Stowell v. Huguenard.

• Decision Date: 28 February 2011
• Docket Number: No. S10A1700.,S10A1700.
• Parties: STOWELLv.HUGUENARD.
• Court: Georgia Supreme Court

288 Ga. 628

706 S.E.2d 419

11 FCDR 400

STOWELL

v.HUGUENARD.

No. S10A1700.

Supreme Court of Georgia.

Feb. 28, 2011.

Gibson, Deal, Fletcher & Dunham, William A. Fletcher, Jr., Norcross, for appellant.David S. Walker, Jr., Stone Mountain, for appellee.CARLEY, Presiding Justice.

James Stowell and Kathleen Huguenard were divorced in 2005, and the divorce decree established child support and alimony. After experiencing a substantial change in employment, Stowell filed a motion to modify child support and alimony on August 27, 2008. After a bench trial, the trial court entered an order modifying the 2005 divorce decree by reducing Stowell's child support obligation to $981.25 per month plus an annual payment of 25% of any gross commissions or other irregular income received above his $3,500 monthly base salary. After a motion for new trial was denied, Stowell filed an application for discretionary review in the Court of Appeals, which transferred the application to this Court pursuant to our jurisdiction over divorce and alimony cases. Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(6). See also Spurlock v. Dept. of Human Resources, 286 Ga. 512, 513–514(1), 690 S.E.2d 378 (2010). We granted the application to review certain provisions of the trial court's order modifying Stowell's child support obligation.

“ ‘The guidelines for computing the amount of child support are found in OCGA § 19–6–15 and must be considered by any court setting child support. (Cit.)’ [Cit.]” Roberts v. Tharp, 286 Ga. 579, 580(1), 690 S.E.2d 404 (2010). “The child support guidelines ... shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.” OCGA § 19–6–15(c)(1). Although this presumptive amount of child support is rebuttable, “deviations subtracted from or increased to the presumptive amount of child support [must be] ... supported by the required findings of fact and application of the best interest of the child standard ... [and] shall be entered on the Child Support Schedule E–Deviations.” OCGA § 19–6–15(b)(8).

According to the child support guidelines, the first step a court must take when calculating the presumptive amount of child support is to determine the monthly gross income of both parents. OCGA § 19–6–15(b)(1). OCGA § 19–6–15(m)(1) requires the court to use the child support worksheet, which should be attached to the final court order, to determine and calculate the presumptive amounts of child support. After determining and adjusting the gross income of each parent, the court must “compute the combined adjusted income” to use as the reference amount for locating “the amount of the basic child support obligation” set forth in the child support obligation table. OCGA § 19–6–15(b)(3), (4), ( o ). Once the basic child support obligation is determined, the court must calculate each parent's pro rata percentage of this amount to determine each parent's pro rata share of the basic child support obligation. OCGA § 19–6–15(b)(5). The court must then find the adjusted child support obligation amount for each parent by adding to each parent's pro rata share any health insurance or work related child care costs, again assigning to each parent his or her pro rata percentage of these amounts. OCGA § 19–6–15(b)(6). Finally, the court, using the calculated adjusted child support obligation amounts determined above, must “assign[ ] or deduct[ ] credit for actual payments for health insurance and work related child care costs.” OCGA § 19–6–15(b)(7). This final calculation will result in “the presumptive amount of child support[, which is] a sum certain single payment due to the custodial parent.” OCGA § 19–6–15(b)(7).

In the present case, the trial court attached the required child support worksheet to the modification order. It assigned a gross income per month of $3,500 to Stowell and a gross income per month of $1,912.75 to Ms. Huguenard. After adjusting Stowell's monthly income downward to $3,232.25 due to deductions for self-employment taxes, the court determined that the parties' combined monthly adjusted income was $5,145. According to the child support obligation table, the assigned basic child support obligation for a combined monthly adjusted income of $5,145 for two children is $1,308. OCGA § 19–6–15( o ). The court then divided each parent's adjusted income by the combined monthly adjusted income to find each parent's pro rata percentage and determined each parent's pro rata share of the basic child support obligation by multiplying that amount by the appropriate pro rata percentage. After adjusting for health care and work related child care expenses, the court determined that the presumptive child support amounts for Stowell and Ms. Huguenard were $981.25 and $326.75, respectively. This worksheet contains no reference to the trial court's requirement that Stowell pay 25% of any income over his base salary of $3,500 every month, and the trial court declared on the worksheet that there were no deviations to the presumptive child support amounts.

In its modification order, the trial court did include, in addition to the calculated presumptive amount of child support, a child support provision requiring Stowell to pay 25% of any monthly income earned over his base salary of $3,500 every month. However,

[w]hen ordering a deviation from the presumptive amount of child support, the court ... shall make written findings or special interrogatory findings that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined and the order or special interrogatory shall [answer further specified questions].

OCGA § 19–6–15(i)(1)(B). It is undisputed that the trial court did not articulate the required written and special interrogatory findings and

made no provision in its Schedule E for a deviation [from the presumptive amount of child support]. Instead, the court included a provision in the final judgment [requiring an additional amount of child support]. This a court is no longer entitled to do. Under the revised guidelines, a court may only deviate from the presumptive child support amount ... by complying with ... OCGA § 19–6–15(i)(1)(B).... Thus, ... the court ... was without authority to make a separate child support award ... outside the parameters of the Child Support Worksheet....

Turner v. Turner, 285 Ga. 866, 868(2), 684 S.E.2d 596 (2009).

Ms. Huguenard contends that the authority for the trial court's inclusion of this provision is found in OCGA § 19–6–15(f)(1)(D), which states that the court may “require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income.” However, OCGA § 19–6–15(f)(1)(D) is a provision to be used by the court when it is determining the gross income of each parent and does not purport to allow the court to require additional child support that is not incorporated into the child support calculations that determine the presumptive amounts of child support. Moreover, this construction of OCGA § 19–6–15(f)(1)(D) is contrary to the intent of the General Assembly when it passed the new child support guidelines that took effect on January 1, 2007.

“[I]nstead of calculating the child support based on the noncustodial parent's income, the new ‘income shares' model is designed to have the child support divided between the parties on a pro rata basis[ ]” ... [by requiring] a series of calculations to determine a presumptive amount of child support.

Hamlin v. Ramey, 291 Ga.App. 222, 223(1), 661 S.E.2d 593 (2008).

In effect, the trial court, by including the additional child support provision in its modification order, circumvented the guidelines' requirement that a court only may deviate from the presumptive amount of child support after making and applying the necessary findings of fact set forth in OCGA § 19–6–15(i)(1)(B). Moreover, the trial court's construction is contrary to the intent of the guidelines to have each parent contribute his or her pro rata share of child support. For example, under the trial court's modification order in this case, if Stowell earns $3,000 a month more than his base salary of $3,500, then Stowell's child support amount will exceed the presumptive child support amount required by the guidelines and thus constitute a deviation without any specific written findings. The basic child support obligation for a combined monthly adjusted income of $8,145 ($6,232.25 + $1,912.75) for two children is $1,572. OCGA § 19–6–15( o ). Stowell's pro rata percentage would be 76.5%, which would make his pro rata share $1,202.58. After adjusting for work related child care and health insurance expenses, Stowell's presumptive amount of child support, according to the guidelines, should be $1,362.14. However, under the trial court's modification order, Stowell must pay the presumptive child support amount of $981.25 plus 25% of $3,000, for a total sum of $1,731.25, approximately $370 above the guidelines' presumptive child support amount for a combined monthly income of $8,145 for two children. Therefore, Stowell will be paying more than his pro rata share of child support, which, unless supported by written findings of fact, is contrary to the intent of the child support guidelines. We also note that since Stowell is required to pay 25% of any income above the base salary of $3,500, it is highly likely that Stowell will have a different child support obligation every year, which flies in the face of the requirement that the presumptive child support amount consist of “a sum certain” that may only be varied if the trial court specifically finds deviations that are supported by written findings of fact. OCGA § 19–6–15(b)(7), (8).

Ms. Huguenard also contends that the trial court has the discretion to award the additional child support pursuant to OCGA § 19–6–15(d), which provides that the...