This Court granted the application for discretionary review in this case arising out of an action filed by JoBeth Parker, Appellant, a resident of Georgia, against her then-husband, James Timothy Parker, Appellee, a nonresident, to establish child support pursuant to the Uniform Interstate Family Support Act (UIFSA), OCGA § 19-11-100 et seq.
1. The initial question for review is whether this is an alimony case over which this Court has appellate jurisdiction pursuant to Georgia Cоnstitution of 1983, Art. VI, Sec. VI, Par. Ill (6). The parties to this appeal were married at the time of the proceedings below. Divorce proceedings were pending in both Alaska and Florida, but Appellant alleged that neither of those states had jurisdiction to resolve child custody and child support issues given the residency of the parties and the two children of the marriage.
In Spurlock v. Dept. of Human Resources,
we have jurisdiction over a case involving an original claim for child support which arose in either a divorce or alimony proceeding [as well as] actions for modification of alimony... for support of... a child, so long as the original award arose from a divorce or alimony proceeding.
Id. at 513. Thus, the Court concluded we have jurisdiction over proceedings for modification оf a child support award made in a prior divorce or alimony action regardless of the code section under which the modification is pursued. By comparison, in O’Quinn v. O’Quinn,
The case now before the Court involves an original petition for child support that is not made within a divorce proceeding. The parties were, however, at the time the petition was filed, married and not divorced. Consequently, this case is distinguishable from Kennedy v. Kennedy,
2. Appellant asserts the trial court erred in including in its child support calculations certain nonspecific deviations from the statutory presumptive child support amount that would otherwise apply in this case and in failing to consider the effect of boarding school living expenses upon the allocation of child support between the parties for the older child who was enrolled аt boarding school. The record reflects both parties were career commissioned officers in the United States Air Force whose military duties often required them to be geographically separated. At the time Appellant filed this proceeding in 2011, two different divorce proceedings were pending in two other states. Also at the time this proceeding was filed, the parties had enrolled their older, then 16-year-old, daughter in a boarding school in New Jersey and the younger, then seven-year-old, daughter was living with Appellant in Georgia and enrolled in a private day school. Appellee had retired from the military and was a resident of Alaska. The trial court awarded joint legal custody of both children, awarded primary physical custody of the older child to Appellee, in accordance with that child’s stated preference, and awarded primary physical custody of the younger child to Appellant pursuant to a finding that such an arrangement was in the best interest of the child.
As required by OCGA § 19-6-15 (1) for split parenting arrangements, the trial court prepared a child support worksheet for each child but it appears to be undisputed that the worksheets were not provided to the parties or their attоrneys until the day following the hearing on this matter and that the court invited each party to review the worksheets in advance of entry of the final award. Each worksheet reflects that Appellant’s income is 42.22% of the parties’ combined income and that Appellee’s income is 57.78% of the combined income. Tuition, room, and board for the older child’s boarding school was shown on the worksheet to be approximately $44,000 per year (although documentary evidence presented at the hearing reflects that, after credit for a tuition grant, the charges totaled $41,770) and, at the hearing, the judge announced Appellant would be required to pay half, but in any case, no less than $22,000 per year, “toward tuition and living expenses” but no other child support for the older child under the child support guidelines. The judge also announced at
In her first enumeration of error, Appellant asserts the trial court abused its discretion by granting a $1,503.05 nonspecific deviation in favor of Appellee with respect to his child support obligation to the younger child, thus bringing his support obligation to zero, when that deviation does not servе the best interest of that child. The Final Order of Custody and Child Support provides that neither party shall owe child support to the other and incorporates by reference the child support worksheet for each child. OCGA § 19-6-15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet. Deviations from the presumptive amount of child support, as provided by OCGA § 19-6-15 (i), are to be set out in Schedule E of the worksheet. OCGA § 19-6-15 (b) (8). If the factfinder deviates from the presumptive amount of child support, certain specific findings of fact must be set forth in the child support order, including the reasons for the deviation, the amount of
(B) Would the presumptive amount be unjust or inappropriate? Explain. [Answer:] Yes; [Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.
(C) Would deviation serve the best interests of the children for whom support is being determined? Explain. [Answer:] Yes; will result in funds being available for travel and other expenses for both children.
(D) Would deviation seriously impair the ability of the CUSTODIAL parent or NON-PARENT Custodian to maintain minimally adequate housing, food and clothing for the children being supported by the order and to provide other basic necessities? Explain. [Answer:] No; both parents have sufficient funds to provide for basic necessities.
In this case, the child support worksheet was incorporated into the final order and thus the order reflects the statutorily required findings to support the deviation. Compare Walls v. Walls,
This Court has held that qualitative determinations regarding deviation from the presumptive amount of child support
are committed to the discretion of the court or jury. Accordingly, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard, and we review the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.
In this case, the court noted at the hearing the substantial visitation-related travel expenses for eaсh child between Alaska and Georgia, and the order requires each parent to bear that expense for the child not in that parent’s custody. Nevertheless, the child support worksheet for the younger child does not provide a specific deviation for travel expenses as permitted by OCGA § 19-6-15 (b) (8) (F) and (i) (2) (F).
Pursuant to OCGA § 19-6-15 (i) (3), nonspecific deviations are those that “may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.” Relying upon this language, Appellant asserts that use of a nonspecific deviation is appropriate only when no specific deviation authorized by OCGA § 19-6-15 (i) (2) reasonably applies. Pursuant to OCGA § 19-6-15 (c) (1), the presumptive amount of child support provided by the Code section “may be increased or decreased according to the best interest of the child for whom support is being considered ....” Relying upon this language, Appellant asserts the statute does not permit the granting of a deviation on the ground that it benefits and serves the best interest of a child other than the one who is the subject of the child support worksheet, even if that child is the sibling of the one entitled to support. Although separate worksheets are required for each child in
3. Appellant asserts the child support worksheets for both children contained erroneous facts, that the nonspecific deviations were thus erroneous, and that the worksheets, in any event, did not support the final order. The record supports this assertion of error. For example, the child support worksheets prepared by the court reflect, as noted above, overstatement of the private school tuition costs for each child.
It is apparent from the hearing transcript that the trial court in this case attempted to аccommodate the parties’ already established practice of devoting a significantly greater portion of the parents’ combined resources to pay for the education of the older child while also providing the younger child with private school education. The court went too far, however, in arriving at an expressed intent to award a zero dollar child support obligation and then fashioning the numbers to achieve that result. The guidelines set forth in OCGA § 19-6-15 provide a detailed scheme for determining the amount of child support to be awarded by the court, and compliance with the stаtute’s terms is mandatory. See Stowell v. Huguenard,
Evеn though qualitative determinations of whether special circumstances exist to support deviations from the presumptive amount of child support are committed to the discretion of the court or jury
In a separate enumeration of error Appellant asserts the court erred in failing to take into consideration the effect of the tuition discounts in its grant of deviations for extraordinary educational expenses, as required by OCGA § 19-6-15 (i) (2) (J) (i) (I), and also erred in its order that Appellant pay half, but no less than $22,000, of these tuition expenses for the older child. Remand of the case for correction of factual inaccuracies in the child support wоrksheets serves to address this enumeration of error.
4. Appellant asserts the trial court erred in failing to consider what she refers to as the “windfall” benefit to Appellee by requiring Appellant to pay half of the total costs of the older child’s education expenses, including boarding expenses, thus relieving Appellee of a portion of the cost of that child’s support. The order requires Appellant to pay no less than $22,000 annually for the older child’s private school tuition. It also requires Appellee to pay an amount equal to half of the younger child’s private day school tuition. Otherwisе, the order states that “[n] either party shall pay child support to the other.” Nevertheless, the transcript of the hearing reflects the court acknowledged and intended the $22,000 payment to include living expenses. Private school or college boarding expenses include costs, such as food and lodging, which are by definition part of general child support. See Taylor v. Taylor,
One of the justifications and findings in support of granting the nonspecific deviation in favor of Appellee for the younger child was the finding that the presumptive amount (which would result in Appellee paying over $400 monthly in child support to Appellant) would be unjust or inappropriate because “[Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.” Thе corresponding finding in support of granting a nonspecific deviation in favor of Appellant for the older child was the finding that the presumptive amount would be unjust or inappropriate because “[Appellant non-custodial parent] is paying tuition for younger child.” Of course, Appellant is also paying expenses in addition to tuition for the younger child, since the final order eliminated Appellee’s child support obligations to that child except for half of tuition (even though that amount was not reflected in the child support worksheet), but that factor was not noted in the findings. In addition, though not noted on the child support worksheet, Appellant is paying for a portion of the older child’s general support since she is paying half her boarding fees. The issue of whether the final award, in effect, improperly fails to consider the benefit that accrues to Appellee as a result of requiring Appellant to pay what amounts to child support for that portion of the older child’s general support incurred during the months she lives at boarding school further illustrates the deficiencies in the child support worksheets that the court prepared in this case. As noted, the facts appear to have been fashioned in a manner to arrive at an order that appears to have been predetermined by the trial court. Appellant complains that this results in the parent earning just over 42% of the parties’ combined income is required to bear over 58% of the total child support expenses for the two children. We do not hold that such an
Moreover, the deviations must be in the best interest of the child. Appellant shows that the younger child in this case is adversely impacted by the trial court’s decision not to require Appellee to contribute to that child’s support beyond paying half her tuition, whereas Appellant is effectively paying for half of the older child’s general support, in addition to half of her tuition, during the school year, thus leaving Appellant with fewer resources to support the younger child. That consideration is not reflected in either child support worksheet. The benefit that accrues to Appellee for this contribution to the older child’s general support is also not reflected in the worksheets. At the hearing, the trial court noted that these parents have elected to spend a greater portion of their combined resources on the higher education of the older child. This election, however, does not appear to justify the judge’s apparently predetermined decision to relieve Appellee of any duty to support the younger child beyond paying half of her tuition. The cumulative effect of these material inaccuracies and inconsistencies requires us to find the court abused its discretion in arriving at the final order of child support in this case. Upon remand, the trial court is directed to apply accurate facts and figures to the case so the calculations of the child support worksheets are accurate and any deviations granted are properly supported by findings based upon these facts.
5. Finally, the court erred by finding in its final order that “the parties have agreed and determined that deviations from [the presumptive child support amounts reflected on the child support worksheets] are appropriate as shown on the Worksheets.” The transcript and record reflect that the parties did not submit child support worksheets that had been jointly agreed upon, that the court prepared the worksheets that were incorporated into the final order, and that once those had been provided to the parties subsequent to the hearing at which the court announced its ruling, Appellаnt objected' to the worksheets and the proposed order. Prior to the entry of the final order, Appellant filed a motion for reconsideration to which she attached proposed alternative worksheets for each child. Although the motion was denied, its filing shows that the parties did not agree
Judgment affirmed in part and reversed in part, and case remаnded with direction.
Notes
Appellant initially filed her petition in the Superior Court of Houston County under the Uniform Child Custody Jurisdiction and Enforcement Act and, after the trial court ruled it had jurisdiction, she amended her petition asking the trial court also to enter a child support order under UIFSA.
As more fully set forth below, the younger child lived with Appellant/Mother in Georgia. The older child lived with Appellee/Father in Alaska.
The petition in O’Quinn was brought under the Uniform Reciprocal Enforcement of Support Act, which was replaced, with respect to proceedings filed on or after January 1,1998, by the Uniform Interstate Family Support Act (Georgia Code Title 19, Ch. 11, Art. 3). See OCGA§ 19-11-40.1.
Neither does the worksheet for the older child.
Appellee acknowledges the final order should be amended to correct this factual error.