Winchell v. Winchell

• Decision Date: 16 October 2019
• Docket Number: A19A1531, A19A2119
• Citation: 835 S.E.2d 6,352 Ga.App. 306
• Parties: WINCHELL v. WINCHELL (two cases).
• Court: Georgia Court of Appeals

352 Ga.App. 306

835 S.E.2d 6

WINCHELL

v.WINCHELL (two cases).

A19A1531, A19A2119

Court of Appeals of Georgia.

October 16, 2019

Warner Bates McGough McGinnis & Portnoy, Nancy I. Jordan, for appellant.

Johnson Kraeuter, K. Paul Johnson, for appellee.

McMillian, Judge.

Following a divorce between Mark Winchell ("Father") and Natalie Winchell ("Mother"), the Father appeals the child support order and award of attorney fees in Case No. A19A1531.¹ After the trial court ordered him to post an appeal bond, the Father also appealed that order in Case No. A19A2119. For the reasons that follow, we affirm in Case No. A19A1531 and dismiss as moot the appeal in Case No. A19A2119.

The Father and the Mother married on November 3, 2013, and they had a child in 2015. In 2016, the parties separated and the Mother filed for divorce. Following a three-day bench trial, a Final Judgment and Decree of Divorce was entered on December 15, 2017.² The Final Judgment included a Child Support Addendum and attached Child Support Worksheet, which under OCGA § 19-6-15,³ calculated the Mother’s income as $3,394.77 per month and the Father’s income as $28,197 per month. The Final Judgment ordered the Father to pay $1,973 per month in child support. Although the Child Support Addendum stated that none of the deviations from the presumptive child support amount as set out in OCGA § 19-6-15 applied in this case, the trial court ordered under a section entitled "Additional Provisions":

(A) The Father shall be responsible for all costs associated with the child’s full time attendance at The Sanctuary Child Learning Center.

(B) The Father shall be responsible for all expenses incurred by the child to obtain a private[ ] school education from first through twelfth grade. The costs he shall be responsible for include tuition, books, matriculation fees, and other incidental expenses billed by the school. His liability under this paragraph shall not exceed the cost required for a day student to attend Savannah Christian Preparatory School in Savannah, Georgia.

Prior to the entry of judgment, the Father, through counsel, and in his testimony objected generally to the payment of private school expenses. Regarding the Sanctuary Learning Center expenses, the Father agreed he would continue paying for the child to go to the daycare center, but requested a "nominal parenting time deviation to get the child support figure to fifteen hundred" to account for paying the costs. After entry of Final Judgment, both parties filed timely motions for reconsideration, and the Mother filed a request for attorney fees under OCGA § 19-6-2.⁴ The trial court never ruled on the parties’ motions for reconsideration, but a hearing was held on the attorney fees request, and the trial court subsequently awarded the Mother $38,971 in fees under OCGA § 19-6-2.

The Father filed an application for discretionary appeal to this Court, arguing that the trial court erred by failing to include his obligation to pay daycare expenses and private school tuition in the child support worksheet and by failing to make the findings required under OCGA § 19-6-15 (c) (2) (E) to determine that a deviation from the presumptive amount of child support should apply, and that the trial court erred by failing to sufficiently consider the financial circumstances of the parties in awarding the Mother attorney fees under OCGA § 19-6-2. After we granted the Father’s application, he filed a timely notice of appeal and his appeal was docketed in this Court as Case No. A19A1531.

The Mother then filed a motion to set an appeal bond in the trial court, which the trial court granted, ordering the Father to deposit $97,809 in the registry of the court. The Father filed a notice of appeal from the trial court’s order, and that appeal was docketed in this Court as Case No. A19A2119. We consolidated these appeals for our review.

Case No. A19A1531.

1. We first address the Mother’s contention that the Father waived his right to appeal any issues related to calculation of child support and the failure to make required written findings under OCGA § 19-6-15. In McCarthy v. Ashment-McCarthy , 295 Ga. 231, 758 S.E.2d 306 (2014), our Supreme Court considered whether the trial court’s failure to comply with the requirement to make written findings under OCGA § 19-6-15 can be waived by failing to first raise the issue of compliance in the trial court. The Court answered that question in the affirmative, noting that the appellant in McCarthy had filed two post-judgment motions in which the issue of compliance could have been raised – a motion for new trial and a motion for reconsideration from the trial court’s denial of his motion for new trial. Id. at 233 (2), 758 S.E.2d 306.⁵ In so holding, the Supreme Court specifically disapproved of several of its previous cases to the extent those cases could be read for the proposition that the issue of a trial court’s compliance with OCGA § 19-6-15 is never subject to waiver.⁶ Further, the Court "contrasted" its finding of waiver with previous cases in which the trial court’s noncompliance with OCGA § 19-6-15 had been brought to the trial court’s attention in a proper motion prior to filing the notice of appeal, citing Holloway v. Holloway , 288 Ga. 147, 148-49 (1), 702 S.E.2d 132 (2010) (failure to make factual findings raised in motion for new trial); Brogdon v. Brogdon , 290 Ga. 618, 624-25 (5) (b), 723 S.E.2d 421 (2012) (issue of compliance raised in motion for reconsideration/modification); and Demmons v. Wilson-Demmons , 293 Ga. 349, 349, 745 S.E.2d 645 (2013) (motion to amend/make additional findings/partial motion for new trial). McCarthy , 295 Ga. at 233 (2), 758 S.E.2d 306.

We note that several months after McCarthy was decided, our Supreme Court refused to find waiver in Wallace v. Wallace , 296 Ga. 307, 766 S.E.2d 452 (2014), stating that "unlike the appellant in McCarthy , [the appellant in Wallace ] did not file in the trial court a motion for new trial that did not raise the trial court’s failure to comply with the findings requirement, and then attempt to raise the issue for this first time [on appeal]." Id. at 310 (1), n.2, 766 S.E.2d 452. However, about a year later, the Supreme Court followed McCarthy and found appellant had waived appellate review of the issue of compliance with OCGA § 19-6-15 by failing to raise it in her motion for new trial/motion for reconsideration or at the hearing on the motion. McLendon v. McLendon , 297 Ga. 779, 780 (2), 778 S.E.2d 213 (2015).

Thus, reading these cases together, it appears that when the appellant has chosen to file a motion in the trial court in which the issue of compliance with the factfinding requirements of OCGA § 19-6-15 could properly have been raised and brought to the trial court’s attention and fails to do so, that issue is waived on appeal. But the issue of compliance may be properly raised on appeal for the first time if the appellant chooses not to file a post-judgment motion in the trial court or files a motion in which the issue could not properly be raised, such as a motion to set aside. See also OCGA § 5-6-36 (a) ("A motion for new trial need not be filed as a condition precedent to appeal or consideration of any judgment, ruling, or order in any case; but, in all cases where a motion for new trial is an available remedy, the party entitled thereto may elect to file the motion first or to appeal directly.").

The question then is whether the issue of compliance was waived under the facts of this case. Although at one point the Father’s attorney purported to file a motion for new trial and attached a copy of the motion to correspondence with the Mother’s attorney, prompting the Mother to file a response to the motion, the Father never actually filed the motion in the trial court.⁷ However, the Father subsequently filed a "consolidated" motion for reconsideration, but did not raise the issue of compliance with OCGA § 19-6-15, and the trial court never ruled on the motion. As our Supreme Court recognized in McCarthy ,⁸ a motion for reconsideration is a proper means by which to raise the trial court’s failure to make the findings required by OCGA § 19-6-15. Because the Father has waived appellate review of the issue of the trial court’s compliance with OCGA § 19-6-15 by raising this failure for the first time on appeal instead of in his post-trial motion filed in the trial court, we will not address the issue of whether the trial court complied with OCGA § 19-6-15 in ordering the Father to pay the child’s private school tuition and the Sanctuary Learning Center expenses.

2. The Father also challenges the trial court’s award of attorney fees to the Mother under OCGA § 19-6-2, arguing that the trial court improperly relied on outdated financial information and failed to make sufficient factual findings to support the award.⁹

"Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract." (Citation and punctuation omitted.) Ward v. Ward , 289 Ga. 250, 251 (2), 710 S.E.2d 555 (2011). Here, the attorney fees were requested only under OCGA § 19-6-2, and the trial court’s order clearly reflected that the award was pursuant to that statute. " OCGA § 19-6-2 authorizes a trial court in a divorce action to exercise its sound discretion and, after considering the financial circumstances of the parties, to award attorney fees as necessary to ensure the effective representation of both parties." (Citation and punctuation omitted.) Ward , 289 Ga. at 251 (2), 710 S.E.2d 555.

The Father complains, however, that the trial court improperly considered only the disparity in the parties’ income, which the trial court noted was "substantial," and did not take into account the parties’ overall financial circumstances, as is required when making an award under OCGA § 19-6-2.

OCGA § 19-6-2 (a) (1) requires a trial court to consider the parties’ ‘‘financial circumstances’’ when awarding attorney

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