Russ v. Russ

• Decision Date: 30 May 2000
• Docket Number: No. S00A0665.,S00A0665.
• Citation: 530 S.E.2d 469,272 Ga. 438
• Parties: RUSS v. RUSS.
• Court: Georgia Supreme Court

530 S.E.2d 469

272 Ga. 438

RUSS v. RUSS.

No. S00A0665.

Supreme Court of Georgia.

May 30, 2000.

C. Suzette Ellis-Hoyle, Decatur, for appellant.

Kevin L. Russ, pro se.

CARLEY, Justice.

Stephanie Russ brought suit for divorce, and her husband, Kevin Russ, was personally served. Subsequently, an amended complaint and a notice of trial were sent to Mr. Russ' last known address. The notice of trial was returned with the notation that he had moved to Ohio and left no forwarding address. Mr. Russ neither filed any responsive pleading nor appeared for trial. The trial court entered a final judgment of divorce, but found that Mr. Russ' whereabouts and place of employment are unknown and that, "[a]s a result, there is no basis on which an award of child support could be granted." Ms. Russ applied to this Court for a discretionary appeal. Thereafter, the trial court attempted to amend its judgment so as to award certain real property to Ms. Russ, but that amendment is a mere nullity. Nest Investments v. Tzavaras, 221 Ga.App. 282, 471 S.E.2d 223 (1996); In the Interest of A.R.B., 209 Ga.App. 324(1), 433 S.E.2d 411 (1993). She appeals pursuant to our grant of her application for discretionary appeal. Mr. Russ has filed no responsive brief in this appeal.

1. Ms. Russ contends that the trial court erred by entering a final decree of divorce without addressing or resolving the issue of child support. If the trial court in a divorce action is unable to obtain jurisdiction over the noncustodial parent so as to enter a binding award of child support, Georgia law expressly authorizes a subsequent application for such support. OCGA § 19-6-17(a)(2). In this case, however, Mr. Russ was a Georgia resident and he was personally served. Thus, the difficulty was not a lack of jurisdiction over Mr. Russ, but rather his failure to assert any defense. "In divorce cases which are not defended by the responding party,... [a]n evidentiary hearing for the determination of ... child support ... and other issues is authorized but not required." OCGA § 19-5-10(a). Under this Code section, a trial court clearly is authorized to rule on the issue of child support despite the defendant's absence. Indeed, a trial court may fix child support without even holding an evidentiary hearing, based upon a consideration of the verified pleadings, affidavits, "or such other basis or procedure as the court may deem proper in its discretion." OCGA § 19-5-10(a). Thus, the trial court in this case erred to the extent that it based the refusal to award child support upon the fact that Mr. Russ' whereabouts are unknown. He was served in Georgia and his current location is irrelevant to the jurisdiction of the trial court to determine his obligation for the support of his child.

Mr. Russ' current place of employment and current income also are unknown. Even after enactment of the child support guidelines in OCGA § 19-6-15, however, there are certain circumstances in which trial courts may use earning capacity rather than gross income to determine the amount of child support. Duncan v. Duncan, 262 Ga. 872, 873(1), 426 S.E.2d 857 (1993). Such circumstances include, as in this case, the absence of any evidence as to actual income. Gordon v. Gordon, 244 Ga. 21, 22, 257 S.E.2d 528 (1979); Pierce v. Pierce, 241 Ga. 96, 98(1), 243 S.E.2d 46 (1978). In fact, a trial court can award child support whenever it appears that the noncustodial parent has some minimal earnings potential in an unskilled capacity and, as here, he has produced no evidence that by reason of mental or physical disability he is unable to earn an income. Hamner v. Hamner, 223 Ga. 463, 464, 156 S.E.2d 19 (1967); Hubbard v. Hubbard, 214 Ga. 294, 295(2), 104 S.E.2d 451 (1958). See also Pierce v. Pierce, supra at 99(1), 243 S.E.2d 46.

The trial court did not base its decision upon any deficiency in the evidence of earning capacity, but rather upon the erroneous legal theory that there was no basis to authorize an award of child support. Therefore, the trial court committed reversible error, and this Court cannot affirm the judgment by application of the "right for any reason" rule. Huff v. Valentine, 217 Ga.App. 310, 311(1), 457 S.E.2d 249 (1995). Notwithstanding the absence of Mr. Russ from the trial, the issue of child support was "contestable" and should have been finally resolved in the divorce decree. Uniform Superior Court Rule 24.7; Edwards v. Edwards, 260 Ga. 440, 396 S.E.2d 236 (1990).

2. Ms. Russ also complains of the trial court's failure to address and resolve certain issues regarding medical insurance and other child-rearing expenses. There is no transcript, and the record does not show the nature or existence of any requests for an award of these expenses. However, the trial court may have considered any such requests as encompassed within its erroneous ruling that there is no basis for child support because Mr. Russ' whereabouts and place of employment were unknown. Therefore, we leave whatever additional requests were made by Ms. Russ for further evaluation by the trial court on...