FOURTH DIVISION MERCIER, C. J., DILLARD, P. J., and LAND, J.
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 11, 2025
In the Court of Appeals of Georgia A25A0128. GIBSON v. FOWLER.
DILLARD, Presiding Judge.
Hillary Fowler—the mother of then five-year-old twin boys—filed a petition for
modification of child support, seeking an increase in the child-support obligations of
the boys’ father, Walter Gibson. Following an evidentiary hearing, the trial court
significantly increased Gibson’s child-support obligations. On appeal, Gibson
contends the trial court erred by (1) increasing his child-support obligations by
imputing an inflated income to him even though he submitted evidence of his actual
earnings; (2) including extraordinary educational expenses despite the lack of any
supporting evidence; adding non-work-related childcare expenses; and adding a high-
income deviation based on imputed rather than adjusted income; and that as to
educational and work-related childcare expenses, the trial court failed support its calculations on the proper worksheets; and (3) by amending its order in a subsequent
term of court to make the judgment temporary, rather than final, which required him
to pay the new support award during the pendency of the appeal. For the following
reasons, we vacate the trial court’s ruling and remand this case for further proceedings
consistent with this opinion.
Viewed in the light most favorable to the trial court’s rulings,1 the record shows
that Fowler and Gibson are the unmarried parents of twin boys, W. G. and H. G., born
in 2018. Shortly after the boys’ birth, Fowler filed a petition to establish paternity and
child support, and she and Gibson ultimately entered into a consent order and
parenting plan, which the trial court approved on June 4, 2019. Under that plan, the
parties shared legal custody, Fowler retained primary physical custody, and the court
ordered Gibson to pay $1,584 per month in child support. But later that same month,
Gibson moved to St. Louis, Missouri, for employment purposes.
In October 2020, both boys were diagnosed with speech-delay issues, and W.
G. qualified for speech and occupational therapy services. About a year later, H. G.
1 See Cousin v. Tubbs, 353 Ga. App. 873, 879 (3) (a) (840 SE2d 85) (2020) (explaining that following a bench trial, we review a trial court’s ruling on a child-support modification petition for an abuse of discretion, and we will uphold the court’s factual findings if they are supported by any evidence). 2 was also determined to need speech therapy. According to Fowler, efforts to have
Gibson submit claims for the boys’ therapy to his insurance were unsuccessful, and
a later effort to submit such claims for reimbursement with her own insurance was
similarly unsuccessful. As a result, Fowler paid for the speech therapy out of her own
pocket.
On October 27, 2022, Fowler filed a petition to modify child support, claiming
that Gibson’s income had increased since the 2019 order. Gibson filed an answer, and
in January 2024, the matter proceeded to an evidentiary hearing. During that hearing,
Gibson testified that he began working at Equifax in a sales leadership position in July
2019 and earned a base salary of $275,000. Over the next two years, that base salary
rose to $296,000, but under Equifax’s aggressive commissions policy, Gibson
increased his overall compensation above that base each year that he worked there.
Indeed, his W-2s introduced at the hearing showed Gibson’s gross income as follows:
2019 – $418,191; 2020 – $1,200,572; 2021 – $945,450; and 2022 – $330,000. With
regard to the significant increase in income in 2020 and 2021, Gibson explained that
one of the lines of business for which he was responsible was “Unemployment Claims
Management,” and when the COVID-19 pandemic struck, sales of these
3 unemployment-claims packages, unsurprisingly, rose considerably. Gibson noted that
aside from those two years, he had “never made half that much,”and he described the
two-year spike as a “lightning-in-a-bottle scenario” and a “once-in-a-century type of
a deal.”
Gibson added that he left Equifax in February 2022 to work in a similar sales
position for an education tech firm, for which he was paid a base salary of $300,000.
But the move ended up being unsuccessful in light of the company’s decreasing sales
revenue. And as a result, the company laid him off in November 2022—around the
same time Fowler filed her petition for modification—but paid him through the end
of December of that year. Gibson’s 2022 W-2—which was also introduced at the
hearing—indicated a gross income of $330,000. Since the layoff, Gibson stated that
he had applied for approximately 270 sales management jobs with the salary range of
$150,000 to $200,000 (so as to be somewhat like his past salaries), but as of the
hearing, he had not yet obtained permanent employment. Meanwhile, Gibson
performed some temporary contract work, and he introduced evidence of those
earnings, with his 2023 W-2 indicating a gross income of $230,510.
4 Finally, Gibson acknowledged that his assets included jewelry worth about
$30,000, retirement accounts totaling approximately $1,200,000, and two vehicles
were collectively valued at nearly $90,000. Gibson also added that he had been
withdrawing money from his savings and some of his retirement accounts since
becoming unemployed in order to meet his expenses and remain current on his child-
support obligations for his two sons. And given his current circumstances, he
requested the trial court grant a downward deviation to reflect his current unemployed
status.
Fowler also testified during the hearing and explained that she currently works
full-time and is employed as an au pair to care for the boys, who—as noted
above—have speech challenges and require specialized schooling; and she currently
spends approximately $2,000 per month for childcare. Fowler stated that tuition at
the boys’ then-current school was $1,995 per child per year, but that she planned to
move them to a different school. As of the date of the hearing, she had not selected a
new school for the boys, but she testified that she was strongly considering the Atlanta
Speech School, which charges an annual tuition of $9,890 per child. Fowler added
that she also looked at Woodward Academy, which would cost $33,000 per year per
5 child, but that, while she had not completely ruled it out, it was an unlikely option
because its distance from her home would make the transportation logistics difficult.
After the hearing, on April 15, 2024, the trial court entered a final order, in
which it imputed Gibson’s gross annual income at $681,820. To arrive at that figure,
the court did not consider Gibson’s most recent W-2 (which showed an income of
$230,510), but it looked at his 2019-2022 W-2s, discarded his highest yearly salary
($1,200,000) and lowest yearly salary ($330,000) from those years, and averaged the
remaining two years. Based on this calculation, as well as a $2,000 high-income
deviation, the trial court increased Gibson’s monthly child-support obligation from
$1,584 to $4,589 per month. In addition, expressing its frustration with Gibson’s
failure to exercise more frequent visitation, the trial court granted Fowler’s request
for additional work-related childcare costs in an amount up to but not to exceed
$1,600 per month. And using the Woodward Academy tuition of $33,000 per year for
each child as a template, the court awarded Fowler extraordinary educational expenses
up to $3,575 per month. In sum, the trial court determined Gibson’s total child-
support obligation to be up to $9,764 per month. The trial court also concluded that,
although he was currently unemployed, Gibson was capable of obtaining another high-
6 paying job comparable to his Equifax position and, until then, he could draw on his
assets—including his savings and various retirement accounts—to meet his child-
support obligations.
On April 19, 2024, the trial court amended its final order but only to incorporate
the parenting plan the parties consented to before the hearing. A few days later, on
April 24, 2024, Gibson filed a notice of intent to file a discretionary application
seeking review of the final order. Three weeks later, Fowler filed a motion to correct
a clerical omission and, in the alternative, a motion for supersedeas bond. Fowler
requested the trial court amend its order to make the terms of the order a new
temporary order and thereby enforceable pending appeal.2 The trial court agreed, and
on May 20, 2024, it entered an amended order providing that the new child-support
award would “act as a temporary order, which shall bind the parties pending appeal
of the final judgment.” Gibson moved to vacate that order, but on July 5, 2024, we
granted Gibson’s application for a discretionary appeal; and so a few weeks later, the
2 See Franklin v. Franklin, 294 Ga. 204, 207-08 (3) (751 SE2d 411) (2013) (explaining that by specifying a new temporary order would take effect in the event of an appeal, the trial court properly ensured that wife’s obligation to pay child support would remain in force and effect even if wife challenged final decree). 7 trial court ruled that it now lacked jurisdiction to consider his motion. This appeal
follows.
On appellate review of a bench trial, we 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.”3 But
importantly, the trial court’s application of the law to the facts is “reviewed de
novo.”4 With these guiding principles in mind, we turn to Gibson’s specific claims of
error.
1. Gibson contends the trial court erred in increasing his child-support
obligations by imputing an inflated income to him even though he submitted evidence
of his actual earnings. We agree.
Under Georgia law, determining each parent’s monthly gross income is “the
first step that a court must take in calculating child support under our child support
3 Cousin, 353 Ga. App. at 874-75 (punctuation omitted); accord Autrey v. Autrey, 288 Ga. 283, 284-85 (2) (702 SE2d 878) (2010); Jackson v. Sanders, 333 Ga. App. 544, 548 (2) (773 SE2d 835) (2015). 4 Cousin, 353 Ga. App. at 875; see Franco v. Eagle, 361 Ga. App. 506, 507 (1) (864 SE2d 675) (2021) (explaining that when a question of law is at issue in a child support- modification case, we review the trial court’s decision de novo). 8 guidelines.”5 These guidelines broadly define gross income as “all income from any
source, . . . whether earned or unearned[.]”6 And with the goal of determining gross
income in modification cases such as here, OCGA § 19-6-15 (f) (4) (B), in relevant
part, provides:
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 the jury has no other reliable evidence of such parent’s income or income potential, the court or the jury may impute income as set forth in subparagraph (A) of this paragraph, or 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 order was entered or last modified and shall calculate the basic child support obligation using the increased amount as such parent’s gross income.7
5 Cousin, 353 Ga. App. at 880 (3) (a) (i) (punctuation omitted); accord Franco, 361 Ga. App. at 507 (1) (a); see OCGA § 19-6-15 (b) (1) (“Pursuant to this Code section, the determination of monthly child support shall be calculated as follows . . . Determine the monthly gross income of both the custodial parent and the noncustodial parent pursuant to subsection (f) of this Code section . . . .”). 6 OCGA § 19-6-15 (f) (1) (A). 7 (Emphasis supplied). 9 But particularly noteworthy, the Supreme Court of Georgia has held that the text of
this statute creates “two conditions precedent to the applicability of the provision: (1)
a parent’s failure to produce ‘reliable evidence of income’ and (2) the absence of any
other ‘reliable’ evidence of such parent’s income or income potential.”8 And it is only
“[i]f these two conditions precedent are met, the text provides, the trier of fact ‘may’
resort to the remedy” prescribed in the statute to increase a parent’s support
obligation.9 Our Supreme Court further explained that “[t]he clear [codified] intent
of the subsection is to provide for a proxy—which is also in the nature of a
8 Jackson v. Sanders, 299 Ga. 332, 334 (788 SE2d 387) (2016); see Franco, 361 Ga. App. at 508-09 (1) (a) (noting “our Supreme Court has explained that there are two ‘conditions precedent to’ imputing income under OCGA § 19-6-15 (f) (4): ‘(1) a parent’s failure to produce ‘reliable evidence of income’ and (2) the absence of any other ‘reliable evidence of such parent’s income or income potential’” (punctuation omitted)). 9 Jackson, 299 Ga. at 335. Prior to 2018, that remedy was solely the 10 percent (at the least) increase to the parent’s previous gross income at issue in Jackson; but in 2018, the General Assembly added the current “may impute income as set forth in subparagraph (A) of this paragraph, or may” language, thus providing a trial court with a second means of increasing a parent’s support obligation. But also notably, the two conditions precedent in the text were unchanged. See Ga. L. 2018, p. 937, § 1-2 (effective July 1, 2018). 10 penalty—for situations in which the parent’s failure to cooperate impedes the court’s
ability to determine how appropriately to modify child support.”10
Here, the trial court’s final order does not show that Gibson failed to produce
reliable evidence of his gross income or that no other reliable evidence of his current
income existed—which OCGA § 19-6-15 (f) (4) (B) requires before the statute’s
imputation provision becomes applicable. In fact, the trial court’s order acknowledges
that Gibson provided evidence of his gross income for the last four years and that he
was attempting to obtain permanent employment since being laid off but was thus far
unsuccessful. And while the trial court expressed frustration with the reasons Gibson
gave for failing to visit his sons more often, nothing in the order or hearing transcript
indicates it questioned Gibson’s credibility as to his past income or earnings from the
temporary contract work in which he had engaged while seeking permanent
employment. Yet, despite the lack of any determination that the two conditions
precedent in OCGA § 19-6-15 (f) (4) (B) had been satisfied (or any mention of the
statute for that matter), the trial court imputed Gibson’s income (and ultimately his
support obligation) by analyzing his earning capacity. In doing so, the trial court
10 Jackson, 299 Ga. at 336. 11 erred.11 Neither the trial court nor this Court is at liberty to disregard either the text
of OCGA § 19-6-15 (f) (4) (B) or the Supreme Court of Georgia’s explicit
construction of it.12
11 See id. (holding “that the trier of fact may utilize OCGA § 19-6-15 (f) (4) (B) where it determines that (1) the parent has failed to produce, and (2) there is not otherwise available, credible evidence establishing a significant portion of the parent’s total gross income as defined in the statute. If the trier of fact determines that these conditions precedent have been satisfied, it will have the discretion to utilize the prescribed increment in determining the modified child support amount.” (emphasis supplied)). Cf. Berg v. Beaver, 364 Ga. App. 350, 352-53 (1) (874 SE2d 868) (2022) (explaining that father’s submission of tax returns, bank statements, and other income and expense statements did not preclude trial court from imputing his income when establishing child-support obligation, given that father was unable to explain discrepancies in financial documents, could not explain why certain income was included on some documents but not on others or why deposits into his bank account far exceeded his reported income); Franco, 361 Ga. App. at 509-10 (1) (a) (holding that trial court could impute father’s income pursuant to OCGA § 19-6-15 (f) (4) (B) based on finding evidence of income submitted by father was not credible). 12 See Ward v. Marriott Int’l, Inc., 352 Ga. App. 488, 493 (2) (a) (835 SE2d 322) (2019) (“[A]s an intermediate appellate court, we are bound by Georgia statutes and Supreme Court of Georgia decisions. When the Supreme Court has addressed an issue in clear terms, this [C]ourt is not at liberty to decline to follow the established rule of law.” (punctuation omitted)); GA. CONST. Art. VI, § VI, Para. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); see also West v. City of Albany, 300 Ga. 743, 745 (797 SE2d 809) (2017) (explaining “courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless” (punctuation omitted)). 12 Moreover, even if we could construe the trial court’s final order as having
determined that the two conditions in OCGA § 19-6-15 (f) (4) (B) were satisfied, the
court erred in how it calculated that imputed income. As our Supreme Court has held,
“[i]n certain circumstances, earning capacity rather than gross income may be used
to determine child support, and while a party’s past income is some evidence of
earning capacity, it alone is not conclusive, but must be considered along with other
relevant circumstances.”13 Toward that end, in addition to mirroring the language of
subparagraph (B) concerning reliable evidence of income, OCGA § 19-6-15 (f) (4) (A)
identifies factors that should be considered in imputing income, providing in relevant
part that
the court or the jury shall take into account the specific circumstances of the parent to the extent known, including such factors as the parent’s assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, the prevailing earnings level in the local community, and other relevant background factors in the case.
13 Herrin v. Herrin, 287 Ga. 427, 428 (696 SE2d 626) (2010) (punctuation omitted); accord Duncan v. Duncan, 262 Ga. 872, 873 (1) (426 SE2d 857) (1993). 13 But significantly, in order to sustain an award of child support premised on earning
capacity, there “must be evidence that the parent then has the ability to earn an amount
sufficient to pay the award of support; otherwise, the award cannot stand.”14
Here, the trial court imputed an annual income to Gibson—$681,820—that is
three times what he made in his most recent year of full-time employment by
excluding his highest and lowest earning years and then averaging the two middle
earning years for two of the five previous years. But inexplicably, the court overlooked
Gibson’s most recent W-2, which would seem to be the most predictive of his future
earning capacity, or the earnings from the temporary contract work in which he
engaged while seeking permanent employment. Additionally, the trial court ignored
Gibson’s unrefuted testimony that two of those years reflected anomalous earnings
due to the pandemic—an event not likely to be repeated (at least not with any degree
of certainty), and so not a reliable basis for predicting his future earning capacity. So,
although the trial court was well within its discretion to consider Gibson’s assets in
imputing his income, the court seemingly ignored Gibson’s similarly unrefuted
testimony that—given his current unemployment—he was steadily depleting some
14 Herrin, 287 Ga. at 428-29 (punctuation omitted) (emphasis supplied). 14 of these assets to pay his current expenses, including his child-support obligations.
And finally, the trial court’s order assumed Gibson could find employment
comparable to his prior employment relatively quickly, even though the evidence
showed he had been trying for several months—applying for more than 200
positions—without success. Given these particular circumstances, the trial court
abused its discretion by cherry-picking the evidence on which it relied to calculate
Gibson’s earning capacity. Indeed, absent evidence of Gibson’s present ability to earn
$681,820 and ability to pay $9,764 monthly in child support, this “portion of the
award cannot stand.”15 Accordingly, we vacate the trial court’s final order of child-
support modification and remand the case for the court to engage in a determination
of Gibson’s income under OCGA § 19-6-15 (f) (4) (B) and entry of an award that is
supported by the evidence.
15 Lockhart v. Lockhart, 361 Ga. App. 499, 502 (1) (a) (863 SE2d 174) (2021); see Duncan, 262 Ga. at 874 (2) (reversing trial court’s child-support award purportedly based on father’s earning capacity rather than gross income because it was not supported by evidence); Lockhart, 361 Ga. App. at 501-02 (1) (a) (vacating trial court’s child support award because the evidence presented at hearing was insufficient to support the court’s determination of father’s present ability to earn imputed income and given that there was no evidence the father otherwise had significant assets or suppressed his income). 15 2. Gibson also maintains the trial court erred by including extraordinary
educational expenses despite the lack of any supporting evidence; adding non-work-
related childcare expenses; and adding a high-income deviation based on imputed
rather than adjusted income. Gibson further claims that—as to educational and work-
related childcare expenses—the trial court failed support its calculations on the proper
worksheets.
OCGA § 19-6-15 (h) (1) (A) provides:
Work related child care costs necessary for the parent’s employment, education, or vocational training that are determined by the court to be appropriate, and that are appropriate to the parents’ financial abilities and to the lifestyle of the child if the parents and child were living together, shall be averaged for a monthly amount and entered on Child Support Schedule D--Additional Expenses under the column of the parent initially paying the expense.
In addition, OCGA § 19-6-15 (i) (2) (I) (i) (II) similarly provides: “If a deviation is
allowed for extraordinary educational expenses, a monthly average of the
extraordinary educational expenses shall be based on evidence of prior or anticipated
expenses and entered on the Child Support Schedule E--Deviations.” Importantly,
the Supreme Court of Georgia has “explained that, when applicable, as it is here,
16 OCGA § 19-6-15 makes certain findings mandatory.”16 And in this matter, it appears
Gibson is correct that the trial court did not enter its calculations for extraordinary
educational expenses or those for work-related childcare on the appropriate
worksheets as required by statute.17 Nonetheless, regardless of whether the trial court
erred in this regard, given our holding in Division 1 supra, vacating the trial court’s
calculation of Gibson’s gross income, the basis for these additional calculations no
longer exists.18 Accordingly, we vacate those determinations as well.
3. Finally, Gibson argues the trial court erred by amending its order in a
subsequent term of court to make the judgment temporary, rather than final, which
required him to pay the new support award during the pendency of the appeal. Once
again, we agree.
16 Johnson v. Ware, 313 Ga. App. 774, 778 (3) (723 SE2d 18) (2012) (punctuation omitted); accord Holloway v. Holloway, 288 Ga. 147, 149 (1) (702 SE2d 132) (2010). 17 See supra OCGA § 19-6-15 (h) (1) (A); OCGA § 19-6-15 (i) (2) (I) (i) (II); note 16 & accompanying text. 18 See supra note 5 & accompanying text. 17 It is well established that “[o]rdinarily, a trial court’s power to amend or modify
its judgment ends with the term in which judgment was entered.”19 But under OCGA
§ 9-11-60 (g), “[c]lerical mistakes in judgments, orders, or other parts of the record
and errors therein arising from oversight or omission may be corrected by the court
at any time of its own initiative or on the motion of any party and after such notice, if
any, as the court orders.” Specifically, clerical errors or omissions include
“irregularities that are apparent from the face of the record or mathematical errors
that are obvious from the judgment.”20 Nevertheless, OCGA § 9-11-60 (g) does not
“provide authority for making substantive changes to an order.”21
19 Ekhorutomwen v. Jamison, 356 Ga. App. 807, 808 (849 SE2d 235) (2020); see Tremble v. Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011) (“A judge’s power to revise, correct, revoke, modify, or vacate a judgment does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court.” (punctuation omitted)). 20 Ekhorutomwen, 356 Ga. App. at 808 (punctuation omitted). 21 Id. at 809; see Porter-Martin v. Martin, 280 Ga. 150, 151 (625 SE2d 743) (2006) (holding that OCGA § 9-11-60 (g) does not apply to substantive matters). 18 In this matter, the trial court’s final child-support order was entered on April
15, 2024, and the amended order, incorporating the consent parenting plan, was
entered on April 19, 2024, both during DeKalb County’s March term of court.22 The
second amended order, providing that the support award would be temporary and
granted at Fowler’s behest, was entered on May 20, 2024, in the May term of court,
after the court learned that Gibson intended to seek an appeal. But this change to the
order, stating “this final order shall also act as a temporary order, which shall bind the
parties pending appeal of the final judgment[,]” did not in any way simply correct a
clerical error. To the contrary, beyond the term of court in which the initial order was
issued, the trial court’s amendment substantively changed the obligations of the
parties—particularly Gibson’s—pending any appeal.23 As a result, the trial court erred
in modifying the April 19, 2024 order, providing that the child-support modification
22 See OCGA § 15-6-3 (37) (terms of court in DeKalb County begin the first Monday in January, March, May, July, September, and November). 23 See supra note 2 & accompanying text. 19 order would be temporary, under the guise of correcting a clerical error.24 Thus, we
also vacate the trial court’s second amended modification order.
Judgment vacated and case remanded with direction. Mercier, C.J., and Land, J.,
concur.
24 See Porter-Martin, 280 Ga. at 151 (holding trial court lacked authority to grant husband’s motion to correct divorce decree beyond term of court by revising conclusive finding of fact in divorce decree as to amount of husband’s income as such was not a clerical error under OCGA § 9-11-60 (g)); Ekhorutomwen, 356 Ga. App. at 809 (explaining trial court’s award of $160 per month in child support was not mere clerical error that court could correct after expiration of term in which judgment was filed); Ivery v. Brown, 307 Ga. App. 732, 734 (706 SE2d 120) (2011) (“Changing the order in a subsequent term of court from dismissal with prejudice to dismissal without prejudice is not a clerical error appearing on the face of the record, but a substantive change that was not authorized under our law”). 20