Scott v. Scott

297 Ga. 775

778 S.E.2d 230

SCOTT

v.SCOTT.

No. S15F1079.

Supreme Court of Georgia.

Oct. 5, 2015.

Jean Miller Kutner, Atlanta, H. William Sams Jr., Augusta, Bree Owens Sullivan, Thomasville, for appellant.

Bruce Wheat Kirbo, III, Bainbridge, for appellee.

Opinion

BENHAM, Justice.

This case involves Husband Stephen Turner Scott's challenge to the trial court's final child support order entered in the divorce action initiated by Wife Amanda Kay Scott. At the time of the final bench trial in the parties' divorce case, Husband had ceased being a self-employed farmer, as he had been at the time the trial court entered the temporary child support order, and he had commenced working as an employee of his parents' farming business. He had also moved into a house owned by his parents. The final decree required Husband to pay $1,004.00 per month in child support based upon the trial court's finding that Husband's gross monthly income was $5,299.39. This figure consisted of a finding that Husband earned $2,166.67 in monthly wages, along with monthly fringe benefits as follows: $1,177.40 for the use of a 2011 Ford F–250 truck provided by his employer/parents; $100.00 for automobile insurance premiums; $400.00 for gasoline; $30.32 for the monthly average ad valorem tax and registration payments for the truck; $1,000.00 for the use of a house belonging to his parents; $350.00 for the power bill paid by his parents; and $75.00 for a cellular telephone they provided to him. We granted Husband's discretionary appeal to consider whether the trial court erred in its determination of fringe benefits available to Husband for purposes of calculating his gross monthly income.

“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.” OCGA § 19–6–15(f)(1)(C). The primary issue with respect to each sum the trial court found to constitute a fringe benefit is whether it was received by Husband in the course of his employment. “ ‘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 witnesses.’ ” (Citation omitted). Autrey v. Autrey,288 Ga. 283, 284–285, 702 S.E.2d 878 (2010). See also Walton v. Walton,285 Ga. 706, 708(2), 681 S.E.2d 165 (2009). But we review de novo the trial court's application of the law to the facts. See Lawrence v. Lawrence,286 Ga. 309, 310(1), 687 S.E.2d 421 (2009). For the reasons that follow, we affirm in part and reverse in part, and remand for further proceedings.

Truck and expenses associated with it:The undisputed evidence shows the truck in question is a heavy-duty truck with the ability to haul heavy farming equipment, and is not the type of truck typically used solely for personal transportation due to cost of operation. Husband is the owner of this truck and he previously used it in his own farming business before he quit that operation and started to work for his parents, though he also previously used it for personal transportation. When Husband went to work for his parents, his father's farming business, in an informal arrangement, commenced leasing the truck from Husband, and in consideration for its use the father's farming business now pays Husband's debt service on the truck and all expenses incurred in the operation and maintenance of it. Husband's parents own other vehicles used on the farm and they employ other farm workers than Husband. The undisputed evidence shows that during the work day, each employee of the parents' farming business uses whatever truck is best fit for the job the employee is doing. As such, Husband testified he is not assigned the specific use of the F–250. He also testified that he, alone, among the farm's employees, is permitted to drive a truck home at the end of the work day because his parents do not provide a company-owned vehicle for the personal use of their employees. Husband also testified he does not always drive home the F–250; instead, he drives home whatever vehicle he was using at the end of the day, unless he needs a vehicle with a rear seat to transport his children, in which case he may chose to drive home the F–250 or another vehicle with a rear seat, such as an F–150 owned by his father.

The trial court attributed the entire cost of the truck payment and costs of its operation to Husband as a fringe benefit that increased his income for purposes of calculating child support. Although the undisputed evidence shows the truck is not exclusively used by Husband and that it is used primarily for his parent's farming business, whether by him or by others, the evidence also shows Husband is permitted to drive either the F–250 or some other vehicle for his personal use. Since Husband previously used this vehicle not only for...