Brogdon v. BrogdonBrogdon v. Brogdon
- Reporters:
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- Before:
- Nahmias
We granted this application for discretionary appeal under Supreme Court Rule 34 (4), by which we grant every “application . . . for leave to appeal a judgment and decree of divorce that is final under
1. Viewed in the light most favorable to the trial court’s rulings, the evidence showed as follows. On November 11, 2000, Joshua E Brogdon (Husband) and Tawnya S. Brogdon (Wife) married. They later had a child. On July 9, 2009, Husband filed for divorce. On August 3, 2010, after a two-day bench trial, the court entered a final judgment and decree of divorce. The divorce decree incorporated by reference an attached Child Support Addendum, which incorporated by reference and attached the statutorily required Child Support Worksheet and Child Support Schedule E — Deviation (Special Circumstances). See
The divorce decree awarded the parties joint legal custody of their five-year-old son, with Wife having primary physical custody. Regarding child support, the trial court rejected Husband’s claims about his sources of
Regarding equitable division, the trial court found that, during the marriage, the parties acquired partial ownership interests in two limited liability real estate holding companies worth $120,000 and $22,500, respectively, and a $50,000 interest in a residential repair partnership. The divorce decree awarded Husband these business interests but ordered him to pay Wife half their value, $96,250, in monthly installments of $2,000. Husband was also required to execute the general security agreement and collateral pledge agreement attached to the decree, along with any other documents necessary to perfect Wife’s security interest in the $96,250 award. The court divided other marital property between the parties.
On May 11, 2011, the trial court entered an order granting in part and denying in part Husband’s motion for reconsiderаtion and modification of the divorce decree. The court also entered an order requiring Husband to pay to Wife’s attorney a total of $20,917.10 in attorney fees and costs in monthly installments of $750. On July 6, 2011, we granted Husband’s application for discretionary appeal of the divorce decree and attorney fees order under our Rule 34 (4).
2. Husband contends that the trial court erred in finding that he had monthly gross income of $12,000. However, the evidence showed that Husband frequently made large cash withdrawals, had recently made large purchases, and used his business account to pay a substantial amount of his personal expenses averaging $12,079.05 per month. The evidence also showed that Husband and his girlfriend attempted to fabricate a false profit and loss statement for his sole proprietorship that substantially understated his actual earnings. Thus, there is evidence supporting the trial court’s finding that Husband had monthly gross income of $12,000. See Alejandro v. Alejandro,
3. Husband claims that the trial court erred in finding that Wife “has no income for purpose of computing child support” and imputing to her monthly gross income of only $1,257. The evidence showed that although Wife was able to work, she had no regular employment, was the primary caretaker of the parties’ young sоn, and occasionally earned $11 per hour for working special events at a restaurant.
Imputed income. When establishing the amount of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parent’s income or income potential, gross income for the current year shall be determined by imputing gross income based on a 40 hour workweek at minimum wage.
The trial court did not abuse its discretion in finding that it had no reliable evidence of Wife’s income and imputing to her monthly gross income of $1,257 based on a 40-hour workweek at the national minimum wage of $7.25 per hour.
4. Husband asserts that the trial court improperly attributed 100% of the “basic child support obligation” to him instead of calculating his pro rata share of the obligation as required by
However, we read the divorce decree as a whole, including the attachments incorporated by reference. The Child Support Worksheet correctly stated that the parties’ “basic child support obligation” was $1,517 based on their monthly combined adjusted income of $13,257 and one child. See
The Child Support Addendum says much the same thing as the main body of the decree without using the term “basic child support obligation”: “Child Support Amount — The Father shall pay to the Mother, for the support of the minor children [sic], the sum of 1,816.00 Dollars ($1,816.00) per month, beginning on June 1, 2010.” Moreover, the Child Support Addendum and the Child Support Worksheet show that the court did prorate Husband’s responsibility for the basic child support obligation before proceeding through the rest of the steps in the statutory calculation to arrive at the order requiring Husband to pay Wife $1,816 monthly for child support.
While “basic child support obligation” is a term of art in the context of the child support guidelines, see
5.
(a) Specific deviation for low income. The divorce decree is clear that Husband was оrdered to pay Wife $1,816 monthly for child support, but it contains some errant statements. For example, the decree states that the court “finds no deviation on the child support schedule,” but the incorporated Child Support Addendum states, “It has been determined that one or more of the Deviations allowed under
The specific deviation for “Low Income” authorized by
(b) Specific deviation for extraordinary educational expenses. The guidelines statute discusses a specific deviation for three categories of “Extraordinary Expenses” — extraordinary educational expenses, special expenses incurred for child rearing, and extraordinary medical expenses. See
In addition, the trial court’s final judgment must state:
(i) The reasons for the deviation from the presumptive amount of child support;
(ii) The amount of child support that would have been required under this Code section if the presumрtive amount of child support had not been rebutted; and
(iii) How, in its determination:
(I) Application of the presumptive amount of child support would be unjust or inappropriate; and
(II) The best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.
Since the revised child support guidelines took effect in July 2008, this Court has repeatedly emphasized the statute’s clear directive that these written findings must be included in the final child support order if a deviation is made. We have described the written findings as “mandatory” and held that, when any of the required findings are omitted, we have no choice but to “reverse the trial court’s judgment and remand th[e] case to the trial court for further proceedings.” Holloway v. Holloway,
We hаve reversed child support orders even when we presumed that the evidence supported the trial court’s actions because there was no transcript of the proceedings, see Spurlock v. Dept. of Human Resources,
Here, the Child Support Addendum contained written findings that “one or more of the Deviations allowed under
In addition, the Child Support Addendum says that the attached Schedule E “explains the reasons for the deviation,” as well as “how the application of the guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support” and “how the best interest of the children who are subject to this child support determination is served by deviation from the presumptive amount of child support.” Such explanations would satisfy
Contrary to the claim made by Wife’s counsel at oral argument, the missing findings also do not appear in the trial court’s order on Husband’s motion for reconsideration and modification of the divorce decree. In that order, the court explained the evidentiary basis for including $500 per month as the cost for private schooling and said that “the Court did receive evidence as to private school tuition and does find it as an appropriate inclusion in the Child Support Addendum.” But the order does not include the other findings required by
Accordingly, the child support order does not comply with the statute and does not provide the findings needed to ensure that the application of the extraordinary educational expenses deviation was appropriate. “[A] lack of mandatory written findings overcomes the presumption of regularity,” and “[e]ven presuming the evidence supported the trial court’s actions, we must first have the required findings of fact for review so that we know that the court considered the correct factors in exercising its discretion.” Spurlock,
(c) No specific deviation for extracurricular expenses. The Child Support Addendum states, “The Father shall pay 100% of extracurricular expenses as he has the final decision making authority in extracurricular activities for the minor child.” Husband claims that this directive entitled him to a specific deviation for “Extraordinary Expenses” under the category of “special expenses incurred for child raising.”
Special expenses incurred for child rearing, including, but not limited to, quantifiable expense variations related to the food, clothing, and hygiene costs of children at different age levels, may be a basis for a deviation from the presumptive amount of child support. Such expenses include, but аre not limited to, summer camp; music or art lessons; travel; school sponsored extracurricular activities, such as band, clubs, and athletics; and other activities intended to enhance the athletic, social, or cultural development of a child but not otherwise required to be used in calculating the presumptive amount of child support as are health insurance premiums and work related child care costs. A portion of the basic child support obligation is intended to cover average amounts of special expenses incurred in the rearing of a child. In order to determine if a deviation for special expenses is warranted, the court or the jury shall consider the full amount of the special expenses as described in this division; and when these special expenses exceed 7 percent of the basic child support obligation, then the additional amount of special expenses shall be considered as a deviation to cover the full amount of the special expenses.
Id.
Husband claims the trial court erred in ordering him to pay for the child’s extracurricular expenses on top of the base amount provided in the basic child support obligation without including a corresponding specific deviation in the calculation of the final child support order. See Turner,
Having urged the trial court to enter this component of the divorce decree, Husband will not be heard to complain about it on appeal, see Finklea v. Finklea,
6. Husband contends that the trial court erred in ordering him to enter into a general security agreement and a collateral pledge agreement to guarantee the payments required by the divorce decree. Husband was awarded the marital estate’s interests in
7. Husband claims that the trial court erred in awarding attorney fees to Wife under
8. In his final enumeration, Husband contends that the trial court abused its discretion by failing to consider his inability to make the monthly installment payments of $2,000 toward the equitable division award. Again, this argument is premised on Husband’s argument, rejected in Division 2, that the court erred in finding that his monthly gross income was $12,000. In any event, the divorce decree awarded Husband his sole proprietorship, stock shares, retirement accounts, two vehicles, and partial ownership interests in two limited liability companies and a residential repair partnership. “[Ujnder Georgia law, a party can be required to sell or encumber property in order to pay equitable division .... [Husband] can sell or encumber his property, or take any other action he deems necessary, to comply with the trial сourt’s order.” Wier v. Wier,
Judgment affirmed in part and reversed in part, and case remanded with direction.
Notes
The child support obligation table includes average child rearing expenditures for families given the parents’ combined adjusted income and number of children. Extraordinary expenses are in excess of average amounts estimated in the child support obligation table and аre highly variable among families. Extraordinary expenses shall he considered on a case-by-case basis in the calculation of support and may form the basis for deviation from the presumptive amount of child support so that the actual amount of the expense is considered in the calculation of the final child support order for only those families actually incurring the expense. Extraordinary expenses shall be prorated between the parents by assigning or deducting credit for actual payments for extraordinary expenses.