BLUMENSHINE v. HALL
A14A1328
Court of Appeals of Georgia
DECIDED OCTOBER 30, 2014
765 SE2d 647
ANDREWS, Presiding Judge.
Joshua F. Blumenshine appeals from the order of the Oglethorpe County Superior Court modifying custody of his minor children and determining child support obligations under
Joshua and Michelle Blumenshine divorced in Wyoming in 2008 with thrеe minor children the issue of their marriage - twins born on August 17, 2001 and a third child born on March 22, 2004. The Wyoming divorce decree awarded the parties joint legal custody of the children and awarded the mother physical custody subject to the father‘s visitation rights. The mother relocated from Wyoming to Oglethorpe County, Georgia, and both parties subsequently married new spouses. The mother‘s current married name is Michelle Leigh Hall. In April 2011, the Oglethorpe County Superior Court issued an order on Blumenshine‘s petition to modify the Wyoming decree and on Hall‘s counterclaim. At the timе, evidence showed that Blumenshine was scheduled to live with his new wife (a member of the United States Air Force) at a military base in Germany, and Hall was scheduled to live with her new husband (a member of the United States Army) at a military base in the state of Washington. Considering the circumstances, the Cоurt‘s April 2011 modification order awarded Blumenshine and Hall joint physical and legal custody of the three children and gave each parent primary physical custody of the children for alternating years. While the children were in Blumenshine‘s primary custody for the first year (June 2011 to June 2012) рursuant to the April 2011 modification order, Blumenshine filed another petition for modification of custody in December 2011 in the Oglethorpe County Superior Court seeking sole custody of the children on grounds that changed circumstances showed Hall was not fit to have the children returnеd to her primary custody for the next school year under the April 2011 order. Hall answered and counterclaimed alleging changed circumstances showing that she was entitled to modification of custody awarding her physical custody of the children. The December 2011 modification action and counterclaim was tried before the Superior Court, which issued a final order in November 2013 giving Hall and Blumenshine joint legal custody of
Blumenshine appeals from the Superior Court‘s November 2013 order. For the following reasons, we affirm the child custody determination and the ruling on dependency exеmptions, reverse the child support determination, vacate the attorney fee award, and remand the case to the trial court for reconsideration of child support and attorney fees in accordance with this opinion.
1. Blumenshine contends that the Supеrior Court erred by changing custody and awarding physical custody of the three children to Hall.
A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last сustody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. . . . The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive еffect on the child‘s welfare as well as changes which adversely affect the child.
Viskup v. Viskup, 291 Ga. 103, 105 (727 SE2d 97) (2012) (citations omitted). “A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child‘s best interest.” Id. A court‘s determination that there has been a material change in condition supporting a modification of custody will be affirmed on appeal absent abuse of discretion, and “[w]here there is any evidence to support the trial court‘s ruling, a reviewing court cannot say there was an abuse оf discretion.” Vines v. Vines, 292 Ga. 550, 552 (739 SE2d 374) (2013).
There was evidence to support the Superior Court‘s determination that, while the children were in Blumenshine‘s primary custody, he denied Hall the opportunity to have contact with the children on more than one occasion in violation of the Court‘s prior custody award, and that he took actions attempting to alienate the children from Hall. Because there was evidence to support the Court‘s order modifying custody between fit parents, the order awarding physical custody to Hall was not an abuse of discretion.
Blumenshine contends that, because the 2008 Wyoming divorce decree awarded him the income tax dependency exemption for one оf the children, the Superior Court in this case was bound by the Wyoming decree. Blumenshine does not contest the jurisdiction of the Oglethorpe County Superior Court in this case under the Uniform Child Custody Jurisdiction and Enforcement Act (
3. Blumenshine contends that the Superior Court erred by considering his new wife‘s income in calculating his shared child support obligation under
The provisions of
Blumenshine contends that the Superior Court erroneously included a portion of his new wife‘s income as a captain in the United States Air Force to calculate his child support obligation under
Hall points out that, despite the fact that the Court found Blumenshine had wages and salary amounting to a monthly gross income of $4,000, the order also found that Blumenshine had a “gross monthly income earning capability” of $4,000 “based on education, earning ability, evidence at trial, and financial circumstances and lifestyle of the Father in addition to the Father‘s income, resources which are used to decrease living expenses, military benefits аnd other considerations based on the evidence at trial and further explained [in] the [attached] child support worksheet and addendum.”
In certain circumstances, earning capacity rather than gross income may be used to determine child support, and while a party‘s past income is some evidence of earning capacity, it alone is not conclusive, but must be considered along with other relevant circumstances. Duncan v. Duncan, 262 Ga. 872, 873 (1) (426 SE2d 857) (1993). Many other factors need to be examined in order to determine earning capacity, including a pаrty‘s level of education and any specialized training or skill; whether there is any evidence of the suppression of income; the presence of assets and liabilities; and the existence of other funds available to the party from which the award may be paid. Banciu v. Banciu, 282 Ga. 616, 618 (1) (652 SE2d 552) (2007). In ordеr to sustain an award of child support premised upon earning capacity, there must
be evidence that the parent then has the ability to earn an amount sufficient to pay the award of support; otherwise, the award cannot stand.
Herrin v. Herrin, 287 Ga. 427, 428-429 (696 SE2d 626) (2010). Even if the Court determined child supрort on the basis that Blumenshine had the capacity to earn a monthly gross income of $4,000, it is apparent from the Court‘s order that its determination was based in part on an erroneous consideration of the income of Blumenshine‘s new wife.
Because evidence showed that Blumenshine‘s income from military disability payments and other sources was substantially less than the monthly gross income of $4,000 calculated by the Court, and the Court erroneously considered his new wife‘s income in calculating child support obligations, we reverse the Court‘s ruling with respect tо its determination of child support, and remand the case for reconsideration of this issue in accordance with the evidence and this opinion. Franklin v. Franklin, 294 Ga. 204, 205-207 (751 SE2d 411) (2013).
4. Blumenshine contends that the Superior Court erred by requiring him to pay for a portion of the cost of the children‘s extracurriсular activities such as “sports, music, camps, summer activities, after school programs, art classes, theater and plays” in addition to the presumptive amount of child support. He contends that, because the Court failed to make the necessary findings to determine that a deviation from the presumptive amount of child support should apply for payment of these extraordinary expenses, this constituted an unauthorized separate child support award outside the parameters of his statutory support obligation.
5. Blumenshine contends that the Superior Court erred by awarding attorney fees to Hall without evidence sufficiеnt to support the award.
When there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record dоes not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.
Id. at 106. Although Hall testified as to the amount of attorney fees she had incurred, there was no evidence suffiсient to prove that those fees were reasonable.
When a party seeking attorney fees has failed to present an essential element of proof, but the trial court nevertheless awarded attorney fees, we have consistently reversed or vacаted that portion of the judgment awarding the attorney fees and remanded the case to the trial court to hold an evidentiary hearing to allow the party, if possible, to cure the matter.
Driver v. Sene, 327 Ga. App. 275, 279-280 (758 SE2d 613) (2014).2 Accordingly, we vacate the award of attorney fees and remand the case for the Court to reconsider this issue in accordance with this opinion, to state the statutory basis for any award and any necessary findings to support it, and to conduct an evidentiary hearing on the attorney fee issue. Id. at 280.
Judgment affirmed in part, reversed in part and vacatеd in part, and case remanded. McFadden and Ray, JJ., concur.