Faith M. Calvert v. Jerome L. Calvert

• Court: Court of Appeals of Georgia
• Decided: June 26, 2024
• Docket: A24A0353
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 26, 2024

In the Court of Appeals of Georgia A24A0353. CALVERT v. CALVERT.

BARNES, Presiding Judge.

Faith M. Calvert (“the mother”) appeals from a trial court order modifying

custody and child support for the three minor children she shares with her former

husband, Jerome L. Calvert (“the father”). The mother contends that the trial court

abused its discretion by awarding the father primary physical custody of the two

youngest children, as he had not sought that relief in his petition. She further asserts

that the trial court erred when, in calculating child support, it credited the father for

the children’s health insurance premiums paid by his current wife, but failed to credit

the mother for the health insurance premiums she paid to cover the children. Finally,

the mother claims that the trial court erred in modifying the father’s payment schedule for the past due child support owed her. For reasons explained more fully

below, we find no error and affirm the trial court’s order as to child custody, child

support, and the proposed payment schedule.1

In deciding child custody, “a trial court has very broad discretion, looking

always to the best interest of the child.” (Citation and punctuation omitted.) Taylor

v. Taylor, 293 Ga. 615, 616 (1) (748 SE2d 873) (2013). When we review a custody

determination, we

view the evidence presented in the light most favorable to upholding the trial court’s order[,] . . . mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. If the record contains any reasonable evidence to support the trial court’s decision on a petition to modify custody, it will be affirmed on appeal.

1 We note that the father currently has pending in this Court an appeal that challenges both a May 2022 order finding him in contempt for failure to pay child support awarded by the divorce decree and awarding the mother past due child support and attorney fees. Calvert v. Calvert, Case No. A24A0640 (docketed for the April 2024 term). In that appeal, the father also challenges the final order at issue in this case to the extent that order denied his motion for reconsideration of the May 2022 contempt order. This opinion does not address the merits of the contempt order or the denial of the father’s motion for reconsideration, as those issues are reserved for the appeal in Case No. A24A0640. 2 (Citation and punctuation omitted.) Mitcham v. Spry, 300 Ga. App. 386, 386-387 (685

SE2d 374) (2009).

The record shows that the parties married in 2008 and were divorced pursuant

to a final judgment and decree of divorce entered in December 2013. The divorce

decree granted the mother primary physical custody of the couple’s only minor child,

C. F. C. (born in 2008), and required the father to pay child support. Several months

after the divorce, the parties reconciled and resumed living together as husband and

wife, although they never remarried. During the time they lived together, the parties

had two more children, C. L. C. (born in 2014), and C. J. C. (born in 2016). The

mother and father separated a second time in January 2020, and all three children

remained with the mother. One year later, the oldest child went to live with the father

and in April 2021, the father filed a petition seeking legitimation of the two younger

children; joint legal and physical custody of and visitation with the two younger

children; primary physical custody of the oldest child; and modification of his child

support obligation with respect to the oldest child. The mother counterclaimed for

joint legal custody and primary physical custody of all three children. She also sought

3 child support for all three children and an award of attorney fees under OCGA §

19-6-2.

Several months after the father filed his petition, the mother filed a motion for

contempt based on the father’s failure to pay child support as ordered by the divorce

decree. She also sought attorney fees for the cost of bringing the contempt motion.

The father, in turn, moved for the appointment of a guardian ad litem “to render an

opinion as to what is in the best interest of the children with respect to primary legal

and physical custody.” Following a hearing, the trial court entered an order on May

10, 2022 that, among other things, granted the motion for appointment of a guardian

ad litem; found the father in contempt for failure to pay child support as required by

the divorce decree; and awarded the mother $21,825 in past due child support and

$4,315 in attorney fees. The order required the father to pay the attorney fees within

30 days and to pay the mother $500 per month in past due child support until the

balance was paid.

In December 2022, the guardian ad litem sent a written report to the parties in

which he recommended that the father be given primary physical custody of all three

children. After detailing his concerns, the guardian ad litem concluded:

4 Based on all of the above concerns, as well as others that have come to [light] during this investigation, I believe that the environment that the children would be in at their father’s house would be more stable and beneficial to the young[er] girls. . . . This Guardian cannot help but be somewhat influenced by the fact that [the oldest child], on her own decision, has moved in with her father and is thriving more so than when she was living with her mother. The two younger girls, I believe, require structure, and their time needs to be better controlled, than what appears to be occurring at their mother’s home. I believe, therefore, that it is in the best interest of these girls for primary custody to be awarded to their father . . . .

Prior to the final hearing in June 2023, each parent filed a proposed parenting

plan and a child support worksheet. The father’s parenting plan requested joint legal

custody and primary physical custody of all three children. His child support

worksheet showed a monthly expense of $300 for the children’s health insurance and

he requested a credit for that amount in any child support calculation. The mother’s

parenting plan requested joint legal custody of all three children and primary physical

custody of the two younger children. Her child support worksheet showed a monthly

expense of $419.84 for the children’s health insurance, and she sought a credit in that

amount when calculating child support. 5 At the outset of the final hearing, the mother objected to the father arguing for

physical custody of the two youngest children, noting that he had failed to request that

relief in any pleading. The mother further asserted that the father’s first request for

custody of the younger children was in the parenting plan filed two weeks earlier. The

trial court overruled the objection and allowed the father to proceed with his request

for primary physical custody of all three children. Additionally, the court allowed the

father to move for reconsideration of the prior order finding him in contempt for

failure to pay child support as required by the divorce decree and awarding the mother

past due child support and attorney fees.

The evidence at the hearing showed that while living with their mother, the two

younger children had a significant number of absences and tardies at school. During

the 2021 school year, the middle child missed 48 days of school. And during the most

recent school year (2022-2023), the middle child had 38 absences and 15 tardies while

the younger child had 34 absences and 9 tardies. The mother attributed all of the

children’s absences to illness, but during 2022-2023, each child had at least 10

absences that were unexcused.

6 As a result of learning difficulties, the middle child recently had undergone

educational psychological testing. The mother, however, had failed to inform the

psychologist about the child’s excessive absences from school and he therefore

rendered a diagnosis without that information. And the guardian ad litem testified that

the child’s educational file reflected her teachers’ opinions that her learning issues

might be cured by better attendance.

The guardian ad litem also stated that he was appointed to render an opinion

as to the primary physical custody of the two youngest children. And he reiterated his

recommendation that the father receive primary physical custody of all three children,

opining that the younger girls would benefit both from the more structured

environment in the father’s home and from living with their older sister.

With respect to the children’s health insurance, the mother requested that she

be the one to maintain that insurance, noting that she currently covered the children

under a policy she purchased at a cost of $419.84 per month. The evidence further

showed that the children’s stepmother also covered them through a plan provided by

her employer, WellStar Hospital, at a cost of $300 per month.

7 Following the hearing, the trial court entered a final order granting the parents

joint legal custody, granting the father primary physical custody of all three children,

and requiring the father to maintain health insurance for the children. The order also

required the mother to pay child support as calculated on the father’s child support

worksheet, which gave the father a $300 monthly credit for the children’s health

insurance. Additionally, the order denied the father’s motion for reconsideration of

the prior order finding him in contempt and awarding the mother past due child

support and attorney fees. And the order found that the father remained in contempt

for failure to pay the attorney fee award in full and for failure to make any payments

on the past due child support. The order therefore required the father to pay $400 a

month to satisfy the $3,165 balance of attorney fee award. Following satisfaction of

that award, the father was ordered to pay the $21,825 in past due child support at the

rate of $500 per month. The mother now appeals from the trial court’s order.

1. The mother contends that the trial court erred in allowing the father to

pursue primary physical custody of the two youngest children because he had not

requested that relief in his pleadings. We find no error.

Under Georgia law:

8 When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits.

(Emphasis supplied.) OCGA § 9-11-15 (b).

The mother contends that because she objected to the father’s at-trial request

for custody of the two youngest children, that issue was not tried with her consent.

Both the above-emphasized language and our case law make clear, however, that an

objection to relief not requested in a complaint will be sustained where the objecting

party had insufficient notice of that claim prior to trial. See Sedehi v. Chamberlin, 344

Ga. App. 512, 516-517 (1) (811 SE2d 24) (2018) (in an action for divorce, the trial court

erred in awarding alimony to the wife, who had counterclaimed for an annulment and

damages for fraud; “throughout discovery and during trial, [the wife] affirmatively

9 indicated that she sought only damages for fraud, regardless of whether the court

rejected her claim for an annulment,”and therefore the husband had no notice that

alimony was an issue) (emphasis omitted). See also Hackbart v. Hackbart , 272 Ga. 26,

26-27 (526 SE2d 840) (2000)(where a party neither files a responsive pleading nor

appears at trial, the “trial court may not award relief beyond sought that in the

complaint” and the “complaint may not be amended to conform to the evidence,” as

the absent party had no notice that such relief was a possibility); Daggy v. Daggy, 366

Ga. App. 320, 321 (1) (882 SE2d 542) (2022) (same).

In this case, the record shows that the mother had notice well in advance of trial

that custody of the two youngest children was at issue. As noted above, the father

requested a guardian ad litem specifically “to render an opinion as to what was in the

best interest of the children with respect to primary legal and physical custody.” And

the guardian ad litem testified that at the time he was appointed,2 “the question was

whether . . . there was going to be a change of custody of [the two younger children].”

Moreover, six months prior to the final hearing, the mother received the guardian ad

litem’s recommendation that the father be awarded primary physical custody of all

2 The guardian ad litem was appointed on April 8, 2022. 10 three children. Thus, the mother had notice that custody of the two younger children

was at issue, and the trial court did not err in allowing the father to pursue primary

physical custody.

2. With respect to health insurance premiums for children, the Georgia Code

provides, in relevant part, that “[t]he amount that is, or will be, paid by a parent for

health insurance for the child for whom support is being determined shall be an

adjustment to the basic child support obligation and prorated between the parents

based upon their respective incomes.” OCGA § 19-6-15 (h) (2) (A) (i). Relying on this

language, the mother argues that the trial court erred in giving the father a $300 credit

on the child support worksheet for the children’s health insurance and in failing to

credit her with the insurance premiums she paid for the children. Specifically, the

mother contends that because the health insurance at issue is provided by the father’s

wife — rather than by the father— the trial court should have allowed her to maintain

the health insurance for the children. She further contends that the father is not

entitled to a credit for health insurance because the premium is paid by the father’s

wife, and the wife is not a parent within the meaning of the code. We disagree.

11 The mother’s argument ignores additional language found in OCGA § 19-6-15

(h), which provides that “[i]f either parent has health insurance reasonably available

at reasonable cost that provides for the health care needs of the child, then an amount

to cover the cost of the premium shall be added as an adjustment to the basic child

support obligation.” OCGA § 19-6-15 (h) (2) (B) (i). And here, the evidence showed

that the father had health insurance for the children “reasonably available” to him

through his wife’s employer. And given that the health insurance available to the

father costs approximately $100 per month less than that available to the mother, the

trial court was entitled to find that the cost of this insurance was reasonable and that

the father, rather than the mother, should maintain the children’s health insurance.

Accordingly, the trial court did not err in allowing the father to maintain the children’s

health insurance and in crediting him the cost of that insurance on the child support

worksheet.

3. The mother asserts that the trial court committed legal error in structuring

the father’s payments for past due child support so that the payments did not begin

until after the father has completed his payment of the attorney fee award. She argues

that because payment of past due support is now “contingent” upon the father

12 satisfying the attorney fee award, the court’s order constitutes an impermissible

modification of child support. See OCGA § 19-6-17 (e) (3) (a child support award is

not subject to retroactive modification). Here, however, the court did not modify the

support award — i.e., it did not reduce, forgive, or otherwise change the amount due.

Instead, the court simply structured the payments of both the attorney fee award and

the child support arrearage to accommodate the father’s finances. See Strunk v.

Strunk, 294 Ga. 280, 283-284 (5) (754 SE2d 1) (2013) (in a contempt proceeding for

a failure to pay child support, a trial court may “determine the timing and manner of

the payment of [any] arrearage”); Deese v. Deese, 230 Ga. 105, 106-107 (196 SE2d 16)

(1973) (same).

Moreover, despite the mother’s argument to the contrary, the payment of the

past due child support is in no way contingent on payment of the attorney fee award.

Based on the amounts awarded and the payment schedule, the mother has the

information necessary to calculate when the attorney fee award will be satisfied and

when the past due support payments should begin. If the father fails to begin payments

on that date, the mother can seek appropriate legal relief to enforce the judgment.

13 For the reasons set forth above, we find no reversible error and affirm the trial

court’s order as to child custody, child support, and the payment schedule for any

attorney fees and past due child support owed by the father.

Judgment affirmed. Gobeil and Pipkin, J. J., concur.