This application for discretionary appeal of the parties’ final judgment and decree of divorce was granted under Supreme Court Rule 34 (4). As explained below, we affirm most of the trial court’s judgment. However, the divorce decree includes a deviation from the statutory child support guidelines without the written findings that are statutorily required to support the deviation. We therefore must reverse that part of the judgment and remand the case for a redetermination of child support.
1. Pamela Walls (Wife) and Todd Walls (Husband) were married in 1997 and have two children. On May 14, 2009, Husband filed a complaint for divorce, alleging that the marriage was irretrievably broken and that the parties should have joint legal and physical custody of the children. Wife answered, seeking primary physical and legal custody of the children, with Husband having liberal visitation. She also sought child support. Husband later amended his complaint, adding as a ground for divorce that Wife had engaged in adulterous conduct.
On March 4,2011, after a bench trial, the trial court issued a final divorce decree. The court granted the divorce on the grounds of both Wife’s uncondoned adultery and that the marriage was irretrievably broken. The decree ordered that the parties share joint legal custody of the children, awarded Husband primary custody, and granted Wife liberal visitation rights. The divorce decree incorporated by reference a child support worksheet, including Schedule E for deviations. See OCGA § 19-6-15 (c) (4) (“The child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment----”). Based on the worksheet and Schedule E, the trial court found that Wife’s presumptive amount of child support was $640.96 per month, but that a downward deviation of $83.20 was warranted for extraordinary medical expenses. See OCGA § 19-6-15 (i) (2) (J) (iii). The court therefore ordered Wife to pay monthly child support of $558.
2. Wife argues that the trial court erred in granting the divorce on the ground of adultery, because the evidence at trial showed that Husband voluntarily condoned her adultery. See OCGA § 19-5-4
3. At the bench trial, Husband called his sister, Debra Hale, as an expert witness in custody evaluation. Hale is an attorney who had practiced family law for 19 years and frequently had served as a guardian ad litem for children. The trial court ruled that she could testify as an expert but could not give her opinion as to the ultimate issue of which parent should be granted primary physical custody of the children.
Wife contends that Hale should not have been allowed to testify as an expert on child custody issues because she was biased in favor of her brother and because her testimony was not necessary to help the trial court reach a determination regarding custody. However, alleged bias on the part of an expert witness does not render the witness incompetent to testify, but instead goes to her credibility. See OCGA § 24-9-1 (a) (providing that “[n]o person offered as a witness shall be excluded [from testifying] by reason of . . . interest”);
Moreover, trial courts have broad discretion in deciding whether to admit or exclude expert testimony, considering factors such as whether the witness’s specialized knowledge will be helpful to the trier of fact, and such rulings are reviewed on appeal only for abuse of discretion. See OCGA § 24-9-67.1 (b) (providing that an expert witness may testify if certain reliability factors are satisfied and if the testimony “will assist the trier of fact... to understand the evidence or to determine a fact in issue”);
Wife also contends that the trial court (1) should have precluded Hale from testifying because she had previously represented her brother in another divorce case; (2) erred in permitting Hale to testify as to the ultimate issue;
4. Wife claims that the trial court erred when it awarded Husband primary physical custody, because he only prayed for “joint legal and physical custody” in his complaint. However, Georgia law gives the trial court significant discretion to make determinations regarding child custody in divorce cases and requires the court, in exercising that discretion, “to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness.” OCGA § 19-9-3 (a) (2). See Todd v. Todd,
In addition, although Husband pled only for joint custody, his counsel told the court at the start of the trial that the parties “agreed that there would be joint legal custody, but the issue will be . . . who gets primary physical custody and final decision-making authority.” Wife did not dispute that those were the issues to be tried, and review of the record shows that those issues were in fact the focus of the trial. Husband’s pleadings therefore were deemed amended to conform to the evidence. See OCGA § 9-11-15 (b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Howington v. Howington,
Accordingly, the trial court did not err in deciding whether Husband was entitled to primary physical custody of the parties’ children.
5. Wife argues that the trial court erred in calculating child support by failing to consider whether to make a parenting time deviation. See OCGA § 19-6-15 (i) (2) (K). However, if a trial court decides not to apply a deviation from the presumptive amount of child support, its “ ‘order need not explain how the court. . . reached that decision.’ ” Rumley-Miawama v. Miawama,
6. Wife contends that the trial court erred in deviating from the presumptive amount of child support calculated under the child support guidelines without including any findings stating why the deviation was appropriate. As Husband concedes, Wife is correct on this point.
*761 Where a deviation is determined to apply and a factfinder deviates from the presumptive amount of child support, the order must explain the reasons for the deviations, provide the amount of child support that would have been required if no deviation had been applied, and state how application of the presumptive amount of child support would be unjust or inappropriate and how the best interest of the children for whom support is being determined will be served by the deviation. OCGA § 19-6-15 (c) (2) (E) and (i) (1) (B). In addition, the order must include a finding that states how the court’s or jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support. OCGA § 19-6-15 (c) (2) (E) (iii).
Holloway v. Holloway,
These express findings in the trial court’s order are “mandatory to ensure that the best interests of the children [are] protected,” id., and “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.’ ” Brogdon v. Brogdon,
The trial court here ordered an $83.20 deviation from the presumptive amount of child support for extraordinary medical expenses. See OCGA § 19-6-15 (i) (2) (J) (iii). The divorce decree states that
Schedule E of the Child Support Worksheet, docketed separately but simultaneously herewith, explains the reasons for the deviation, 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*762 the children who are subject to this child support determination is served by deviation from the presumptive amount of child support.
However, the spaces on Schedule E for those findings to be made are blank, and the required findings do not appear anywhere else in the court’s order or incorporated attachments. We therefore must reverse this part of the trial court’s judgment and remand the case for redetermination of child support, with any deviations supported by appropriate written findings.
Judgment affirmed in part and reversed in part, and case remanded with direction.
Notes
OCGA § 24-6-601 of Georgia’s new Evidence Code, which takes effect on January 1,2013, says that “[e]xcept as otherwise provided in this chapter, every person is competent to be a witness,” and no other provision of Chapter 6 of the new Code precludes a witness from testifying on account of bias.
With one non-substantive change, this provision is carried forward in the new Evidence Code. See OCGA § 24-6-622 (effective Jan. 1, 2013).
With minor changes, this provision is carried forward in the new Evidence Code. See OCGA § 24-7-702 (b) (effective Jan. 1, 2013).
Regarding opinion testimony on an “ultimate issue,” OCGA § 24-7-704 of the new Evidence Code provides:
(a) Except as provided in subsection (b) of this Code section, testimony in the form of an opinion or inference otherwise admissible shall not he objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
We note that the trial court divided final decision-making authority between the parties, giving Wife final authority “on major medical and educational issues” and Husband final authority “on religious issues and choice of extra-curricular activities.”