Spurlock v. Department of Human Resources

• Decision Date: 15 February 2010
• Docket Number: No. S09A1475.,S09A1475.
• Citation: 690 S.E.2d 378
• Parties: SPURLOCK v. DEPARTMENT OF HUMAN RESOURCES et al.
• Court: Georgia Supreme Court

690 S.E.2d 378

SPURLOCK v. DEPARTMENT OF HUMAN RESOURCES et al.

No. S09A1475.

Supreme Court of Georgia.

February 15, 2010.

Scott E. Spurlock, pro se.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Mark J. Cicero, Assistant Attorney General, Martin L. Fierman, Eatonton, John R. Sikes, Macon, for appellees.

CARLEY, Presiding Justice.

Scott Spurlock (Father) and Lois Spurlock (Mother) were divorced in 2005. Pursuant to the final divorce decree, Father was ordered to pay monthly child support of $1,063. Three years later, he initiated a review of that child support order by the Department of Human Resources (DHR) pursuant to OCGA § 19-11-12. DHR recommended that his child support obligation be reduced to $718 per month, and petitioned the trial court to adopt that recommendation.

The trial court did not fully adopt DHR's recommendation, but did order that Father's child support obligation be reduced to $1,000 per month. Acting pro se, Father appealed to the Court of Appeals pursuant to its grant of an application for discretionary appeal. The Court of Appeals then transferred the case to this Court based upon our jurisdiction over divorce and alimony cases. Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(6).

1. We initially determine whether a modification of child support arising out of a DHR review under OCGA § 19-11-12 invokes this Court's divorce and alimony jurisdiction.

"Case law has recognized for over a century that alimony includes support for children, leaving no question regarding the relationship of child support to alimony. Cits." Jones v. Jones, 280 Ga. 712, 716(2), 632 S.E.2d 121 (2006). See also Conley v. Conley, 259 Ga. 68, 69(2), 377 S.E.2d 663 (1989); Veal v. Veal, 226 Ga. 285, 287(2), 174 S.E.2d 435 (1970). Alimony may be recovered outside the context of a divorce proceeding. However, the right to make a claim for "alimony depends upon a valid, subsisting marriage between the applicant and the person out of whose estate the allowance of alimony is claimed, and this is true even though it is claimed only for the support of a child. Cits." Eskew v. Eskew, 199 Ga. 513(2), 34 S.E.2d 697 (1945). Thus, an award of child support always constitutes alimony if it is made in a divorce decree proceeding, but it may or may not represent alimony outside the divorce context.

Accordingly, we have jurisdiction over a case involving an original claim for child support which arose in either a divorce or alimony proceeding. Compare O'Quinn v. O'Quinn, 217 Ga. 431, 122 S.E.2d 925 (1961). Furthermore, actions for modification of alimony either for support of a former spouse or of a child, so long as the original award arose from a divorce or alimony proceeding, have always been within this Court's jurisdiction. Perry v. Perry, 213 Ga. 847, 849(1), 102 S.E.2d 534 (1958). See also Parker v. Parker, 277 Ga. 664, 594 S.E.2d 627 (2004); Iannicelli v. Iannicelli, 169 Ga.App. 155(1), 311 S.E.2d 850 (1983).

This Court routinely exercises its divorce and alimony jurisdiction when actions for modification of child support previously awarded in a divorce decree are brought by a parent pursuant to OCGA § 19-6-19. See Jones v. Jones, supra; Moccia v. Moccia, 277 Ga. 571-572(1), 592 S.E.2d 664 (2004); Wilson v. Wilson, 270 Ga. 479, 512 S.E.2d 255 (1999); Wingard v. Paris, 270 Ga. 439, 511 S.E.2d 167 (1999); Robertson v. Robertson, 266 Ga. 516, 518(1), 467 S.E.2d 556 (1996). Likewise, this Court has repeatedly exercised jurisdiction in cases involving DHR's review pursuant to OCGA § 19-11-12 of child support awards originally established in a divorce decree. See Falkenberry v. Taylor, 278 Ga. 842, 607 S.E.2d 567 (2005); Department of Human Resources v. Allison, 276 Ga. 175, 575 S.E.2d 876 (2003); Department of Human Resources v. Holland, 263 Ga. 885, 440 S.E.2d 9 (1994); Allen v. Ga. Dept. of Human Resources, 262 Ga. 521, 423 S.E.2d 383 (1992).

An action for child support modification under OCGA § 19-11-12 is neither inconsistent with, nor materially distinguishable from, a modification action under OCGA § 19-6-19, such that the former, unlike the latter, does not invoke this Court's jurisdiction. Although the two code sections were enacted for different legislative purposes, "the review and modification proceedings of OCGA § 19-11-12 are reconciled to and consistent with the modification proceedings set forth in OCGA § 19-6-19." Kelley v. Ga. Dept. of Human Resources, 269 Ga. 384, 386(2), 498 S.E.2d 741 (1998).

Therefore, we hold that appeals from orders in proceedings for modification of a child support award which arose from a prior divorce or alimony action, regardless of the code section under which the modification was pursued, are subject to the jurisdiction of this Court. Because this case involves alimony for the support of children, we retain it and proceed to make all other necessary determinations.

2. After the Court of Appeals transferred the case here, we denied a motion to dismiss in which Mother argued that, because jurisdiction is properly in this Court, the Court of Appeals lacked jurisdiction to grant the application for discretionary appeal, and that such grant is therefore void. For the same reason, Justice Nahmias opines in his special concurrence, not that the appeal should be dismissed, but rather that, in accordance with certain unpublished orders, we should strike the transferred appeal and re-docket it as a granted application. However, such unpublished orders serve as neither binding nor physical precedent. Tunnelite v. Estate of Sims, 266 Ga.App. 476, 480(3), 597 S.E.2d 555 (2004). It appears that we have just as often followed a different practice, as revealed in our published opinions. That practice has been simply to resolve the appeal. Parker v. Parker, 277 Ga. 664, 665, 594 S.E.2d 627 (2004); Etheredge v. All American Hummer Limousines, 269 Ga. 436, 437, 498 S.E.2d 60 (1998); Kumar v. Hall, 262 Ga. 639, 640, 423 S.E.2d 653 (1992). Although the question merely lurked in the record in those cases, such practice is supported by the only relevant authority which has clear precedential value: When this Court granted an application and then transferred the appeal, we observed that "the Court of Appeals may consider the case as it would if it had granted the application." Collins v. AT & T, 265 Ga. 37, 38, 456 S.E.2d 50 (1995).

Moreover, the procedure which we followed in the unpublished orders cited by Justice Nahmias is plainly unnecessary. Striking and re-docketing this appeal is not required to preserve our ultimate jurisdiction over the application. The special concurrence contains absolutely no authority that, whenever a case is transferred for jurisdictional reasons, every prior decision in the case must be formally vacated merely so that the receiving court can determine every motion or application anew. Throughout the pendency of this appeal, we have had the option to exercise our jurisdiction by dismissing the appeal as having been improvidently granted. By declining to do so, we have not ignored the jurisdictional limits set forth in the special concurrence, and instead have implicitly determined that the application was properly granted. In that way, we have not only exercised our jurisdiction, we have also chosen not to slow down the already delayed appellate consideration of this case.

3. Father contends that the trial court erred in failing to make written findings in accordance with OCGA § 19-6-15(c)(2)(E)(iii) and (i)(1)(B)(iii) of the presence or absence of special circumstances justifying a departure from the presumptive amount of child support called for in that statute's guidelines.

Mother relies in part on the absence of any transcript of the proceedings and the resulting presumption of regularity. However, a lack of mandatory written findings "`overcomes the presumption of regularity. (Cit.)' Cit." Georgia Casualty & Surety Co. v. Valley Wood, 290 Ga.App. 177, 178(1), 659 S.E.2d 410 (2008). See also Gilchrist v. Gilchrist, 287 Ga.App. 133, 134(1), 650 S.E.2d 795 (2007). "Even presuming the evidence supported the trial court's actions, we must first have the required findings of fact for review so that we know that the court considered the correct factors in exercising its discretion." Rogers v. Norris, 262 Ga.App. 857, 858(1), 586 S.E.2d 747 (2003). See also Department of Human Resources v. Wilcox, 219 Ga.App. 757, 758, 466 S.E.2d 662 (1996) (where no transcript and no written findings pursuant to OCGA § 19-6-15, order modifying child support pursuant to DHR review vacated and case remanded for written findings). To the extent that Carson v. Carson, 226 Ga.App. 659, 660(3), 487 S.E.2d 447 (1997) holds otherwise, it is hereby overruled.

Mother also argues that OCGA § 19-11-12 does not require the trial court to apply the guidelines or to take any action at all, because subsection (e) of that statute provides that, when the trial court finds a significant inconsistency between existing child support and the amount resulting from application of the guidelines in OCGA § 19-6-15, "the trier of fact may use this inconsistency as the basis to increase or decrease the amount of support ordered." (Emphasis supplied.) However,

Section 19-11-12 complies with the federal mandate that requires States to put in place effective procedures whereby every three years, the State conducts a review of support orders being enforced and, if appropriate, adjusts those orders in accordance with current statutory guidelines established for the determination of appropriate child support award amounts. Cit.

Kelley v. Ga. Dept. of Human Resources, supra at 387(3), 498 S.E.2d 741. See also 42 USC §§ 666(a)(10)(A)(i)(I), 667(a). In light of its state and federal statutory context and of this Court's precedent, we conclude that OCGA § 19-11-12(e) serves a purpose similar to OCGA § 19-6-15(d), which provides that any court applying the child...