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Wife appealed a final judgment of divorce, contending that, in awarding primary physical custody of the parties' two children to husband, the trial court abused its discretion in failing to consider evidence of alleged family violence perpetrated by husband against her and that the trial court erred by failing to enter written findings of fact explaining its reasons for granting primary physical custody to husband. The court held that the trial court did not fail to consider the evidence of family violence and that the trial court did not abuse its broad discretion in awarding physical custody of the children to husband, with wife having joint legal custody and extensive visitation. The court also held that wife could not complain about the trial court's child support calculations where she specifically asked that court to use her child support worksheet. Accordingly, the judgment was affirmed.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: January 9, 2012
S11F1804. FINKLEA v. FINKLEA.
On April 4, 2011, the trial court entered a final judgment in the divorce
action filed by appellant Leslie Finklea (“Wife”) against appellee David Finklea
(“Husband”). Pursuant to this Court’s former pilot project for divorce cases
(now set forth in Supreme Court Rule 34 (4)), we granted Wife’s application for
discretionary appeal. We now affirm.
1. Wife contends that, in awarding primary physical custody of the
parties’ two children to Husband, the trial court abused its discretion in failing
to consider evidence of alleged family violence perpetrated by Husband against
her, which the court should have considered under OCGA § 19-9-3 (a) (3) (P)
and § 19-9-3 (a) (4) (A)-(D).1 Wife also argues that the trial court erred by
OCGA § 19-9-3 (a) (3) (P) says that in determining the best interest of the child in a
custody dispute between parents, a trial court “may consider any relevant factor, including but not
limited to: . . . (P) Any evidence of family violence or sexual, mental, or physical child abuse or
criminal history of either parent.” OCGA § 19-9-3 (a) (4) says that in child custody cases “in which
the judge has made a finding of family violence,” the judge shall consider certain factors such as “the
failing to enter written findings of fact explaining its reasons for granting
primary physical custody to Husband.
At the final hearing, the parties were the only witnesses, and they each
testified extensively about acts of family violence committed by the other
spouse, which led to multiple police reports filed against each other. In its final
judgment, the trial court said that it was entering the judgment “[a]fter hearing
testimony of the parties and considering all the evidence tendered at trial.”
Neither party asked the court to make written findings of fact supporting its
award of child custody, although the parties had the right to do so. See OCGA
§ 19-9-3 (a) (8) (“If requested by any party on or before the close of evidence
in a contested hearing, the permanent court order awarding child custody shall
set forth specific findings of fact as to the basis for the judge’s decision . . . .”).
See also Gallo v. Kofler, 289 Ga. 355, 357 (711 SE2d 687) (2011) (unless
requested to do so by a party, a trial court is not required to provide written
findings of fact in child custody cases). Under these circumstances, we cannot
conclude that the trial court failed to consider the evidence of family violence
safety and well-being of the child and of the parent who is the victim of family violence,” § 19-9-3
(a) (4) (A).
presented at the final hearing.
Nor can we conclude, after reviewing the record, that the trial court abused
its broad discretion in awarding primary physical custody of the children to
Husband, with Wife having joint legal custody and extensive visitation.
Where[, as here,] the trial court has exercised its discretion and
awarded custody of children to one fit parent over the other fit
parent, this Court will not interfere with that decision unless the
evidence shows the trial court clearly abused its discretion. Where
there is any evidence to support the decision of the trial court, this
Court cannot say there was an abuse of discretion.
Haskell v. Haskell, 286 Ga. 112, 112 (686 SE2d 102) (2009) (bracketed material
in original) (citation omitted).
2. In calculating child support under OCGA § 19-6-15, the trial court
used $2,200 as the amount of Husband’s gross monthly income. Wife contends
that the court erred by failing to add $600 per month in rental income to that
amount. However, at the final hearing, she specifically asked the court to use
her child support worksheet, which lists Husband’s gross income as $2,200, in
determining child support. On appeal, Wife may not complain about the trial
court’s use of the amount she asked it to use in its child support calculations.
See Simmons v. Simmons, 288 Ga. 670, 672 (706 SE2d 456) (2011) (holding
that Husband was barred by the doctrine of induced error from complaining
about the trial court’s use of his wages from a W-2 form in calculating child
support, because the wage amount was “the same as that provided by Husband
in his domestic relations financial affidavit”).
Judgment affirmed. All the Justices concur.