Wheeler v. Akins

761 S.E.2d 383, 327 Ga. App. 830, 2014 WL 2976060, 2014 Ga. App. LEXIS 434
CourtCourt of Appeals of Georgia
DecidedJuly 3, 2014
DocketA14A0075, A14A0076
StatusPublished
Cited by1 cases

This text of 761 S.E.2d 383 (Wheeler v. Akins) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wheeler v. Akins, 761 S.E.2d 383, 327 Ga. App. 830, 2014 WL 2976060, 2014 Ga. App. LEXIS 434 (Ga. Ct. App. 2014).

Opinion

Miller, Judge.

Jennifer Wheeler and William Akins are the parents of M. A., a minor child. In 2012, the trial court granted Akins’s petition for a change of custody under OCGA § 19-9-3, terminated his obligation to pay child support, ordered Wheeler to pay child support, and set visitation. Akins later filed a motion for judgment notwithstanding the verdict (“j.n.o.v.”), arguing that the child support award was not supported by the evidence. The trial court granted Akins’s motion and issued a new order for support and visitation, leading to these appeals.

In Case No. A14A0075, Wheeler appeals from the trial court’s order granting Akins’s motion to set aside a previous order of support and visitation, increasing her child support obligation, decreasing her visitation, and ordering her to pay back child support. Wheeler contends that the trial court erred in setting aside its earlier order and improperly ordered her to pay back child support. In his cross-appeal, in Case No. A14A0076, Akins attacks the same order and contends that the trial court abused its discretion in adjusting Wheeler’s child support obligation based on her duty to support another child.

For the reasons that follow, we conclude that the trial court had the authority to set aside its earlier order, but erred in retroactively modifying Wheeler’s child support obligation. We reverse that portion of the trial court’s order. Accordingly, we affirm in part and reverse in part in Case No. A14A0075. We reverse and remand in Case No. A14A0076 because the trial court failed to make adequate findings to support its child support award.

The current child support guidelines require the trial court to make a series of calculations to determine the presumptive amount of child support. Hamlin v. Ramey, 291 Ga. App. 222, 223 (1) (661 SE2d 593) (2008). To justify a deviation from the presumptive amount of child support, a trial court must make written findings to explain, among other things, how the best interest of the children for whom [831]*831support is being determined will be served by the deviation. Black v. Black, 292 Ga. 691, 697 (4) (a) (740 SE2d 613) (2013). These written findings are mandatory and, without them, this case must be remanded to the trial court for further proceedings. Brogdon v. Brogdon, 290 Ga. 618, 623 (5) (b) (723 SE2d 421) (2012). We review decisions to deviate, or not to deviate, from the presumptive amount of child support for abuse of discretion. Black, supra, 292 Ga. at 697 (4) (a).

Here, the undisputed facts show that M. A. was born in 1997. In 1999, Wheeler, her mother, was awarded primary physical custody. In July2011,attheageofl4,M.A.madean election underOCGA § 19-9-3 to live with Akins, her father. Based on M. A.’s election, Akins petitioned for primary physical custody. Akins also sought to terminate his child support obligation.

After a hearing, the trial court in October 2011 granted Akins’s petition for change of custody, terminated Akins’s child support, and reserved ruling on the question of Wheeler’s child support. Following a subsequent hearing, the trial court issued an order on February 14, 2012, requiring Wheeler to pay Akins $160 per month in child support but delaying her first payment until May 5,2012. The superior court’s order also set out a detailed visitation schedule and awarded Wheeler visitation the first, third, and fourth weekends of every month, with Akins entitled to visitation on the second weekend of the month, as well as the fifth weekend of the month, when applicable.

Akins subsequently filed a motion for j.n.o.v. on February 28, 2012. In his motion, Akins argued that the evidence submitted at the hearing did not support the child support award. More than a year later, onMay21,2013, after holding oral argument on the matter, the trial court granted Akins’s motion for j.n.o.v., and issued a new order increasing Wheeler’s child support obligation to $474 per month. The trial court also found that Wheeler owed back child support in the amount of $2,844 ($474 per month from October 2011 through May 2012) and ordered her to pay that amount in arrearage. Finally, the trial court modified the visitation schedule, granting Wheeler visitation the first and third weekends of the month, and the fifth weekend of the month, when applicable.

Case No. A14A0075

1. In related enumerations of error, Wheeler contends that the trial court erred in granting Akins’s motion for j.n.o.v. Specifically, Wheeler argues that j.n.o.v. was improper because there was no jury verdict, Akins made no motion for a directed verdict, and the trial court had no authority to change the previously entered order on evidentiary grounds.

[832]*832Regardless of the nomenclature, Akins’s motion sought to set aside the trial court’s judgment on the ground that it was not supported by the evidence.1 See Marshall v. State, 229 Ga. 841 (1) (195 SE2d 12) (1972) (substance controls over nomenclature under rules of pleadings).

A “trial judge can grant a motion for new trial if the verdict is contrary to the evidence under OCGA § 5-5-20 or strongly against the weight of the evidence under OCGA § 5-5-21.” (Citation and punctuation omitted.) Moore v. Stewart, 315 Ga. App. 388, 390-391 (3) (727 SE2d 159) (2012). The decision to grant a new trial is reviewed for abuse of discretion. Beasley v. Paul, 223 Ga. App. 706, 706-707 (1) (478 SE2d 899) (1996).

Similarly,

[djuring the term in which a judgment is entered, a trial court has plenary control over it and has the discretion to set aside the judgment for irregularity, or because it was improvidently or inadvertently entered and for the purpose of promoting justice. Atrial court’s discretion in setting aside a judgment will not be disturbed unless manifestly abused. However, a trial court’s discretion to set aside a judgment during the term it was entered is not without limits, and should be exercised for some meritorious reason. In this regard, a trial court is granted the discretion to determine what is a meritorious reason for setting aside one of its judgments, and an appellate court may reverse that discretion only if it is manifestly abused.

(Citations, punctuation and footnotes omitted.) Pope v. Pope, 277 Ga. 333, 334 (588 SE2d 736) (2003). Consequently, although Akins’s motion was styled as a j.n.o.v., the trial court had plenary authority to consider it as a motion for new trial or a motion to set aside the judgment.

2. Wheeler contends the court erred in finding in the 2013 order [833]*833that she owed a child support arrearage. We agree.

[A] permanent child support judgment is res judicata and enforceable until modified, vacated or set aside. Therefore, a court may not change a support obligation retroactively. OCGA § 19-6-17

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Bluebook (online)
761 S.E.2d 383, 327 Ga. App. 830, 2014 WL 2976060, 2014 Ga. App. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-akins-gactapp-2014.