Spirnak v. Meadows

• Citation: 844 S.E.2d 482,355 Ga.App. 857
• Decision Date: 08 June 2020
• Docket Number: A20A0158
• Parties: SPIRNAK v. MEADOWS.
• Court: United States Court of Appeals (Georgia)

355 Ga.App. 857

844 S.E.2d 482

SPIRNAK

v.MEADOWS.

A20A0158

Court of Appeals of Georgia.

June 8, 2020

Reconsideration Denied June 26, 2020

Beverly L. Cohen, Roswell, for Appellant.

Kathryn Meadows, pro se

Markle, Judge.

Stephen Spirnak, Jr., appeals from the trial court's order denying his petition for modification of custody and child support. On appeal, he raises numerous claims of error regarding (1) conditions imposed in the parenting plan and with respect to his visitation; (2) the denial of his request to reduce the amount of child support; (3) the calculation of his gross income for purposes of determining child support; (4) the inclusion and calculation of interest on the amount of support past due; (5) the award of attorney fees; and (6) the trial court's adoption of the final order drafted by the respondent. For the reasons that follow, we affirm the trial court's order in all respects except as to the calculation of a parenting time deviation in the amount of child support, the amount of interest owed, and the amount of attorney fees awarded. We vacate those portions of the order, and remand the case with direction for the trial court to provide sufficient findings to enable appellate review of these issues and to correct a scrivener's error in the child support addendum.

On review of an order modifying a child custody arrangement, "this Court views the evidence in the record in the light most favorable to the trial court's order and will affirm the trial court's decision if there is any evidence to support it." (Citation and punctuation omitted.) Lowry v. Winenger , 340 Ga. App. 382, 797 S.E.2d 230 (2017). We are "mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility." (Citation and punctuation omitted.) Gordy v. Gordy , 246 Ga. App. 802, 803 (1), 542 S.E.2d 536 (2000).

So viewed, the record shows that Spirnak and Kathryn Westberry Meadows are parents to a child born in 2009. The parties never married, and Spirnak legitimated the child in 2010. Per the terms of the legitimization and custody order, Meadows retained primary physical custody of the child, and Spirnak was entitled to visitation every other weekend and various holidays. The trial court ordered Spirnak to pay $650 per month in child support, plus a portion of the child's medical expenses and Meadows's prenatal costs. At the time of the initial custody order, Meadows lived in Savannah, and Spirnak lived in Atlanta.

In 2013, Meadows moved out of state, and over the next few years, she and the child resided in Alabama, Maryland, and eventually Florida. At that time, Spirnak began to pay only $450 per month in child support,¹ and started to decrease his visits with the child. In fact, in 2014, Spirnak only exercised his visitation in July, November, and December. In 2015, he exercised visitation in January, April, July, and December. And in 2016, Spirnak only exercised visitation in April.

Between 2011 and 2014, Spirnak had been employed as a marketing and sales person, earning between $55,000 and $67,000 per year until he was laid off in July 2014. Notably, in January 2013, Spirnak was diagnosed with cancer, and he began treatment in 2014. By the time of the hearing on his petition for modification, however, he was no longer receiving treatments and no doctor had placed any limitations on his ability to work. Nevertheless, despite having approximately 15 years of sales and marketing experience, following his lay-off, Spirnak began to work only part time as a self-employed tree specialist and ceased making most of his child support payments. In 2015, Meadows filed a claim for recovery of unpaid child support.²

In 2016, Spirnak filed the instant petition, seeking to modify the amount of child support he was obligated to pay due to the change in his income, and he requested a modification in the visitation schedule because the child lived in another state. Meadows filed a counterclaim for contempt due to Spirnak's failure to pay child support or his share of the child's medical expenses. She also requested modifications to the custody order to impose an upward deviation in child support due to Spirnak's lack of visitation and to require supervised visits.

During the final hearing on the petition, Spirnak testified that he had significant outstanding debt from his medical bills and cancer treatment, as well as student loans, payments due to the IRS, and credit card debt. He further explained that he had been unemployed for 15 weeks in 2014, and was currently working only part time. He claimed that he earned only $11,890 in 2015 and just over $14,000 in 2016. He had no evidence to support his claims that he had looked for work following his lay-off. Additionally, while working part time, Spirnak moved to a new home. He also attended a variety of sporting events, took vacations, and went to restaurants and bars.

In support of his claim that his financial status had changed, he proffered his list of clients and his calendar showing jobs he had worked, admitting repeatedly that he was a bad bookkeeper and had not kept all his receipts. He had no invoices to show his income or work. He also submitted a financial affidavit in which he listed his gross monthly income for 2017 as $2,220, with monthly expenses to creditors of $1,901. He submitted an amended affidavit in 2018, estimating his annual income at $30,000 to $40,000, and a copy of some hospital bills showing that only a small amount of payment was outstanding, which did not support the amount he claimed at the hearing. He submitted his tax returns from 2015, but not 2016 or 2017. He also submitted a list of checks made in payment of his child support obligations, the total of which was $20,918.97.

Additionally, between 2012 and 2014, Spirnak was arrested several times and pled guilty to family violence battery and nolo contendere to simple battery in connection with an altercation between Spirnak and a former girlfriend. He was arrested again in 2016 on similar charges.

In support of her claim for child support arrearage, Meadows submitted a spreadsheet detailing the amount due and the amount paid, with the interest accrued each year. She calculated the interest as $4,807.47.

Meadows then explained that she was seeking attorney fees due to the need to defend against the petition for modification of support and as a result of the difficulties in obtaining records to establish Spirnak's earnings. She noted that she had filed several motions to compel both Spirnak and his former employers to produce documentation, and that when the employers and Spirnak failed to comply, she had filed motions for contempt.

The trial court denied Spirnak's petition to modify child support and granted Meadows's counterclaim for modification and contempt. Relevant to this appeal, the trial court specifically found that (1) an upward deviation in child support was warranted under OCGA § 19-6-15 (g) and (i) (2) (K) based on Spirnak's failure to exercise visitation; (2) supervised visitation was appropriate under OCGA §§ 19-9-3 and 19-9-7 in light of Spirnak's past instances of domestic violence; (3) Spirnak was in contempt for failing to pay outstanding child support, prenatal expenses, and medical expenses per the terms of the original custody order; (4) Meadows was entitled to interest on the arrearage in the amount of $4,807.47; (5) Spirnak was not entitled to a retroactive reduction in child support given the lack of any reliable evidence of his income; and (6) Spirnak was not entitled to a downward modification in child support because he was voluntarily underemployed. Accordingly, the trial court awarded Meadows $30,187.48 in outstanding child support and accrued interest of $4,807.47.

The trial court then determined the amount of child support due going forward as $818 per month, imputing income based on the averages of Spirnak's prior employment and imposing a deviation based on Spirnak's lack of visitation. Additionally, in the parenting plan, the trial court imposed the condition that overnight visitation be supervised by Spirnak's mother, and it required Spirnak to provide contact information for his mother and any of his roommates. The trial court further found that Meadows would not be required to incur any additional travel expenses to enable visitation until Spirnak had paid the arrearage in child support due to the financial hardship Meadows experienced as the result of Spirnak's failure to pay, and it specified that the parties could arrange for the child to travel by airplane for visitation once the child reached 14 years of age.

Finally, as to attorney fees, the trial court awarded Meadows $32,000 in fees and expenses under OCGA §§ 19-6-2, 19-6-15, 19-9-3, and/or 9-15-14 due to Spirnak's failure to produce discovery even after being ordered to do so and being held in contempt. The trial court expressly found that Spirnak's petition lacked substantial justification and was frivolous, and that his conduct during discovery unnecessarily expanded the litigation. Spirnak now appeals.

1. In his first enumeration of error, Spirnak argues that the trial court erred in ordering that his visitation with the child be supervised because there was no finding of a change in circumstances, no evidence of any violence toward Meadows or the child, and no agreement from his mother to supervise the visits. We review a trial court's order modifying visitation for abuse of discretion, Moore v. Moore , 217 Ga. App. 148, 149 (1), 456 S.E.2d 742 (1995), and we discern no such abuse of discretion here.

To begin, the trial court was authorized to consider changes in visitation without addressing whether there were changed circumstances. See OCGA § 19-9-3 (b).³

Turning then to the merits of the order for supervised visitation, under OCGA § 19-9-7 (a) (2),...