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Jackson v. Sanders

Court of Appeals of Georgia

July 16, 2015

JACKSON
v.
SANDERS

Editorial Note:

This Opinion is Uncorrected and subject to revision by the court.

DILLARD, Judge. Ray, McMillian, JJ., concur. Ellington, P. J., concurs in judgment only. Barnes, P. J., Phipps, P. J., and McFadden, J., concur in part and dissent in part.

OPINION

Dillard, Judge.

Doug Jackson filed a petition for modification of custody, seeking additional parenting time with his then 11-year-old son. The child's mother, Lisa Sanders, opposed the petition and filed a counterclaim for past-due child support. After a bench trial, the trial court denied Jackson's petition, awarded Sanders past-due child support, increased the amount of Jackson's monthly child-support payment, issued a new parenting plan, awarded attorney fees to Sanders, and ordered Jackson to pay a supersedeas bond in satisfaction of the court's judgment.

Jackson appeals, arguing that the trial court erred by (1) imputing an annual income to him that was significantly higher than his actual income; (2) finding that he owed Sanders past-due child support; (3) increasing his child-support obligation above the amount dictated by the relevant guidelines; (4) reducing his parenting time with his son when neither party requested such a reduction; (5) granting attorney fees to Sanders as the prevailing party; and (6) ordering him to pay a $60,000 supersedeas bond. For the reasons set forth infra, we reverse in part; vacate in part; and remand for further proceedings consistent with this opinion.

The record shows that Jackson and Sanders divorced in Florida on November 13, 2001, when their son, __ N.J. __, was less than a year old, and the final judgment dissolving their marriage (the " 2001 Judgment" ) incorporated an agreement that they reached regarding custody and child support. Specifically, Jackson and Sanders each agreed to move to Atlanta on or before March 17, 2003, and live within a reasonable driving distance of each other so that they could co-parent N.J. on a rotating custody schedule. As to physical custody, the 2001 Judgment provided that, when the parties moved to Atlanta and N.J. was at least two years old, the child would spend two days with one parent, two days with the other parent, and then three days with the first parent, alternating this rotation with each parent on subsequent weeks. However, if either Jackson or Sanders did not reside in Atlanta by the agreed-upon date, the other parent would have primary physical custody of the child. And as to child support, the 2001 Judgment provided that Jackson would pay Sanders $1,005 per month.

Shortly before March 17, 2003, Sanders moved to Atlanta, but Jackson did not relocate from Florida to Atlanta until three years later. During that three-year period, Jackson lived in Tampa, but he visited Atlanta weekly to have parenting time with N.J.

In 2005, Jackson filed an action against Sanders in Florida, seeking to enforce the rotating parenting schedule set forth in the 2001 Judgment. But that action was dismissed for lack of jurisdiction, and shortly thereafter, Sanders filed an action in Cobb County, Georgia for modification of custody. In that proceeding, Jackson and Sanders were able to successfully resolve their disputes through mediation, and on August 28, 2007, the trial court approved their new custody agreement (the " 2007 Agreement" ).

Under the 2007 Agreement (which remained in effect until the modification proceeding underlying this appeal), Jackson and Sanders shared joint legal and physical custody of N.J. Specifically, as to physical custody, the parties agreed that N.J. would be with Jackson every other weekend, starting from Friday after school until the next Monday morning. In addition, Jackson would care for N.J. every weekday afternoon after school, and N.J. would also have an overnight visit with Jackson once per week to coincide with N.J.'s involvement in certain sports. The 2007 Agreement also provided that Jackson and Sanders, subject to certain limitations, could select two non-consecutive weeks each year or " floating weeks" to vacation with N.J., and in the summer, the parties would alternate weeks with their son. Jackson's monthly child-support obligation remained the same under the 2007 Agreement.

Jackson and Sanders adhered to the foregoing parenting schedule for the next several years, but on September 6, 2012, Jackson filed the instant petition for modification of custody, asserting that, since the time of the 2007 modification proceeding, there had been a material change in circumstances that warranted such a change in custody. Specifically, he asserted that, due to his son's age, new school, and Sanders's move to a different home, a change in physical custody or parenting time was necessary so that he and Sanders could " continue to share physical custody effectively." Sanders answered, opposing the petition. Subsequently, Sanders filed an amended answer and filed a counterclaim against Jackson, seeking $7,035 in past-due child support. Jackson then amended his petition, asserting that he had satisfied his child-support obligation with Sanders's consent by paying N.J.'s private-school tuition. Thereafter, Sanders filed an amended counterclaim, seeking $14,070 in outstanding child support.

Ultimately, the trial court held a bench trial on Jackson's petition for modification of custody, during which it heard testimony from Jackson, Sanders, a court-appointed guardian ad litem (" GAL" ), and a child psychologist hired by Jackson. Thereafter, the court issued an order, finding that Jackson owed Sanders $27,135 in past-due child support, finding that Jackson failed to meet his burden of showing that a change in custody was in N.J.'s best interests,[1] granting primary physical custody to Sanders, and increasing Jackson's child-support obligation from $1,005 to $3,994 per month. The court reserved ruling on Sanders's request for attorney fees.

In addition, the court issued a new parenting schedule, which altered the custody arrangement delineated in the 2007 Agreement. Specifically, the court ordered that Jackson would have physical custody of N.J. on the first and third weekends of the month and that those visits would begin on Friday after school and last until Sunday at 6:00 p.m. The court also ordered that Jackson would have N.J. overnight for one night on the weeks when he did not have N.J. the following weekend. Additionally, the court ordered that the parties would have equal time with their son in the summer, with N.J. alternating between them each week. Lastly, the court eliminated the optional two-week " floating" period of parenting time that had been included in the 2007 Agreement.

After the court issued its order, Sanders filed a motion for a supersedeas bond, as permitted by OCGA § 5-6-46, requesting that Jackson post a $100,000 bond in satisfaction of the court's judgment. Jackson filed a response, opposing the motion, but the trial court granted it and ordered Jackson to post a $60,000 bond. Also, in a separate order, the trial court awarded Sanders $24,387.71 in attorney fees. This appeal follows.

1.

As a preliminary matter, Sanders claims that Jackson did not file a valid notice of appeal from the trial court's order granting her motion for a supersedeas bond because, instead of filing a second notice of appeal after that order was entered, he merely amended his first notice of appeal as to the underlying judgment.[2] In this regard, we have held that, on appeal, we " may consider orders that were entered prior to or contemporaneously with the judgment being appealed, but judgments cannot be considered on appeal if rendered subsequent to the judgment appealed from." [3] Thus, when a supersedeas-bond order is entered after an appellant files a notice of appeal from a prior judgment, we lack jurisdiction to consider claims regarding that order unless he or she files a second notice of appeal.[4]

Nevertheless, in the case sub judice, Jackson did file a timely notice of appeal after the trial court issued the supersedeas-bond order, and the fact that he styled it as an " amended notice of appeal" is of no consequence. In relevant part, OCGA § 5-6-48 provides:

Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed. [5]

Here, regardless of how Jackson's amended notice of appeal was styled, it expressly noted that he intended to appeal the trial court's August 11, 2014 judgment regarding " the necessity of a supersedeas bond." As a result, Jackson filed a valid notice of appeal with respect to that order, and we have jurisdiction to consider it.[6]

2.

Turning to the merits of Jackson's claims, he first argues that, in imposing an upward modification of his child-support obligation, the trial court erred when it applied OCGA § 19-6-15 (f) (4) (B) and imputed an annual income to him that was significantly higher than his actual income based on an erroneous finding that he presented no reliable evidence of his income. We disagree,[7] but for the reasons set forth infra, we vacate the child-support award and remand for further proceedings consistent with this opinion.

To begin with, we note that, 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 we properly give " due deference to the opportunity of the trial court to judge the credibility of the witnesses." [8] Further, we will not disturb an upward modification of child support if there is any evidence to support it.[9] With this deferential standard of review in mind, we will now consider Jackson's specific claim of error.

In Georgia, determining each parent's monthly gross income is " the first step that a court must take in calculating child support under [our] child[-]support guidelines." [10] And the child-support guidelines define gross income as " all income from any source ...,whether earned or unearned," [11] including, inter alia, income from self-employment.[12] Further,

[i]ncome from self-employment includes income from, but not limited to, business operations ... and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and reasonable expenses required for self-employment or business operations . ... [13]

Generally, income and expenses from self-employment or operation of a business should be " carefully reviewed by the court or the jury to determine an appropriate level of gross income available to the parent to satisfy a child support obligation." [14] But when cases with established orders are

reviewed for modification and a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or jury has no other reliable evidence of such parent's income or income potential, the court or jury may increase the child support of the parent failing or refusing to produce evidence of income by an increment of at least 10 percent per year of such parent's gross income for each year since the final child support ...

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