Neal v. Hibbard

• Decision Date: 16 March 2015
• Docket Number: Nos. S14A1669,S14A1673.,s. S14A1669
• Citation: 770 S.E.2d 600,296 Ga. 882
• Parties: NEAL v. HIBBARD. Neal v. Neal.
• Court: Georgia Supreme Court

296 Ga. 882

770 S.E.2d 600

NEAL

v.HIBBARD.

Neal

v.Neal.

Nos. S14A1669

S14A1673.

Supreme Court of Georgia.

March 16, 2015.

Reconsideration Denied April 9, 2015.

Joseph R. Neal, Jr., pro se.

Allyson C. Hibbard, pro se.

Shepard Plunkett Hamilton Boudreaux, Jenna B. Matson for Jennifer S. Neal.

Opinion

HINES, Presiding Justice.

In these two cases, Joseph R. Neal, Jr. (“Neal”) appeals the trial court's orders modifying child custody and child support as they pertain to his two children by two different marriages. For the reasons that follow, as to both cases, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Neal and Allyson C. Hibbard (“Hibbard”) were divorced on January 28, 2000. They had one child together, a son who was fifteen at the time of the bench trial in the instant action; under the 2000 final judgment and decree of divorce, the parties had joint legal and physical custody of their son, who spent half of his time with each parent. In the divorce decree, Neal was ordered to pay child support to Hibbard in the amount of $660 per month, as well as certain expenses of the child.

Neal and Jennifer S. Neal (“Jennifer”), Neal's second wife, were divorced in October 2006, remarried in 2009, and divorced again on July 22, 2010. They had one child together, a daughter who was seven at the time of the bench trial in the instant action; under the 2010 final judgment and decree of divorce, the parties had joint legal and physical custody of the child, and again, the child's time was split equally between the two parents, and Neal was ordered to pay Jennifer $1,000 per month in child support, as well as certain expenses of the child.

On December 16, 2011, a sexual incident occurred involving Neal, his then-wife,¹ and their eighteen-year-old babysitter. As a result of the incident, Neal was charged with rape and other crimes; the rape charge was dismissed in 2012, although Neal was sentenced for possession of marijuana and furnishing alcohol to an underage person. Neal was a personal injury attorney in Augusta; his criminal prosecution received extensive negative media coverage; his income was negatively impacted; and he was suspended from the practice of law in South Carolina and the United States District Court for the Southern District of Georgia. Neal then moved to Atlanta in an effort to restore his practice.

Both Hibbard and Jennifer sought modification of their divorce decrees as to child custody and support, and the cases were heard together. As to Neal's son with Hibbard, on September 10, 2013, the trial court entered its final order modifying custody, giving the parties joint legal custody of the child, with Hibbard being the primary physical custodian, and Neal's visitation taking place in Augusta. On the issue of support, on September 26, 2013, the trial court entered a temporary order under which Neal was to pay $2,000 per month; on November 23, 2013, the trial court awarded Hibbard $1,774 per month in its final judgment modifying child support. Neal appeals from these orders in Case No. S14A1669.

As to Neal's child with Jennifer, on September 10, 2013, the trial court entered its final order modifying custody, giving the parties joint legal custody of the child, with Jennifer being the primary physical custodian, and Neal's visitation taking place in Augusta. In a September 26, 2013, temporary child support order, Neal was directed to pay $2,000 per month. On November 14, 2013, the trial court awarded Jennifer $1,857 per month in its final judgment modifying child support, and in the same order, awarded her $5,334 in arrears for unpaid child support; in a subsequent order, the court awarded Jennifer $15,617.34 in attorney fees and litigation expenses. Neal appeals from these orders in Case No. S14A1673.

Case No. S14A1669

1. Neal contends that the trial court erred in modifying custody of his son.

In determining whether or not a material change in circumstances substantially affecting the welfare of a child or children has taken place, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused.... [T]his court will not interfere with [the trial judge's] finding when there is any evidence to support it. [Cit.]

Horn v. Shepherd, 292 Ga. 14, 18(5), 732 S.E.2d 428 (2012).

Nonetheless, Neal asserts that his sexual behavior was the only basis for the trial court's decision, and that, as such occurred without any child being present in the home at the time, his behavior should not be considered in determining whether a material change in circumstances occurred. As this Court has previously noted,

[t]he best interests of the child are controlling as to custody changes. OCGA § 19–9–3(a)(2) ; Parr v. Parr, 196 Ga. 805, 27 S.E.2d 687 (1943). Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case. Wilson v. Wilson, 241 Ga. 305, 245 S.E.2d 279 (1978). In contemplating a custodial change, the trial court must exercise its discretion to determine whether a change is in the best interests of the child. OCGA § 19–9–3. The circumstances warranting a change in custody are not confined to those of the custodial parent: any new and material change in circumstances that affects the child must also be considered. Handley v. Handley, 204 Ga. 57, 59, 48 S.E.2d 827 (1948). The law thus recognizes that because children are not immutable objects but living beings who mature and develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child.

Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003). In determining the best interests of the child, a court may consider the conduct of the parents. Patel v. Patel, 276 Ga. 266, 267–269(1), 577 S.E.2d 587 (2003) ; Mock v. Mock, 258 Ga. 407, 369 S.E.2d 255 (1988). As the trial court noted, there was evidence of the notoriety produced by Neal's conduct, and the effects thereof, including Neal's move from Augusta to Atlanta. The court heard evidence regarding the logistics of visitation, and a relocation of a parent is a factor that the trial court can consider in determining the best interests of the child. See Salmon–Davis v. Davis, 286 Ga. 456, 457–458(1), 689 S.E.2d 303 (2010). Neal fails to show error on this ground. Horn, supra.

2. Neal urges that any modification of child support to Hibbard is unwarranted, contending that Hibbard never requested a modification of support, but such a request is in her original complaint, and a modification of support is justified, given the change in custody. See Stoddard v. Meyer, 291 Ga. 739, 732 S.E.2d 439 (2012). Further, Hibbard's absence from the second consolidated hearing on custody and child support did not waive her right to receive from Neal, for the benefit of the child, financial support that reflects the change in custody; Neal cites Sykes v. State, 236 Ga.App. 518, 511 S.E.2d 566 (1999), but it is simply inapposite. That case dealt with a criminal prosecution in which the defendant made a speedy trial demand under OCGA § 17–7–170(a), and the trial court found that, by his actions, the defendant had waived his statutory right to a speedy trial.

3. The trial court entered a temporary order of child support on September 26, 2013, setting support for Neal's son at $2,000 per month. Neal notes that the trial court did not append a child support calculation worksheet to the temporary order, but none is required. Rather,

[t]he child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment; provided, however, that any order entered pursuant to Code Section 19–13–4² shall not be required to have such worksheet and schedule attached thereto.

OCGA § 19–6–15(m) (Emphasis supplied.) Nonetheless, “[t]he child support guidelines contained in [OCGA § 19–6–15 ] are a minimum basis for determining the amount of child support and shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.” OCGA § 19–6–15(c)(1). However, there is no indication that the trial court used the guidelines in determining the amount of child support in its temporary order; indeed, the order shows on its face that the guidelines were not used, stating that “[a]fter careful review of the evidence, the court is unable to calculate various items relating to child support and arrears; therefore, the court will rehear all matters related to child support and arrears.” The order then simply imposes a child support obligation of $2,000 a month. But, “[i]f modification was appropriate, then the court was required to use the child support guidelines to calculate the new amount.” Wetherington v. Wetherington, 291 Ga. 722, 726(2)(a), 732 S.E.2d 433 (2012). The fact that the temporary order was superseded by the final judgment for child support does not render it moot; the obligation thereunder was improperly imposed, and Neal's obligation for child support during the relevant time is still not resolved. See Cannon v. Cannon, 270 Ga. 640, 514 S.E.2d 204 (1999). Accordingly, the temporary support judgment of the trial court must be reversed and the case remanded for entry of an order that complies with the statute. See Fladger v. Fladger, 296 Ga. 145, 149(2), 765 S.E.2d 354 (2014).

4. In its final judgment modifying child support, filed on November 13, 2013, the trial court ordered that Neal pay Hibbard $1,774 per month to support his son. Neal contends that in doing so, the court erred in imputing to him a gross monthly income of $18,750 when his financial affidavit showed only a gross monthly income of $7,032.27. As Neal recognizes, the trial court is empowered to impute income to a parent for willful or voluntary unemployment or underemployment. See OCGA § 19–6–15(f)(4)(D). See also Brogdon v. Brogdon, 290 Ga. 618, 620(3), 723 S.E.2d 421 ...