CHILD SUPPORT, DEVIATION, WRITTEN FINDINGS REQUIRED, FRINGE BENEFITS, 19-6-15, 19-6-15 (c)(2)(E), 19-6-15 (f)(1)(C)
A free college tuition benefit provided by an employer is not a “fringe benefit” that counts as income for child support, held the Georgia Court of Appeals, and a trial court must include written findings and conclusions supporting any deviation from the presumptive amount of child support.
Kathleen McGinn fka Noble vs. Stephen Noble
Georgia Court of Appeals No. A18A0617
Appeal from child support order entered by the Juvenile Court of Spalding County
3rd Division Panel Opinion by Presiding Judge Ellington issued 18 May 2018
Judgment Affirmed in part, Reversed in part, Remanded
Read the slip opinion, Noble v. Noble, A18A0617.
Case Summary: Seeking an increase in her child support and a contempt order, Kathleen Noble sued Stephen Noble in Superior Court. Stephen counterclaimed for custody of their 5 children. The case was transferred to the Juvenile Court. Apparently Kathleen remarried and moved to the state of New Hampshire while the case was pending. After a final hearing, the Juvenile Court entered an order awarding Stephen primary physical custody of the 4 younger children and Kathleen, who is now Kathleen McGinn, primary physical custody of their oldest child. The issue of child support was reserved and, after another hearing, a final child support order was entered on 6 July 2017 which provided that Kathleen pay $754 per month in child support to Stephen. This order included in Kathleen’s income a free tuition fringe benefit she receives from her employer, granted Stephen a deviation for extra living expenses for the 4 children now in his custody, did not grant Kathleen a requested visitation travel deviation, and adjusted child support for health insurance premiums Stephen pays but not for premiums Kathleen pays for the oldest child. Kathleen appealed the child support order.
Decision: The panel reversed the juvenile court’s inclusion of Kathleen’s tuition benefit as a “fringe benefit” in computing her monthly income, holding that this tuition benefit “did not significantly reduce [her] living expenses” and was not a benefit that can be called part of “personal living expenses,” as referred to in OCGA §19-6-15 (f)(1)(C). It also reversed the Juvenile Court’s $1,377.00 nonspecific deviation in favor of Stephen, holding that its child support order failed to include the written findings required by OCGA §19-6-15 (c)(2)(E) with respect to any deviation granted. Kathleen’s other arguments were not accepted because the facts in the record did not justify finding error by the Juvenile Court.
Practice Notes: Read this case. Failing to include the written findings required by OCGA §19-6-15 in an order granting a deviation is a costly mistake if appealed, as this case must now go back to the trial court to include these written findings. Also, the panel’s opinion regarding the tuition fringe benefit is an important decision; the panel found no case authority on the issue and based its holding on “common sense.” Practitioners should carefully read footnote 2 to see how the trial court calculated the amount of the benefit.
Research: Noble v. Noble, A18A0617 (2018).
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