Noble v. Noble

345 Ga.App. 799

815 S.E.2d 150

NOBLE

v.NOBLE.

A18A0617.

Court of Appeals of Georgia.

May 18, 2018

Peggy Lynnette Brown, Lawrenceville, for Appellant.

Christopher Todd Adams, William Mark Hill, Lawrenceville, for Appellee.

Ellington, Presiding Judge.

In 2015, Kathleen Noble (now Kathleen McGinn) initiated this action in the Superior Court of Spalding County against her ex-husband, Stephen Noble, seeking to have him held in contempt of court for violating certain provisions of the parties’ 2013 divorce decree. She also sought an increase in his child support obligation. The case was transferred to the Juvenile Court of Spalding County for resolution. In a March 2017 order, the juvenile court modified custody, making McGinn, who was living in New Hampshire, the primary physical custodian of the parties’ oldest child, and Noble, still residing in Georgia, the primary physical custodian of the parties’ four younger children. The March 2017 order expressly reserved the issue of child support for a later order, stating the court reserved "the right to hold a hearing regarding child support if this issue cannot be resolved by the parties and counsel."

After a hearing on June 22, 2017, the juvenile court entered the appealed order providing for child support on July 6, 2017. The juvenile court ordered McGinn to pay Noble $754 per month in child support and ordered Noble to pay McGinn nothing, which constituted a deviation from the presumptive amount of child support under Georgia’s child support guidelines. We granted McGinn’s application for a discretionary appeal.¹ She contends the juvenile court erred in several respects: (1) in including in her income as a fringe benefit of employment free tuition that she received through her employer; (2) in awarding Noble a deviation of $1,377 from the presumptive amount of child support, purportedly based on an increase in Noble’s living expenses due to McGinn’s relocation to New Hampshire; (3) in refusing to award her a deviation for her visitation-related travel expenses; (4) and in adjusting Noble’s presumptive amount of child support for the health insurance he pays for the four children in his custody while failing to award her an adjustment for the health insurance premium she pays for the child in her custody. For the reasons explained below, we reverse as to the tuition benefit and the deviation of $1,377 but otherwise affirm.

In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the "any evidence" rule, under which a finding by the trial court supported by any evidence must be upheld.

(Citations and punctuation omitted.) Franklin v. Franklin , 294 Ga. 204, 205, 751 S.E.2d 411 (2013).

[Q]ualitative 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.

(Citation and punctuation omitted.) Parker v. Parker , 293 Ga. 300, 304 (2), 745 S.E.2d 605 (2013).

1. As a preliminary matter, we note that McGinn argues that the trial court erred in entering the child support order over her objection that the order, which was drafted by Noble’s counsel, did not comport with the trial court’s oral ruling at the hearing. Under Georgia law, however,

an oral pronouncement by a trial court during a hearing is not a judgment until it is reduced to writing and entered as a judgment. An oral pronouncement [explaining how the court intends to rule] is not binding. It may provide insight on the intent of a later written judgment, but any discrepancy between the written judgment and oral pronouncement is resolved in favor of the written judgment.

(Citations and punctuation omitted.) Williams v. Williams , 295 Ga. 113, 114 (1), 757 S.E.2d 859 (2014). We will not assume from the fact that counsel for Noble drafted the final order that the order did not memorialize the trial court’s intended ruling. Rather, in light of the fact that the trial court declined to modify the order after McGinn objected on this basis, we must presume the contrary. See Fuller v. Fuller, 279 Ga. 805, 806 (1), 621 S.E.2d 419 (2005) ("Even when a trial court adopts a proposed order verbatim, the findings of fact therein are those of the court and may be reversed only if they are clearly erroneous.") (citations and punctuation omitted); Resource Life Ins. Co. v. Buckner , 304 Ga. App. 719, 739 (5), 698 S.E.2d 19 (2010) ("[A] trial court’s adoption, verbatim, of a proposed order drafted by a party does not constitute an abuse of discretion.") (citations and punctuation omitted). This argument presents no basis for reversal.

2. McGinn contends that the juvenile court erred in calculating her gross income by including as a fringe benefit of her employment free tuition provided by the university she works for.² Generally speaking, a court determining the child support responsibility of a parent must follow Georgia’s statutory child support guidelines.³ The guidelines instruct a court to determine the parents’ gross incomes and apply specified adjustments. OCGA § 19-6-15 (b), (f). The guidelines provide:

Fringe benefits for inclusion as income or "in kind" remuneration received by a parent in the course of employment,

or operation of a trade or business, shall be counted as income if the benefits significantly reduce personal living expenses. Such fringe benefits might include, but are not limited to, use of a company car, housing, or room and board. Fringe benefits shall not include employee benefits that are typically added to the salary, wage, or other compensation that a parent may receive as a standard added benefit, including, but not limited to, employer paid portions of health insurance premiums or employer contributions to a retirement or pension plan.

OCGA § 19-6-15 (f) (1) (C).

The guidelines do not otherwise define "personal living expenses," and we find no precedent addressing whether college tuition is included in the broad category of personal living expenses. Common sense would suggest that "personal living expenses," as opposed to "personal expenses," denotes those expenses that are necessary to maintaining daily life, such as food, shelter, transportation to and from employment, etc., not those that may be forgone or deferred.⁴ Because the tuition benefit did not significantly reduce McGinn’s personal living expenses, the trial court erred in considering those payments as a fringe benefit to be included in her gross income. Scott v. Scott , 297 Ga. 775, 776-778, 778 S.E.2d 230 (2015).

3. McGinn contends that the juvenile court erred in awarding Noble a nonspecific deviation of $1,377 from the presumptive amount of child support for the child who lives with her.

A finder of fact may in its discretion deviate from the presumptive amount for any of eleven specified reasons or for another reason under a catch-all "[n]onspecific" category. OCGA § 19-6-15 (b) (8) (L).⁵ Any deviation must be "supported by the required findings of fact and application of the best interest of the child standard." OCGA § 19-6-15 (b) (8). A deviation must be based on a finding "that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined[.]" OCGA § 19-6-15 (i) (1) (B). The findings must be in writing and shall 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 presumptive amount of child support had not been rebutted; and

(iii) How, in [the fact finder’s] 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.

OCGA § 19-6-15 (i) (1) (B).⁶

The record shows that, based on Noble’s gross monthly income of $9,745.83, the presumptive amount of his child support obligation for the child who lives with McGinn was $1,122.33, after adjusting for health insurance expenses. At the child support hearing in June 2017, Noble’s counsel requested a nonspecific deviation from the presumptive child support of $1,377 per month. He argued that McGinn’s decision to move to New Hampshire forced Noble to lease a second, larger residence because his house was too small for him and the children. He stated that, although Noble could put the house up for sale, rather than continue carrying the mortgage and other expenses, he did not want to do so and that fairness required a deviation because McGinn’s actions forced him to maintain two different households. McGinn objected to the deviation. In the final order, the juvenile court allowed the requested nonspecific deviation of $1,377 per month "because [Noble’s] living expenses increased due to [McGinn’s] relocation to New Hampshire." Because the deviation exceeded the presumptive child support amount, the ruling reduced Noble’s obligation to zero.

McGinn contends that the award of a nonspecific deviation to Noble must be reversed because the juvenile court did not support its award with the statutorily-required findings of fact. We agree. The order does not contain a finding of how application of the presumptive amount of child support would be unjust or inappropriate or how the best interest of the children for whom support was being determined will be served by deviation from the presumptive amount...