Yntema v. Smith

902 S.E.2d 691

YNTEMA

v.SMITH.

A24A0478

Court of Appeals of Georgia.

May 31, 2024

Reconsideration Denied July 02, 2024

Ulice Trey Sauls III, Duluth, Nicholas Paul Martin, Lawrenceville, for Appellant.

Dawn Hunsicker Taylor, Lynne Hunsicker Bradley, for Appellee.

Doyle, Presiding Judge.

In this ongoing child support and custody dispute, Howard Yntema ("the Father") appeals from three orders entered pursuant to an amended petition for modification of child support and custody filed by Leah Smith ("the Mother"). The Father contends that the trial court erred by (1) requiring him to pay back-expenses to the Mother for a period during which she was ordered to pay child support to the Father, (2) failing to award him child support for O. Y., a child who lived primarily with him, (3) not including expenses paid by the Mother’s husband in the Mother’s child support calculations, and (4) awarding attorney fees to the Mother without a statutory basis. For the reasons that follow, we affirm in part, vacate in part, and remand with direction.

The relevant record shows that the Mother and Father were divorced in 2010. They had two children, O. Y., born in July 2005, and E. Y., bora in May 2007. According to the divorce decree, the Father had primary physical custody, and the Mother was ordered to pay $250 monthly child support payments to the Father. The child support obligation continued until, among other things, the children cease to live with the Father or reach 18 years of age, provided that the support continues until the age of 20 if the child is still enrolled in high school.

The Mother filed certain petitions to modify the arrangement, including one in 2017 seeking joint physical custody. In 2022, amid ongoing disputes,¹ the Mother and Father entered into a consent interlocutory order in June 2022, later amended in July 2022 ("July 2022 Consent Order"), requiring the parties to enter reunification therapy and allowing the Mother to have temporary sole physical custody and the Father temporarily having no contact with the children.² Neither order changed the Mother’s child support obligation.

In June 2023, the Mother filed an amended petition for modification of custody and child support as well as attorney fees. On July 7, 2023, O. Y. turned 18 years old and moved to live with the Father, but he was still enrolled in high school. On July 28, 2023, the trial court held an evidentiary hearing on the Mother’s request for child support, and the Mother introduced evidence of various child- related expenses she had incurred since the children came to live with her the prior year.

Following the hearing, the trial court entered three orders: one awarding past expenses related to the children, one awarding attorney fees related to her pursuit of child support, and one awarding child support to the Mother. The Father now appeals, assigning error to each order.

[1] 1. The Father first contends that the trial court erred by ordering "back child support" during a period in which the Mother’s obligation to pay him child support had not been modified or terminated. Based on the particular award made, we disagree.

The written order granted the Mother "a portion of the actual expenses she incurred for the children from July 7, 2022[,] through July 31, 2023," to account for the time during which she had full custody of the children, but no child support award was in effect. The court relied on evidence produced by the Mother that itemized her expenses for that time period and documented her payment of the expenses. The court excluded certain amounts, such as a free gym membership, that were not actually incurred, as well as approximately $95,000 in travel and therapy expenses associated with the reunification process ordered under the July 2022 Consent Order.³ Once the court reached a total recoverable amount expended by the Mother, the court wrote that it "deemed that the [Father’s] portion of expenses should be ninety (90%) percent. That amount equals $39,- 731.8[1]."⁴ The court then reduced that amount by $2,500 — the equivalent of the Mother’s ten months of missed child support payments that she technically owed but had not paid because the court had orally eliminated her child support obligation but had not reduced it to writing. Thus, the final award was $37,231.81.

[2–6] Under Weaver v. Chester,⁵ parents may recover back child support reflecting a portion of the actual expenses incurred by the custodial parent.⁶

While this amount is considered when determining the maximum for a back support award, a trial court must also follow the Child Support Guidelines, which would include at least a consideration of the custodial parent’s income, the noncustodial parent’s income, and other child support obligations of the parents.⁷

This is because

Georgia’s child support laws establish a presumption that the custodial parent will bear the expenses related to the children, assisted by child support paid by the noncustodial parent, with the amount of the child support obligation calculated principally in proportion to the adjusted gross income of each parent….

The presumptive amount of child support calculated pursuant to the statutory child support guidelines is not conclusive …. The trial court also has considerable discretion to deviate from, the presumptive child support amount based on the many specific deviations listed in the guidelines or on other grounds, but only after supporting any deviation with writ- ten findings of fact. Indeed, the guidelines enumerate a set of specific deviations for "extraordinary expenses," which allow the child support obligation to vary from the "average child rearing expenditures for families given the parents’ combined adjusted income and number of children." The guidelines also provide a specific deviation to reflect "parenting time," if the child spends extended time with the noncustodial parent so that parent would bear more of the child’s regular expenses. Any such deviations, however, must be identified and, supported on Schedule E of the child support worksheet, which in turn, must be attached to the trial court’s final child support order or judgment.⁸

[7] Aside from "deem[ing] that the [Father’s] portion of expenses should be [90] [percent]," the trial court’s order does not engage in any of the statutorily mandated fact-finding, nor does it analyze any deviations from the statutory presumptions. Accordingly, we vacate the award of 90 percent of back expenses and remand for the trial court to engage in the fact finding and analysis in accordance with OCGA § 19-6-15.⁹

We note that the Father argues that the $250 child support award due from the Mother during the relevant time frame had not been modified and was therefore res judicata as to his child support obligation during that time frame. But a trial court retains discretion to modify a child support award if warranted, and the trial court did reduce the Father’s back-expense obligation by the amount owed by the Mother under the $250 award in effect during the relevant time period. Therefore, under the facts of this case, the prior child support award in favor of the Father did not prevent the court from awarding certain past expenses to the Mother (calculated in accordance with OCGA § 19- 6-15) during the time the Mother had exclusive custody of the children.¹⁰

[8] 2. The Father also argues that the trial court erred by not awarding child support for O. Y., who was under the age of 20, enrolled in high school, and living with the Father. We agree.

At the child support hearing, the trial court stated that "I cannot award custody of O. Y. to either party … [s]o child support for him is not going to be calculated … [R]ight now there is a court order for custody of [O. Y.] to be with Mom. He is choosing to leave Mom’s custody, and I cannot … change custody of a child who’s reached the age of 18." Based on this, the court refused to award any child support to the Father for O. Y. even though O. Y. had chosen to live with the Father. This was error.

[9, 10] Although the court cannot award custody of a child once the child has reached the age of 18,¹¹ "child support may not be contingent on the child remaining a minor, that is, ordered financial assistance may extend into the child's majority,"¹² as authorized by law. OCGA § 19-6-15 (e) provides, in relevant part:

[T]he court, in the exercise of sound discretion, may direct either or both parents to provide financial assistance to a child … who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age. The provisions for child support provided in this subsection may be enforced by either parent … or by the child for whose benefit the child support is ordered.¹³

Thus, to hold that a parent with whom a qualifying child lives cannot receive child support from the non-custodial parent would frustrate the plain language of this Code section.¹⁴ The trial court misapplied this law at the hearing when it stated, "[O. Y.] will not be considered in these [child support] calculations because I can’t consider him." Accordingly, the trial court erred by holding that it was without any authority to award child support to the Father for O. Y. during the time he qualified for it as provided in the divorce decree.¹⁵

[11] 3. The Father next contends that the trial court erred in its calculations for his child support obligation to the Mother by failing to take into account her husband’s contributions to her expenses. We disagree.

Under OCGA § 19-6-15 (b), the process of calculating child support begins with determining the gross income of the parents, which in part, "shall include all income from any source."¹⁶ Because the Mother is remarried and does not work outside of the home, her husband provides for her support and pays her...