Bowman v. Rouse

364 Ga.App. 119

874 S.E.2d 155

BOWMAN

v.ROUSE.

A22A0380

Court of Appeals of Georgia.

June 6, 2022

Jacquelyn F. Luther, for Appellant.

BRE Law, Barbara Renee Evans, Duluth, for Appellee.

Mercier, Judge.

In this action regarding her minor daughter, Alisha Bowman ("Mother") contends that the trial court committed numerous errors in its decisions to modify the child support obligations and parenting time schedule of Jamiel Rouse ("Father"). Specifically, Mother maintains that the trial court erred by: (1) modifying Father's parenting time despite the fact that he had not fully utilized the time he had been granted in a previous parenting plan; (2) modifying Father's ongoing child support obligations and calculating past-due amounts pursuant to OCGA § 19-6-15 (j) (1) to reflect Father's loss of income; (3) denying Mother's motion to hold Father in contempt for failing to pay past-due child support at its full original rate; and (4) rejecting Mother's argument that, for purposes of determining prospective child support, income should be imputed to Father because he voluntarily remained unemployed. For the reasons set forth below, we affirm the trial court's rulings regarding the modification of Father's parenting time, the denial of Mother's contempt motion, and the denial of Mother's request to impute income to Father to determine prospective child support obligations. We also find that, although the trial court properly found OCGA § 19-6-15 (j) (1) to be applicable in this case, the trial court employed that statute incorrectly in its calculation of arrearages owed by Father. As such, we must vacate the trial court's award as it pertains to child support arrearages and remand this case for further proceedings necessary for recalculation of these past-due amounts.

As relevant background information, the record shows that, in 2018, Father was determined to be the legal parent of the couple's child based on related legitimation and paternity petitions filed by the parties. The legitimation/paternity order included both a parenting plan and child support provisions, the latter of which was premised on Father's employment at the time. Under this 2018 parenting plan, the parties share joint legal custody, but Mother has primary physical custody and final decision-making authority for most circumstances. With regard to child support, Father was required to pay $1,191 per month, based on a monthly salary at the time of $7,692.

In May 2020, Father was furloughed from his job, and he immediately filed a request for a downward modification of child support to reflect his loss of income. In addition, Father requested a modification of parenting time.¹ Mother was served with the modification action on August 11, 2020. Mother then filed an answer and counterclaim which included dueling requests for modification of child support and modification of parenting time. Mother also moved the trial court to find Father in contempt for his failure to pay his child support obligations at their full rate since the time of his furlough in May 2020. Both parties requested attorney fees.² By the time the matter reached the trial court for consideration, Father had been involuntarily terminated from his job.

Following a hearing at which both parties testified, the trial court entered a written order in which it: (1) modified Father's parenting time to address his commuting difficulties to Mother's home and misunderstandings about his daughter's schedule for summer school; (2) modified Father's prospective child support obligations and calculated arrearages to recognize and reflect his job loss and reduction in income; (3) denied Mother's motion for contempt; and (4) denied the requests for attorney fees filed by both parties. This appeal initiated by Mother followed.

1. Mother first contends that the trial court erred by modifying Father's parenting time, arguing that the trial court had no authority to do so because Father had not been fully utilizing the time granted to him in the 2018 parenting plan. We disagree.

OCGA § 19-9-3 (b) provides:

In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment.

"[I]f reasonable evidence exists in the record to support the trial court's decision to change visitation rights, then the decision of that court will stand ... absent abuse of discretion." Cross v. Ivester , 315 Ga. App. 760, 766 (2), 728 S.E.2d 299 (2012) (citation and punctuation omitted). "Further, it is the express policy of this state to encourage contact between a child and the non-custodial ... parent. OCGA § 19-9-3 (d)." In the Interest of R. E. W. , 220 Ga. App. 861, 862, 471 S.E.2d 6 (1996). See also Gildar v. Gildar , 309 Ga. App. 730, 731-732, 710 S.E.2d 913 (2011) (applying abuse of discretion standard to trial court's decision made pursuant to OCGA § 19-9-3 (b) ).

Here, there was no abuse of discretion. Although the trial court's order recognized that Father had not utilized all of his parenting time under the 2018 parenting plan, it also recognized that there were certain practical hindrances preventing Father from doing so. The trial court explained:

It is undisputed that the Father failed to exercise all available parenting time. First, the Father exercised most, if not all, of his weekend time with the child since 2018. Second, he finds it difficult to accomplish weekday time, which is designated as the second and fourth Tuesdays and Thursdays from after daycare until 7:30 p.m. The Father testified that exercising weekday time was difficult due to it was only two hours, the parties living about 23 miles apart (Sandy Springs and Lithonia), his work schedule, and traffic conditions (one way could take 45 minutes). Third, the Father failed to exercise all of the holiday and summer parenting time due, in part, to the parties’ difficulty in communicating and to the Father's misinterpretation of his rights under the Parenting Plan.

For these reasons, the trial court modified Father's weekday visitation to include overnight stays and clarified his summer visitation schedule to provide two consecutive weeks of parenting time. Making these modifications was not an abuse of the trial court's wide discretion, as "reasonable evidence exists in the record to support the trial court's decision to change visitation rights." Cross , supra at 766 (2), 728 S.E.2d 299 (citation and punctuation omitted).

Nonetheless, Mother argues that the trial court automatically abused its discretion by granting Father a different parenting time schedule when he had not been fully utilizing the prior schedule. But the determinations of visitation and parenting time are not generally subject to such automatic considerations. To the contrary, it is a matter of wide discretion, focused on what is best for the child in any given situation. Gildar , supra at 731-732, 710 S.E.2d 913. See also Williams v. Williams , 301 Ga. 218, 800 S.E.2d 282 (2017). Here, as stated, reasonable evidence exists to support the trial court's decision to modify parenting time. As such, that decision must stand based upon the required deferential standard of review. Id. at 222 (1), 800 S.E.2d 282.

Additionally, to the extent that Mother now contends that the trial court wholly failed to take into account the best interests of the child in assigning parenting time, the record belies her assertion. While the trial court did not make a specific statement about the child's best interests in those exact words (and Mother did not request that the trial court make any findings), the trial court did indicate in its order that the child's welfare guided its decision regarding parenting time. For example, in considering the summer schedule, the trial court indicated that it was attempting to "maintain[ ] ample consistent contact with each parent to ensure [a] strong and healthy family relationship[ ]." And, at the conclusion of the hearing on the motions, the trial court stated that its decision would be premised on the best interests of the child. So, despite Mother's contention, the record indicates that the trial court did consider the child's best interests in reaching its conclusion, and its analysis comports with the goals of OCGA § 19-9-3 (d).

2. In two related enumerations of error, Mother contends that the trial court erred by calculating Father's child support arrearages pursuant to OCGA § 19-6-15 (j), thereby recognizing Father's loss of income stemming from his furlough and eventual termination.³ While we disagree with Mother's contention that the trial court erred by applying this statute at all , we do find that the trial court applied the statute incorrectly in some respects, as more fully set forth below.

According to Father's tax return, he earned $78,143 in 2020. While Father's return does appear to include a $27,679.54 severance payment he received in installments over 16 weeks following his termination, it does not include $17,100 of unemployment benefits he collected. So, Father's full 2020 income was over $95,000, though he suffered economic hardship during the period of his furlough, when he relied solely on unemployment benefits.

By January 2021, Father's severance payments ended, and Father relied again on unemployment benefits totaling $558 per week. He also received a final bonus of $5,901 on March 17, 2021. At the time that the trial court considered Father's request for downward modification of ongoing child support, Father remained unemployed....