346 Ga. App. 58
Ga. Ct. App.2018Background
- Thaddeus L. Moore (father) and Heather C. Moore (mother) divorced in 2009; settlement incorporated into the decree gave joint legal custody, mother primary physical custody, and father visitation and child support ($400 monthly by agreement, lower than guideline amount).
- In July 2016 mother petitioned to modify custody and child support, seeking primary legal and physical custody and guideline child support.
- At the petition hearing the 14-year-old child expressed a desire to live with mother and to control visits with father; father agreed the child could choose when to visit.
- Trial court awarded mother sole legal and physical custody, left visitation to the child’s discretion, and modified child support (ordered higher monthly amounts and 35% of annual bonuses above $3,500).
- Father appealed, arguing (1) legal custody was not pleaded or tried by consent, (2) no parenting plan was incorporated, (3) child support was modified without required threshold findings, (4) child support worksheets were not attached/incorporated, and (5) ordering a percentage of future bonuses was an improper future modification/deviation.
- Court of Appeals: affirmed in part, vacated in part, and remanded with direction (vacated child support award and parenting-plan omission; upheld legal custody award and waiver of threshold objection to support modification).
Issues
| Issue | Moore (Appellant) Argument | Moore (Appellee) Argument | Held |
|---|---|---|---|
| Whether awarding sole legal custody was improper because it was not pleaded or tried by consent | Trial court erred; legal custody not raised in pleadings or tried by consent, so he lacked opportunity to present evidence | Petition requested "primary legal and primary physical custody"; father understood custody was at issue and had opportunity to defend | Affirmed — legal custody was before the court; father had notice and opportunity to litigate |
| Whether final order must incorporate a parenting plan | Trial court erred by failing to include the statutory parenting plan details | Mother sought sole custody; court awarded sole custody but did not include parenting plan | Vacated in part and remanded — parenting plan required under OCGA § 19-9-1 and must be included in the final order |
| Whether child support could be modified without findings of substantial change | Modification invalid absent threshold finding of substantial change in income or child’s needs | Mother sought guideline child support, and father’s counsel consented to modification at hearing | Affirmed as to waiver — father consented to modification and thus waived objection to threshold requirement |
| Whether child support worksheets and schedules must be attached/incorporated | Trial court erred by not attaching/incorporating worksheets and Schedule E, preventing review and showing required findings for deviations | Court referenced worksheets but did not attach or incorporate them into the order | Vacated and remanded — worksheets/Schedule E must be attached or findings included in the order per OCGA § 19-6-15 |
| Whether ordering father to pay a percentage of future bonuses was a proper deviation/future modification | Ordering percentage of future bonuses is an improper speculative future modification and deviation unless treated on Schedule E with findings | Trial court implemented a bonus percentage but did not include findings or show how income was treated | Remand required — premature to decide due to missing worksheets and findings; if treated as deviation it must be on Schedule E with supporting findings (per Stowell) |
Key Cases Cited
- Autrey v. Autrey, 288 Ga. 283 (broad trial-court discretion in custody decisions)
- Williams v. Williams, 301 Ga. 218 (parenting-plan requirements and necessary details)
- Wetherington v. Wetherington, 291 Ga. 722 (change in circumstances is threshold for support modification)
- Wingard v. Paris, 270 Ga. 439 (same principle on modification threshold)
- Mullins-Leholm v. Evans, 322 Ga. App. 869 (waiver of objections by consenting to relief at trial)
- Black v. Ferlingere, 333 Ga. App. 789 (worksheets and Schedule E must be attached or findings included)
- Demmons v. Wilson-Demmons, 293 Ga. 349 (remand required where required findings/worksheets are absent)
- Wallace v. Wallace, 296 Ga. 307 (reversal/remand when court fails to make statutory findings)
- Stowell v. Huguenard, 288 Ga. 628 (percentage of nonrecurring income must be treated as a deviation on Schedule E with required findings)
- Howard v. Howard, 262 Ga. 144 (finder of fact may not base modification on speculative future circumstances)