STRUNK v. STRUNK (2013)

Monica P. Strunk and Martin B. Strunk were married in 1996 and had three children before divorcing in 2008. The husband sought a downward modification of child support in 2009, which the trial court granted in November 2012. In this direct appeal, the wife challenges five of the trial court's findings related to child support. We conclude that the trial court did not abuse its discretion in its rulings, with one exception: we reverse the trial court's grant of a $200 travel deviation to the husband due to its failure to enter the required written findings. Accordingly, we affirm in part and reverse in part.

Following a bench trial in the initial divorce action, the trial court entered a final judgment on September 12, 2008, awarding the wife custody of the three children. In its order, the trial court imputed an annual income of $75,000 to the husband and determined that the husband earned 80 percent of the couple's combined income. The husband was ordered to pay $2,001.60 per month in child support and $400 per month in permanent alimony for three years. After the husband failed to make child support or alimony payments, he was incarcerated for five months in 2009. The husband filed a motion for contempt, contending the wife had violated the final judgment by failing to deliver marital assets and to allow the children unimpeded telephone conversations with him. He filed a separate action seeking a downward modification of child support, modification of visitation, and gradual change in custody. The two actions were consolidated for trial. At the time of the hearing, the husband had remarried, had a new baby and three stepchildren, and was employed as a mortgage loan processor in Florida for an annual base salary of $48,000.

In its November 2012 order, the trial court found that the husband's new employment and the economic realities of the mortgage industry constituted a material change of circumstances and granted his request for a downward modification of child support. The trial court determined the husband had an imputed income of $52,500 and that his voluntary reduction of his base salary to $48,000 for the chance of advancement was not reasonable, granted a travel deviation of $200 per month instead of the requested $700, ordered the husband to provide health insurance for the children and receive a child support credit of $300 per month, and reduced the husband's monthly adjusted income because he had one biological child living in his household. Based on these findings, the husband was required to pay monthly child support of $794 beginning in December 2012. Concerning the $100,000 arrearage in child support owed by the husband, the trial court ordered the husband to pay $250 per month until the child support obligation ended and then $1,000 per month until the arrearage was paid in full. The wife appeals these rulings under OCGA § 5–6–34(a)(11).

1. The wife initially challenges as clearly erroneous the trial court's determination that there has been a substantial change in the husband's income and financial status since the divorce.

Our domestic relations statutes provide that a spouse may seek to modify the award of alimony or child support based on a change in either spouse's income and financial status or in the needs of the child. See OCGA §§ 19–6–19(a), 19–6–15(k)(1). We review the trial court's decision in a modification action for abuse of discretion, see Marsh v. Marsh, 243 Ga. 742, 256 S.E.2d 442 (1979), and “will not set aside the trial court's factual findings unless they are clearly erroneous.” Eldridge v. Eldridge, 291 Ga. 762(1), 732 S.E.2d 411 (2012) (citation and punctuation omitted). In its order, the trial court found that the husband was employed in the mortgage industry; the industry has been unstable, downsizing, and affected by the recession; and the husband had made minimal efforts until recently to gain employment. The trial court further found that the husband's income and financial status have now become stable and it was reasonable for the husband to have accepted a job in Florida given the changes and uncertainty in the mortgage industry, but it was unreasonable for the husband to have changed employers and voluntarily accepted a lower base salary in exchange for the chance of advancement. Therefore, the trial court imputed an income of $52,500 to the husband. Because these factual findings are supported by the evidence, the trial court did not abuse its discretion in granting the husband's petition for a downward modification of child support. See Facey v. Facey, 281 Ga. 367(4), 638 S.E.2d 273 (2006).

2. The wife next contends that the trial court abused its discretion by failing to make the required factual findings in granting the husband a $200 deviation for travel. Under the child support statute, the trial court must “enter a written order specifying the basis for the modification, if any, and shall include all of the information set forth in paragraph (2) of subsection (c) of this Code section.” OCGA § 19–6–15(k)(4). Subsection (c)(2) requires written findings of fact that a deviation applies and the reasons for the deviation, the amount of child support that would have been required if the deviation were not granted, how the application of the child support guidelines “would be unjust or inappropriate considering the relative ability of each parent to provide support,” and how the deviation serves the best interest of the child. Id. at (c)(2)(E)(iii). In this case, the trial court's order states the reasons why the trial court rejected the husband's request for a $700 travel deviation per month, but fails to state why it departed from the presumptive child support amount to award the husband any travel deviation. Because the trial court failed to make all of the necessary findings of fact required by the statute, we reverse the judgment related to this issue and remand for the trial court to redetermine the child support award and support any travel deviation with the mandatory written findings. See Eldridge v. Eldridge, 291 Ga. at 764, 732 S.E.2d 411; Brogdon v. Brogdon, 290 Ga. 618(5)(b), 723 S.E.2d 421 (2012).

3. The wife alleges it was clear error for the trial court to reduce the child support award by allowing a credit of $300 per month for health insurance. OCGA § 19–6–15(c)(2)(D) provides that the trial court may order that a child be covered under health insurance if the insurance “is reasonably available at a reasonable cost” to the parent. The husband testified that he was paying for health insurance for his children through COBRA, and it would cost approximately $700 a month for a family plan or $100 per child once he was on his employer's company policy. The trial court did not abuse its discretion in requiring the husband to provide health insurance for the children and giving him a $300 credit for it. See Simmons v. Simmons, 288 Ga. 670(4), 706 S.E.2d 456 (2011).

4. The wife challenges the trial court's decision to grant the husband a credit as a result of the newborn living in his home, which resulted in an downward adjustment to the husband's monthly gross income, on the grounds that he failed to present documentary evidence of the parent-child relationship. See OCGA § 19–6–15(f)(5)(C). At the hearing, the wife offered into evidence the husband's domestic relations financial affidavit, which listed the new child as living with him. Consistent with the affidavit, the husband testified without objection on direct examination that he lived with his new wife and their newborn child, as well as three of her children from a previous marriage. On cross-examination, the wife's attorney acknowledged the husband's parent-child relationship with the newborn by asking him, for example, if he would be with his “new wife and infant” when the parties' children came to visit him. The wife never objected or argued at the hearing that the husband had failed to present proper documentary evidence of his parent-child relationship with the newborn. Based on the evidence presented, the trial court did not abuse its discretion in granting a downward adjustment to the husband's gross income due to the newborn child living in his home.

5. Finally, the wife contends that the trial court erred as a matter of law in specifying the way the husband was to satisfy the arrearage in back child support and in failing to include in its order the required language on garnishment under OCGA § 19–6–30(a).¹ The trial court properly exercised its discretion in fixing the time and manner of payments of back child support. See Berman v. Berman, 231 Ga. 723(6), 204 S.E.2d 124 (1974). As for the trial court's exclusion of the mandatory garnishment provision, we construe the requirement as ensuring that the parties receive notice of their right to enforce a child support order. The omission of the provision does not affect the wife's substantive right to seek continuing garnishment. See Karsman v. Portman, 170 Ga.App. 194(2), 316 S.E.2d 819 (1984) (a child support order is a money judgment that may be enforced by garnishment); OCGA § 19–6–17(c) (any payment or installment under a child support order is a judgment that may be enforced). Nevertheless, because we are requiring the trial court to enter a new child support order, we direct the trial court on remand to add the garnishment provision to its judgment. See Walker v. Walker, 248 Ga.App. 177(11), 546 S.E.2d 315 (2001).

Judgment affirmed in part and reversed in part and case remanded with direction.

HUNSTEIN, Justice.

All the Justices concur.