Justia.com Opinion Summary: Wife and husband divorced and in the final order, the trial court awarded primary custody of the parties' children to husband and ordered wife to pay child support. The court granted wife's application to appeal pursuant to Supreme Court Rule 34(4). The court held that, in light of the guardian ad litem actually testifying at the final hearing and the fact that wife could not show that the trial court inappropriately relied on the guardian's report in any way, the court found any alleged error in the trial court's failure to admit the report into evidence was harmless. The court found no merit to wife's claim that the trial court had no other choice but to order husband to pay temporary child support in the manner she desired, rather than in the manner that it ordered. Further, the record belied wife's assertion that the trial court did not consider the parties' incomes when it made its final child support award. Finally, the court rejected wife's assertion that the trial court failed to make sufficient findings to support its custody and visitation findings. Accordingly, the court affirmed the judgment.
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In the Supreme Court of Georgia
Decided: March 19, 2012
S11F1955. GRESHAM-GREEN v. MAINONES.
MELTON, Justice.
Suzanne Gresham-Green (“Wife”) and Keith Mainones (“Husband”) were
married in 2006 and divorced pursuant to a May 13, 2011 Final Decree. In its
final order, the trial court awarded primary custody of the parties’ children to
Husband and ordered Wife to pay child support. This Court granted Wife’s
application to appeal pursuant to Supreme Court Rule 34 (4), by which this
Court shall grant a timely application from a final judgment and decree of
divorce that is determined by the Court to have possible merit. For the reasons
that follow, we affirm.
1. Wife contends that the trial court erred in relying on the report of a
guardian ad litem that had not been admitted into evidence at the final hearing
when it made its decision to award primary custody of the parties’ children to
Husband. However, the record reveals that the guardian ad litem actually
testified at the final hearing, and that the trial court did not somehow use the
guardian’s report as a substitute for her testimony. See Georgia Uniform
Superior Court Rule 24.9 (6) (Guardian ad litem’s report is not “a substitute for
the GAL's attendance and testimony at the final hearing, unless all parties
otherwise agree”). In fact, the trial court’s final order makes no mention of the
guardian ad litem’s report, and there is no evidence of record with regard to
what extent, if any, the trial court ultimately relied on the guardian’s report in
order to make its final determination. In light of the guardian ad litem actually
testifying at the final hearing and the fact that Wife cannot show that the trial
court inappropriately relied on the guardian’s report in any way, we find any
alleged error in the trial court’s failure to admit the report into evidence to be
harmless.
2. Wife argues that the trial court erred in failing to award her temporary
child support during the time that the parties’ children were in her primary
custody while the divorce proceedings were pending, and that the trial court
further erred by failing to consider the parties’ respective incomes when it
awarded child support to Husband in its final order. We disagree.
In its temporary order, the trial court was authorized to deviate from the
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presumptive amount of child support when it ordered Husband to pay 80% of
the total child care costs and the mortgage on the marital residence1 while Wife
maintained primary physical custody of the children:
If the noncustodial parent is providing shelter, such as paying the
mortgage of the home, or has provided a home at no cost to the
custodial parent in which the child resides, the court or the jury may
allocate such costs or an amount equivalent to such costs by
deviation from the presumptive amount of child support, taking into
consideration the circumstances of the respective parents and the
best interest of the child.
OCGA § 19-6-15 (i) (2) (H). In fact, the evidence of record reveals that the
amount that Husband was ordered to pay in the temporary order actually
exceeded the presumptive amount of child support that he would have otherwise
been required to pay. We find no merit to Wife’s claim that the trial court had
no other choice but to order Husband to pay temporary child support in the
manner that she desired, rather than in the manner that it ordered.
Furthermore, the record belies Wife’s assertion that the trial court did not
consider the parties’ incomes when it made its final child support award. The
parties submitted child support worksheets to the trial court, and the record
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We note that the mortgage was in Wife’s name.
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reveals that the trial court accepted the incomes submitted in the worksheets as
the true representations of the parties’ respective incomes. We find no error.
3. In two enumerations, Wife asserts that the trial court failed to make
sufficient findings to support its custody and visitation awards. Specifically,
Wife contends that the trial court improperly “delegated” to Husband its judicial
duty to make proper findings of fact and conclusions of law by allowing
Husband’s counsel to draft the Final Decree. As an initial matter, there is
nothing improper about a trial court allowing a party to submit a draft order to
the court based on the trial court’s findings at a final divorce hearing.
Furthermore, Wife forfeited her claim that additional findings were required by
failing to affirmatively request that the trial court enter such findings as to
custody. See Finklea v. Finklea, 290 Ga. 357 (1) (720 SE2d 624) (2012); Gallo
v. Kofler, 289 Ga. 355 (2) (711 SE2d 687) (2011); OCGA § 19-9-3 (a) (8).
Judgment affirmed. All the Justices concur.
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