Williamson v. Williamson

748 S.E.2d 679, 293 Ga. 721, 2013 Fulton County D. Rep. 3047, 2013 WL 5508554, 2013 Ga. LEXIS 786
CourtSupreme Court of Georgia
DecidedOctober 7, 2013
DocketS13A0953
StatusPublished
Cited by5 cases

This text of 748 S.E.2d 679 (Williamson v. Williamson) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williamson v. Williamson, 748 S.E.2d 679, 293 Ga. 721, 2013 Fulton County D. Rep. 3047, 2013 WL 5508554, 2013 Ga. LEXIS 786 (Ga. 2013).

Opinion

NAHMIAS, Justice.

Appellant Charles Williamson (Father) and appellee Susan Williamson (Mother) were divorced in March 2009. The final divorce decree granted the parties joint custody of their two children. The permanent parenting plan, which was incorporated into the decree, granted Mother 61 percent of the parenting time and Father 39 percent of the parenting time annually. Father was required to pay Mother $1,450 each month for child support.

On March 9, 2011, Father filed a petition to modify child custody, visitation, and child support. After a bench trial, the court issued a final order on the petition on October 15, 2012. The trial court ruled that the parents will continue to have joint legal and physical custody of the children but essentially flipped the division of parenting time [722]*722to give Father 60 percent of the “custodial parenting time” and Mother 40 percent. Based on a monthly gross income of $7,570.63 for Father and $1,300 for Mother and the application of the statutory child support guidelines, see generally OCGA § 19-6-15, .the court found that the presumptive amount of child support paid by Father would be $1,359 and by Mother would be $233. The court then said that the “guidelines would be unjust and inappropriate considering the relative ability of each parent to provide support because of the disparate incomes of the parties,” and that the best interest of the children would be served by a deviation from the presumptive amount to “allow Mother resources to maintain adequate housing and necessities while the children are in her care.” The court found that “a deviation for the increased parenting time of the Father in the amount of $272.00 is warranted” and ordered Father to pay Mother $1,087 ($1,359 minus $272) as monthly child support.

On November 14, 2012, Father filed a motion for reconsideration of the final order, which was denied on December 4, 2012.1 Father filed a timely application to appeal in the Court of Appeals, which properly transferred the application to this Court because this is a “divorce and alimony” case within our jurisdiction. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. Ill (6). We then granted the application under OCGA § 5-6-35 (j) because the order appealed decided child custody and Father was therefore entitled to a direct appeal under OCGA § 5-6-34 (a) (11). See Edge v. Edge, 290 Ga. 551, 552 (722 SE2d 749) (2012).

On appeal, Father does not contest much of the final order, and the unchallenged portions are hereby affirmed. Father contends, however, that the final order makes him the “custodial parent” and Mother the “noncustodial parent” and that the trial court therefore erred in requiring him to pay child support to Mother, because a custodial parent cannot be ordered to pay child support to a noncustodial parent. Father also argues that the court misapplied the child support guidelines by awarding him a parenting time deviation, because such a deviation can be given only to a noncustodial parent. In response, Mother disputes the premise that Father is the custodial parent. She is wrong about that, and Father is wrong about his claim that a custodial parent can never be ordered to pay child support to a noncustodial parent. However, Father’s argument that the trial [723]*723court erred in calculating the child support obligation is well-founded, and we therefore must reverse the child support portion of the final order and remand for child support to be determined correctly.

1. The trial court did not explicitly designate Father or Mother as the “custodial parent” in the final order, but the court was not required to do so. Because the order awarded Father more than 50 percent of custodial parenting time with the children, he is now the “custodial parent” and Mother is the “noncustodial parent” for purposes of applying the child support guidelines.

The guidelines statute defines the term “custodial parent” in OCGA § 19-6-15 (a) (9). See also OCGA § 19-6-15 (a) (14) (defining “noncustodial parent”). The definition looks first and foremost to the amount of time the children spend with each parent. Its first sentence says, “ ‘Custodial parent’ means the parent with whom the child resides more than 50 percent of the time.” Thus, if the children spend more than 50 percent of their time with one parent, that parent is the “custodial parent”; the court need not explicitly state that designation and indeed is given no discretion to make a different designation. Under the final order in this case, the parties’ children will spend 60 percent of their time with Father, so he is the “custodial parent.”

The second sentence of the “custodial parent” definition says, “Where a custodial parent has not been designated or where a child resides with both parents an equal amount of time, the court shall designate the custodial parent as the parent with the lesser support obligation.” Mother argues that this requires the court to designate a custodial parent and, because the court did not do so and she has the lesser support obligation, she must be the custodial parent.2 However, the second sentence of OCGA § 19-6-15 (a) (9) applies only if the custodial parent has not already been determined under the first sentence. In other words, the custodial parent is determined by money (which parent has the lesser child support obligation) only where neither parent has the children “more than 50 percent of the time” — where the parenting time is divided 50-50 or where the children reside for some portion of time with a third party, so that neither parent has a majority of the custody time.3

[724]*724Accordingly, the trial court did not err in failing to explicitly identify Father as the “custodial parent”; the court’s order awarding him 60 percent custodial parenting time made him the custodial parent, and Mother the noncustodial parent, by operation of the statutory definitions.

2. Father contends that the trial court erred in requiring him to pay Mother $1,087 in monthly child support because a custodial parent may not be ordered to pay support to a noncustodial parent. However, this Court held long ago that “a trial court, in the exercise of its discretion, may properly order a custodial parent to pay for the support of minor children while visiting with the non-custodial parent,” where “the best interest of the child requires that money be provided the non-custodial parent to provide for a proper visitation.” James v. James, 246 Ga. 233, 233 (271 SE2d 151) (1980). Father acknowledges James but argues that its holding is no longer valid because that case was decided before the enactment of the current child support guidelines.

It is true that the child support statutes have been substantially amended since James was decided, and the discretion of trial courts to calculate child support is now significantly more constrained.

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Bluebook (online)
748 S.E.2d 679, 293 Ga. 721, 2013 Fulton County D. Rep. 3047, 2013 WL 5508554, 2013 Ga. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williamson-v-williamson-ga-2013.