Steed v. Steed

• Decision Date: 07 May 2020
• Docket Number: A20A0316
• Citation: Steed v. Steed, 843 S.E.2d 21, 356 Ga.App. 194 (Ga. App. 2020)
• Court: Georgia Court of Appeals
• Parties: STEED v. STEED.

356 Ga.App. 194

843 S.E.2d 21

STEED

v.STEED.

A20A0316

Court of Appeals of Georgia.

May 7, 2020

Reconsideration Denied July 9, 2020

Sammie Mark Mitchell, for Appellant.

Johnston & Owen, Lance Newton Owen, Griffin, for Appellee.

Coomer, Judge.

Christopher Steed ("Father") appeals from the trial court's order declining to modify the parenting plan for his three minor children, increasing the amount of child support he is required to pay, and awarding attorney fees to his ex-wife. On appeal, Father argues that the trial court erred in (i) not modifying the parenting plan; (ii) its calculation of child support; and (iii) awarding attorney fees. For the following reasons, we vacate the trial court's award of attorney fees, and affirm the remainder of the order.

Father and Margaret Steed ("Mother") were divorced in 2015. The final divorce decree awarded Father and Mother joint legal custody over the couples’ three minor children and primary physical custody to Mother. In addition, the decree ordered Father to pay Mother $3,535 per month in child support. In 2017, Father filed a petition to modify the parenting plan and child support. Following a hearing, the trial court declined to modify the parenting plan, increased the amount of child support owed by Father each month, and awarded $26,250 in attorney fees to Mother. This appeal followed.

Child custody modification

Father argues that since the divorce, a change in circumstances affecting the welfare of the children necessitates a change in custody. Specifically, he alleges that the following evidence demonstrated a change in circumstance: (i) Mother moved several times since the divorce, (ii) the moves resulted in changes in school for the children, (iii) a "parade of nannies" was used to care for the children, and (iv) Mother "prioritizes her interests" above those of the children, and uses them as "pawns" in disagreements with Father.

In its order, the trial court found that Father had "not demonstrated a material change of conditions or circumstances that would authorize the Court to modify child custody" and that the terms from the original decree would remain in effect.

Child support

Initially, Father requested no child support modification. In an amended answer to Father's petition, Mother alleged that Father's income had increased substantially, and sought an increase in child support. Father later amended his pleading after undergoing shoulder surgery in October 2018. Based on the surgery, he sought a downward modification of child support because an extended recovery forced him out of work, and he received temporary disability benefits of $6,000 per month.

In the final order, the trial court made detailed findings in which it determined that at the time of divorce in 2015 Father earned $18,000 per month. For the tax years 2017 and 2018, Father earned an average of $31,126.06 per month. The trial court therefore increased the amount of child support owed from $3,535 per month to $4,149 per month. The trial court made no mention of Father's surgery or request for a downward modification.

Attorney fees

At the hearing, Mother testified that she paid her current attorney $7,256.17 to date, and owed him another $7,670.37. She also testified that she had paid her prior attorney $7,000 and that she still owed that attorney another $44,000. There were no bills presented, and no testimony from either of Mother's attorneys as to the reasonableness of the fees. Ultimately, the trial court awarded $26,250 in attorney fees to Mother. This appeal followed.

1. Father argues that the trial court erred in denying his petition to modify the parenting plan. We disagree.

Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case. Our review of the trial court's determination on this issue is for abuse of discretion, and where there is any evidence to support the trial court's finding, we will not find there was an abuse of discretion.

Burnham v. Burnham , 350 Ga. App. 348, 351 (2), 829 S.E.2d 425 (2019) (citations and punctuation omitted).

Father contends that the evidence he relies on to support his argument that a change in condition occurred — that Mother frequently moves, the children often change schools, and that Mother generally turns the children against Father — are the types of actions taken by a parent that our appellate courts have consistently held warrants a finding of change in circumstances. Father is correct that we have concluded these types of actions by a parent can warrant a finding of a change in circumstances. See e.g., Lowry v. Winenger , 340 Ga. App. 382, 385 (1), 797 S.E.2d 230 (2017) (changes in school arrangements was a factor in authorizing a change of custody); Neal v. Hibbard , 296 Ga. 882, 884 (1), 770 S.E.2d 600 (2015) ("[A] relocation of a parent is a factor that the trial court can consider in determining the best interests of the child."); Adams v. Adams , 219 Ga. 633, 635, 135 S.E.2d 428 (1964) (attempt by divorced parent to poison mind of child against other parent would authorize the judge in the exercise of his discretion to make a change in custody).

We cannot say, however, that as a matter of law, the trial court was required to accept the evidence on these factors and determine that a change in circumstances occurred. Having heard all of the evidence, the trial court found that the discord in the family was a result of the parents having issues between themselves. Specifically, the trial court concluded that the parents "do not get along, and again ... are having a custody dispute over their children.... [T]he nightmare is this constant tug of war that occurs from both parents. And the rope – the ropes are 10, 8, and 6 years old." Having found that the litigious family dynamic was a result of the parents’ hostile relationship, the trial court then correctly concluded that there was no material change in circumstances. See Cousens v. Pittman , 266 Ga. App. 387, 390, 597 S.E.2d 486 (2004) (evidence of the divorced parties’ bickering and hostile relationship continuing since the divorce was not a new or material change in circumstances); Park-Poaps v. Poaps , 351 Ga. App. 856, 862 (2), 833 S.E.2d 554 (2019) ("[P]arental discord that has been ongoing since before the prior custody award does not constitute a material change in circumstances.").

Moreover, the trial court also found that even if there were a material change in circumstances, it would not be in the best interests of the children to modify the original parenting plan. See Fifadara v. Goyal , 318 Ga. App. 196, 197, 733 S.E.2d 478 (2012) ("Any change in custody is subject to the trial court's discretion based on the best interests of the child."). Deferring to the trial court's factual determinations based on the evidence in the record, we find that it appropriately considered all relevant factors, and that there is no basis to reverse its ruling.

2. Father next argues that the trial court was required to grant his request for a downward modification in child support. We disagree.

Father maintains that because he suffered an involuntary loss of income resulting from his shoulder surgery, the trial court was obligated to impose a downward departure. OCGA § 19-6-15 (j) (1) provides in pertinent part that

[i]n the event a parent ... incurs a loss of health ... resulting in a loss of income of 25 percent or more, then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification, provided that service is made on the other parent.

Father argues that the language "shall not accrue" means that the trial court lacks discretion and must apply a downward departure. However, our Supreme Court has explained that

OCGA § 19-6-15 (j) does not simply authorize a child support obligor who has suffered involuntary loss of income and seeks a downward modification to begin paying what he or she calculates as the new amount of child support; what it does provide is that, should the party seeking the downward modification prevail on a petition seeking to do so, "then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification...." But, the fact that a child support obligor faced with a reduction in income has submitted a petition for modification with a worksheet setting forth a certain amount for child support does not render the resulting income and support figures binding upon the trial court. Rather, the trial court can determine whether the income figure put forth by the

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