372 Ga. App. 153
Ga. Ct. App.2024Background
- Faith M. Calvert (mother) appealed a trial court order modifying custody and child support for her three children with Jerome L. Calvert (father).
- The original divorce decree granted the mother primary custody of the oldest child, with two younger children born after the parties reconciled post-divorce but never remarried.
- After a second separation, the father petitioned for legitimation, joint custody, and primary physical custody of the oldest child, while the mother counterclaimed for primary physical custody of all three.
- A guardian ad litem was appointed, recommending the father receive primary physical custody of all three children based on stability and educational concerns.
- The trial court ultimately granted the father primary physical custody, credited him for health insurance paid by his wife, and structured the payment of father's arrears and attorney fees. The mother appealed on these points.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Father’s custody request for two youngest children | Was not pleaded, so should not be considered | Guardian ad litem’s appointment/notice put custody at issue | No error; mother had sufficient notice |
| Health insurance credit for father | Credit improper as policy paid by father's wife, not father | Insurance available at reasonable cost through wife’s employer | Credit allowed; cost reasonable, policy appropriate |
| Health insurance credit denied to mother | Her payments were not credited | Coverage by father’s wife's policy was less expensive | Court did not err; lower premium justified selecting father |
| Payment schedule for arrears | Child support arrears made improperly contingent on fee payment | Payment structure accommodated finances, did not forgive/reduce arrears | No legal error in structuring payment schedule |
Key Cases Cited
- Taylor v. Taylor, 293 Ga. 615 (deference to trial court’s discretion in custody decisions)
- Mitcham v. Spry, 300 Ga. App. 386 (affirming custody where record supports decision)
- Sedehi v. Chamberlin, 344 Ga. App. 512 (relief not pleaded requires sufficient notice)
- Hackbart v. Hackbart, 272 Ga. 26 (absent party cannot be granted unpleaded relief)
- Daggy v. Daggy, 366 Ga. App. 320 (notice required for relief outside pleadings)
- Strunk v. Strunk, 294 Ga. 280 (trial court may determine timing of payment of arrears)
- Deese v. Deese, 230 Ga. 105 (likewise re: structuring arrears payments)