Wetherington v. Wetherington

• Decision Date: 15 October 2012
• Docket Number: No. S12A1001.,S12A1001.
• Parties: WETHERINGTON v. WETHERINGTON.
• Court: Georgia Supreme Court

291 Ga. 722

732 S.E.2d 433

WETHERINGTON

v.WETHERINGTON.

No. S12A1001.

Supreme Court of Georgia.

Oct. 15, 2012.

Patrick Joseph Fox, McNally, Fox, Grant & Davenport, P.C., Fayetteville, for appellant.

Alan W. Connell, Connell & Wheeler, Thomaston, for appellee.

NAHMIAS, Justice.

We granted Husband's application for discretionary appeal to consider whether the trial court erred in determining Husband's child support obligation in ruling on his petition for downward modification of child support. As explained below, the trial court did err in this respect. Husband raises two other issues, only one of which has merit, so we affirm the trial court's judgment in part, reverse it in part, and remand for redetermination of child support.

1. R. Edward Wetherington (Husband) and Elizabeth L. Wetherington (Wife) entered into a settlement agreement in October 2007, which was incorporated into the final decree of their divorce filed on January 15, 2008. The settlement agreement said that Husband's “gross annual income is approximately $300,000,” while Wife's is “approximately zero,” and he agreed to pay $7,000 per month in child support for the parties' two children (with the amount decreasing when the oldest child turned 18). The parties also agreed that they would evenly share the financial obligations associated with their ownership interest in a vacation condominium. In the divorce decree, the trial court found that Husband's gross monthly income was $25,000, which, with no adjustments, lead to a presumptive child support amount of $2,884 per month. See OCGA § 19–6–15( o) (setting forth the schedule of basic child support obligations based on adjusted gross income). However, the court imposed the $7,000 per month obligation from the settlement agreement, explaining that it was deviating from the presumptive amount based on the parties' agreement, which the court found was in the best interests of the children. See OCGA § 19–6–15(c) (providing that the parties may enter “into an enforceable agreement contrary to the presumptive amount of child support which may be made the order of the court pursuant to review by the court of the adequacy of the child support amounts negotiated by the parties”).

On October 15, 2008, Husband filed a petition for downward modification of child support based on an alleged material reduction in his income. In April 2009, the trial court temporarily reduced Husband's obligation to $5,950 per month. In April 2010, Husband amended his modification petition to add a count for contempt, alleging that Wife had not paid her share of expenses for the vacation condominium as required under the settlement agreement and divorce decree. In June 2010, Wife filed a motion for contempt against Husband based on his alleged failure to pay his full child support obligation.

At the February 21, 2011, final hearing on the modification and contempt actions, Husband, who is a certified public accountant, testified that in October 2007, the local CPA firm for which he worked merged with a national firm. He said that his $300,000 annual income listed in the settlement agreement consisted of a $60,000 signing bonus that he received in the fall of 2007, a $180,000 salary for 2008, and a $60,000 performance bonus for 2008 if his group met its revenue targets. In year two of his contract with the national firm, he was to receive a $210,000 salary, with the possibility of a $90,000 performance bonus. The parties agree that in May 2008, Husband realized that his income would be significantly less than $300,000, and his 2008 gross annual income was actually $183,213.60. In 2009, Husband earned $219,267, but he lost his job with the national firm in October 2009. In late 2009, he accepted a new job that began in January 2010, earning $152,388 per year or $12,699 per month. Husband testified that he did not expect to earn more in 2011 than he did in 2010 and that his present income did not enable him to pay even $5,950 per month in child support.

When Husband was testifying about Wife's unpaid share of the condominium expenses, she stipulated that the amount at issue was $28,806.62. Wife testified that Husband paid his child support obligation until November 2010, at which time he unilaterally reduced the payment from the required $5,950 per month to $3,000 per month.

On August 11, 2011, the trial court entered an order on the modification and contempt actions. The court found that Husband “agreed to the deviation set out in the [Settlement] Agreement and is bound by his actions,” but said it would give Husband “credit for his actual 2007 income of $240,000.00 instead of 300,000.00” and then concluded that, because $240,000 is 80% of $300,000, Husband's “child support shall be adjusted to 80% of $7,000.00 or $5,600.00 per month.” The court also found that Husband was in contempt for failing to pay $11,800 in child support and provided that he could purge himself of the contempt by paying Wife $655.55 per month for 18 months. Finally, the trial court held Wife in contempt for her failure to pay her share of the condominium expenses, finding that “the amount owed by [Wife] to [Husband] is $19,200.00 as of February 21, 2011,” and providing that she could purge herself of the contempt by paying Husband $650 per month until the $19,200 is paid in full.

We granted Husband's application for discretionary appeal, and he filed a timely notice of appeal.

2. (a) Husband contends that the trial court erred in failing to consider whether there had been a substantial change in his financial circumstances between the time of the divorce decree and the modification hearing and in failing to apply the child support guidelines of OCGA § 19–6–15 in calculating the new amount of his child support obligation. We agree.

OCGA § 19–6–15(k)(1) authorizes a parent to petition for modification of a child support award if “there is a substantial change in either parent's income and financial status or the needs of the child.” The statute then says,

In the hearing upon a petition for modification, testimony may be given and evidence introduced relative to the change of circumstances, income and financial status of either parent, or in the needs of the child. After hearing both parties and the evidence, the court may modify and revise the previous judgment, in accordance with the changed circumstances, income and financial status of either parent, or in the needs of the child, if such change or changes are satisfactorily proven so as to warrant the modification and revision and such modification and revisions are in the child's best interest.

OCGA § 19–6–15(k)(4).

We have explained that “[t]he showing of a change in [the parent's] financial status or a change in the needs of the child ... is a threshold requirement” in a modification action. Wingard v. Paris, 270 Ga. 439, 439, 511 S.E.2d 167 (1999). If the trial court determines that there has been such a change, the court must then enter a “written order specifying the basis for the modification ... and shall include all of the information set forth in paragraph (2) of subsection (c) of this Code section,” OCGA § 19–6–15(k)(4), which includes application of the statutory child support guidelines.¹ In addition, OCGA § 19–6–15(c)(1) provides,

The child support guidelines contained in this Code section are a minimum basis for determining the amount of child support and shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent. This Code section shall be used when the court enters a temporary or permanent child support order in a contested or noncontested hearing....

Thus, if the trial court finds a change in a parent's financial circumstances warranting modification of a child support award, the court must “reconsider the amount of child support” using the child support guidelines. Wingard, 270 Ga. at 440, 511 S.E.2d 167. “As this court has recognized, the child support guidelines apply not only to initial determinations of child support, but also to modification actions, and are the expression of the legislative will regarding the calculation of child support and must be considered by any court setting child support.” Id. (citations and quotation marks omitted). Accord Stowell v. Huguenard, 288 Ga. 628, 628–629, 706 S.E.2d 419 (2011).

The trial court in this case did not address whether there had been a change in the financial circumstances of Husband or the needs of the children since the original child support award in January 2008, and the court did not use the child support guidelines in calculating Husband's modified child support obligation. Instead, the court ruled that Husband was “bound” by the terms of the parties' October 2007 settlement agreement, but with the substitution of $240,000 in income for the $300,000 specified in the agreement and found by the trial court in the final divorce decree, based on Husband's “actual 2007 income,” ² and with the new child support obligation set at 80% of the original $7,000. If Husband's financial status had not substantially changed, then no modification was appropriate. If modification was appropriate, then the court was required to use the child support guidelines to calculate the new amount.

(b) Wife concedes that the trial court's order does not comply with Georgia law, but she suggests two reasons why it was appropriate for the trial court not to follow the statutory scheme of first determining whether there had been a change in Husband's financial circumstances and, if so, then applying the child support guidelines to determine his new payment amount. First, Wife contends that Husband was estopped from seeking to lower his child support obligation because, pursuant to the settlement agreement, she refinanced the marital home and a vehicle and put those loans in her name alone in...