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The Supreme Court granted discretionary appeal of the parties' final judgment and divorce decree. After review, the Court affirmed most of the trial court's judgment. The Court found that the divorce decree included a deviation from the statutory child support guidelines without the written findings that are statutorily required to support the deviation. Therefore, the Court reversed that part of the judgment and remanded the case for a redetermination of child support.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: October 15, 2012
S12F0846. WALLS v. WALLS.
This application for discretionary appeal of the parties’ final judgment and
decree of divorce was granted under Supreme Court Rule 34 (4). As explained
below, we affirm most of the trial court’s judgment. However, the divorce
decree includes a deviation from the statutory child support guidelines without
the written findings that are statutorily required to support the deviation. We
therefore must reverse that part of the judgment and remand the case for a
redetermination of child support.
Pamela Walls (Wife) and Todd Walls (Husband) were married in
1997 and have two children. On May 14, 2009, Husband filed a complaint for
divorce, alleging that the marriage was irretrievably broken and that the parties
should have joint legal and physical custody of the children. Wife answered,
seeking primary physical and legal custody of the children, with Husband
having liberal visitation. She also sought child support. Husband later amended
his complaint, adding as a ground for divorce that Wife had engaged in
On March 4, 2011, after a bench trial, the trial court issued a final divorce
The court granted the divorce on the grounds of both Wife’s
uncondoned adultery and that the marriage was irretrievably broken. The decree
ordered that the parties share joint legal custody of the children, awarded
Husband primary custody, and granted Wife liberal visitation rights. The
divorce decree incorporated by reference a child support worksheet, including
Schedule E for deviations. See OCGA § 19-6-15 (c) (4) (“The child support
worksheet and, if there are any deviations, Schedule E shall be attached to the
final court order or judgment . . . .”). Based on the worksheet and Schedule E,
the trial court found that Wife’s presumptive amount of child support was
$640.96 per month, but that a downward deviation of $83.20 was warranted for
extraordinary medical expenses. See OCGA § 19-6-15 (i) (2) (J) (iii). The court
therefore ordered Wife to pay monthly child support of $558.
Wife argues that the trial court erred in granting the divorce on the
ground of adultery, because the evidence at trial showed that Husband
voluntarily condoned her adultery. See OCGA § 19-5-4 (providing that no
divorce shall be granted on the ground of adultery if there has been a voluntary
condonation thereof). However, Wife does not contest the trial court’s granting
of the divorce on the ground that the parties’ marriage was irretrievably broken.
Thus, we need not resolve the merits of Wife’s claim, because even if the trial
court erred in alternatively granting a divorce on the ground of adultery, the
error is not reversible.
At the bench trial, Husband called his sister, Debra Hale, as an
expert witness in custody evaluation. Hale is an attorney who had practiced
family law for 19 years and frequently had served as a guardian ad litem for
children. The trial court ruled that she could testify as an expert but could not
give her opinion as to the ultimate issue of which parent should be granted
primary physical custody of the children.
Wife contends that Hale should not have been allowed to testify as an
expert on child custody issues because she was biased in favor of her brother
and because her testimony was not necessary to help the trial court reach a
determination regarding custody. However, alleged bias on the part of an expert
witness does not render the witness incompetent to testify, but instead goes to
her credibility. See OCGA § 24-9-1 (a) (providing that “[n]o person offered as
a witness shall be excluded by [from testifying] reason of . . . interest”)1; OCGA
§ 24-9-68 (“The state of a witness’s feelings toward the parties and his
relationship to them may always be proved for the consideration of the jury.”)2;
Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 76 (690
SE2d 186) (2009).
Moreover, trial courts have broad discretion in deciding whether to admit
or exclude expert testimony, considering factors such as whether the witness’s
specialized knowledge will be helpful to the trier of fact, and such rulings are
reviewed on appeal only for abuse of discretion. See OCGA § 24-9-67.1 (b)
(providing that an expert witness may testify if certain reliability factors are
satisfied and if the testimony “will assist the trier of fact . . . to understand the
evidence or to determine a fact in issue”)3; Caswell v. Caswell, 285 Ga. 277, 280
(675 SE2d 19) (2009). Our review of the record shows no abuse of discretion
OCGA § 24-6-601 of Georgia’s new Evidence Code, which takes effect on January 1,
2013, says that “[e]xcept as otherwise provided in this chapter, every person is competent to be a
witness,” and no other provision of Chapter 6 of the new Code precludes a witness from testifying
on account of bias.
With one non-substantive change, this provision is carried forward in the new Evidence
Code. See OCGA § 24-6-622 (effective Jan. 1, 2013).
With minor changes, this provision is carried forward in the new Evidence Code. See
OCGA § 24-7-702 (b) (effective Jan. 1, 2013).
in this case, particularly since the trial court, as the trier of fact in the bench trial,
was free to accept the parts of Hale’s testimony that were credible and useful
and to reject the rest. See Smith v. Smith, 281 Ga. 380, 382 (637 SE2d 662)
(2006) (explaining that in a bench trial, “the trial court act[s] as finder of fact as
well as determiner of the law, and [is] free to ascertain for itself the credibility
of the witnesses”).
Wife also contends that the trial court (1) should have precluded Hale
from testifying because she had previously represented her brother in another
divorce case; (2) erred in permitting Hale to testify as to the ultimate issue4; and
(3) erred in permitting Hale to confusingly switch between testifying as a lay
witness and an expert witness. However, Wife failed to raise the latter two
issues at trial and did not raise the first objection until the end of her cross-
Regarding opinion testimony on an “ultimate issue,” OCGA § 24-7-704 of the new
Evidence Code provides:
(a) Except as provided in subsection (b) of this Code section, testimony in the form
of an opinion or inference otherwise admissible shall not be objectionable because
it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of an
accused in a criminal proceeding shall state an opinion or inference as to whether the
accused did or did not have the mental state or condition constituting an element of
the crime charged or of a defense thereto. Such ultimate issues are matters for the
trier of fact alone.
examination of Hale. She therefore waived her right to raise these issues on
appeal. See Leggette v. Leggette, 284 Ga. 432, 432 (668 SE2d 251) (2008). In
any event, during bench trials, the “court is presumed to have separated
admissible evidence from inadmissible evidence and considered only the former
in reaching its judgment.” Watson v. State, 274 Ga. 689, 691 (558 SE2d 704)
(2002). Thus, “[a]bsent a showing that the trial court actually considered
[inadmissable] material . . . , we will not disturb the presumption that the trial
court considered only admissible evidence in reaching its judgment.” Id. 691692. Here, Wife has failed to show that the trial court relied on any testimony
that she now contends was inadmissible.
Wife claims that the trial court erred when it awarded Husband
primary physical custody, because he only prayed for “joint legal and physical
custody” in his complaint.
However, Georgia law gives the trial court
significant discretion to make determinations regarding child custody in divorce
cases and requires the court, in exercising that discretion, “to look to and
determine solely what is for the best interest of the child and what will best
promote the child’s welfare and happiness.” OCGA § 19-9-3 (a) (2). See Todd
v. Todd, 287 Ga. 250, 254 (703 SE2d 597) (2010) (holding that “‘the court
ultimately must decide the custody question based on the best interest of the
child’” (citation omitted)).
In addition, although Husband pled only for joint custody, his counsel told
the court at the start of the trial that the parties “agreed that there would be joint
legal custody, but the issue will be . . . who gets primary physical custody and
final decision-making authority.” Wife did not dispute that those were the
issues to be tried, and review of the record shows that those issues were in fact
the focus of the trial. Husband’s pleadings therefore were deemed amended to
conform to the evidence. See OCGA § 9-11-15 (b) (“When issues not raised by
the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.”); Howington
v. Howington, 281 Ga. 242, 244 (637 SE2d 389) (2006) (holding that although
Husband did not plead for reimbursement of pension benefits, the trial court did
not err in granting Husband relief regarding those benefits because the issue was
litigated without Wife’s objection).
Accordingly, the trial court did not err in deciding whether Husband was
entitled to primary physical custody of the parties’ children.5
Wife argues that the trial court erred in calculating child support by
failing to consider whether to make a parenting time deviation. See OCGA §
19-6-15 (i) (2) (K). However, if a trial court decides not to apply a deviation
from the presumptive amount of child support, its “‘order need not explain how
the court . . . reached that decision.’” Rumley-Miawama v. Miawama, 284 Ga.
811, 812 (671 SE2d 827) (2009) (citation omitted). Thus, the fact that the trial
court’s order does not discuss a parenting time deviation does not support
Wife’s assertion that the court failed to consider that particular deviation, and
indeed Wife points to no discussion on the record that would support the
conclusion that the court failed to consider it.
Wife contends that the trial court erred in deviating from the
presumptive amount of child support calculated under the child support
guidelines without including any findings stating why the deviation was
appropriate. As Husband concedes, Wife is correct on this point.
Where a deviation is determined to apply and a factfinder deviates
We note that the trial court divided final decision-making authority between the parties,
giving Wife final authority “on major medical and educational issues” and Husband final authority
“on religious issues and choice of extra-curricular activities.”
from the presumptive amount of child support, the order must
explain the reasons for the deviations, provide the amount of child
support that would have been required if no deviation had been
applied, and state how application of the presumptive amount of
child support would be unjust or inappropriate and how the best
interest of the children for whom support is being determined will
be served by the deviation. OCGA § 19-6-15 (c) (2) (E) and (I) (1)
(B). In addition, the order must include a finding that states how
the court’s or jury’s application of the child support guidelines
would be unjust or inappropriate considering the relative ability of
each parent to provide support. OCGA § 19-6-15 (c) (2) (E) (iii).
Holloway v. Holloway, 288 Ga. 147, 149 (702 SE2d 132) (2010) (citation
These express findings in the trial court’s order are “mandatory to ensure
that the best interests of the children [are] protected,” id., and “when any of the
required findings are omitted, we have no choice but to ‘reverse the trial court’s
judgment and remand th[e] case to the trial court for further proceedings.’”
Brogdon v. Brogdon, 290 Ga. 618, 623 (723 SE2d 421) (2012) (quoting
Holloway, 288 Ga. at 149, and citing additional cases in which this Court has
reversed child support awards for failing to include the findings necessary for
a deviation). Because the findings are designed to protect the interests of the
child, not the divorcing spouses, reversal is required when findings are not made
“even when the amount of the deviation could be characterized as de minimis,”
Brogdon, 290 Ga. at 624, and even where the deviation favors the party
complaining about it, see Holloway, 288 Ga. 148-149 (reversing and remanding
when the deviation resulted in a child support amount only $18 less than the
presumptive amount and favored the appellant wife).
The trial court here ordered an $83.20 deviation from the presumptive
amount of child support for extraordinary medical expenses. See OCGA § 19-615 (i) (2) (J) (iii). The divorce decree states that
Schedule E of the Child Support Worksheet, docketed separately
but simultaneously herewith, explains the reasons for the deviation,
how the application of the guidelines would be unjust or
inappropriate considering the relative ability of each parent to
provide support, and how the best interest of the children who are
subject to this child support determination is served by deviation
from the presumptive amount of child support.
However, the spaces on Schedule E for those findings to be made are blank, and
the required findings do not appear anywhere else in the court’s order or
incorporated attachments. We therefore must reverse this part of the trial court’s
judgment and remand the case for redetermination of child support, with any
deviations supported by appropriate written findings.
Judgment affirmed in part and reversed in part, and case remanded with
direction. All the Justices concur.