-34. A parent can use a life insurance policy to voluntarily provide more child support than is statutorily required (see McClain v. McClain, 235 Ga. 659, 221 S.E.2d 561 (1975)), but an intention to support a child into his majority is found only where there is specific and unambiguous language to that effect. Anderson v. Anderson, 251 Ga. 508, 509, 307 S.E.2d 483 (1983). The couple's eldest child had reached the age of majority when the October 2007 divorce judgment was entered, and there is no evidence of specific and unambiguous language that reflects a voluntary obligation on the part of Husband to assume a support obligation that exceeded his legal duty. Accordingly, it was error to require Husband to name a child who had reached majority as beneficiary of a policy of life insurance on Husband's life.

2. Husband complains the trial court abused its discretion when it ordered that the children not be exposed to their paternal grandparents and prohibited Husband "from exposing the children to his homosexual partners and friends." While this State has a policy to "encourage parents to share in the rights and responsibilities of raising their child[ren] after such parents have separated or dissolved their marriage" (OCGA § 19-9-3(d)), a trial court has discretion to prohibit the exercise of visitation rights by a non-custodial parent in the presence of certain people if the evidence demonstrates the children have been exposed to inappropriate conduct involving the specified persons or that exposure to the prohibited persons would adversely affect the children. Brandenburg v. Brandenburg, 274 Ga. 183(1), 551 S.E.2d 721 (2001); Moses v. King, 281 Ga.App. 687, 691, 637 S.E.2d 97 (2006). "In the absence of evidence that exposure to a third party will have an adverse effect on the best interests of the children, a trial court abuses its discretion by prohibiting a parent from exercising his or her custodial rights in that person's presence." (Citation omitted.) Arnold v. Arnold, 275 Ga. 354, 566 S.E.2d 679 (2002).

Contrary to Husband's assertion, the record contains evidence that supports the trial court's decision that exposure to the paternal grandparents will have an adverse effect on the best interests of the children. There was evidence the grandparents had been physically and emotionally abusive of the children, and Husband acknowledged he had not fulfilled his promise to never leave his children alone with his parents. Accordingly, the trial court did not err when it restricted contact between the children and their paternal grandparents.

The blanket prohibition against exposure of the children to members of the gay and lesbian community who are acquainted with Husband is another matter. There is no evidence in the record before us that any member of the excluded community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that community. The prohibition against contact with any gay or lesbian person acquainted with Husband assumes, without evidentiary support, that the children will suffer harm from any such contact. Such an arbitrary classification based on sexual orientation flies in the face of our public policy that encourages divorced parents to participate in the raising of their children (OCGA § 19-9-3(d)), and constitutes an abuse of discretion. See Turman v. Boleman, 235 Ga.App. 243, 244, 510 S.E.2d 532 (1998) (abuse of discretion to refuse to permit mother to exercise visitation rights with child in the presence of any African-American male); In the Interest of R.E.W., 220 Ga.App. 861, 471 S.E.2d 6 (1996) (abuse of discretion to refuse father unsupervised visitation with child based on father's purported "immoral conduct" without evidence the child was or would be exposed to undesirable conduct and had or would be adversely affected thereby). In the absence of evidence that exposure to any member of the gay and lesbian community acquainted with Husband will have an adverse effect on the best interests of the children, the trial court abused its discretion when it imposed such a restriction on Husband's visitation rights. Arnold v. Arnold, supra, 275 Ga. 354, 566 S.E.2d 679. Accordingly, we vacate the blanket prohibition against exposure of the children to Husband's gay and lesbian acquaintances.

3. The trial court's order requires Husband to pay 90 percent of any uninsured health care expense of the minor children and contains a non-exhaustive list of various healthcare expenses covered by the provision, including "psychiatric/psychological." Citing Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980) ("medical expenses," as used in divorce decree, did not cover bills for children's psychological care), Husband contends he should not be held responsible for payment of bills for the children's psychological counseling. Wimpey stands only for the proposition that psychological care is not included within the phrase "medical care," when that phrase is used in a judgment of divorce and is not defined therein. Id. at 546, 272 S.E.2d 278. In the case at bar, the phrase at issue is "health care expenses" and that term is defined in the judgment as including psychological care. Inasmuch as Husband is responsible for 90 percent of "uncovered health care expenses," including psychological care, Husband's contention is without merit.

4. Husband's assertion that the trial court failed to make a finding of Wife's gross income is without merit. The trial court's order contains a finding of each party's gross monthly earnings, and the transcript of the final hearing contains evidence supporting said finding. See Dyals v. Dyals, 281 Ga. 894(1), 644 S.E.2d 138 (2007) (factfinder's determination of gross income not disturbed when supported by evidence of record).

5. Husband takes issue with three provisions of the final judgment on the ground that the trial court's oral ruling at the close of the hearing did not include such measures. A trial court's oral pronouncement is not a judgment until it is reduced to writing and entered as a judgment. Williams v. City of LaGrange, 213 Ga. 241(1), 98 S.E.2d 617 (1957). The trial court's oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment. Blair v. Bishop, 290 Ga.App. 721(2), 660 S.E.2d 35 (2008).

With regard to the final judgment's provision giving Wife a "right of first refusal" that requires Husband to notify Wife when he plans to leave the children in the care of a third party in order that Wife can decide whether she shall provide care for the children in that instance, Husband additionally complains that the parties did not agree to such a provision. However, the judgment issued by a trial court in a divorce action is not limited to only those matters upon which the parties have agreed.

6. Husband complains that the award of alimony to Wife constitutes an abuse of discretion, contending the trial court made no finding concerning Husband's ability to pay and Wife's needs, and contending the award is grossly excessive because it is possible under the terms of the award for Wife to remain a student and receive alimony for the rest of her life.

The factfinder is given wide latitude in fixing the amount of alimony, and may use personal experience as an enlightened person in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case. Farrish v. Farrish, 279 Ga. 551, 552, 615 S.E.2d 510 (2005). The record reflects that the trial court considered that Wife has a monthly income approximately one-tenth that of Husband and that Wife has spent the majority of her time during the 21-year marriage as a full-time homemaker and child caregiver and requires additional education to obtain gainful employment. The trial court did not abuse its discretion in making its alimony award. Arkwright v. Arkwright...