Georgia law allows specific deviations, to be subtracted from or added to the presumptive amount of child support to be paid by a noncustodial parent, for high income, low income, other health related insurance, life insurance, child and dependent care tax credit, travel expenses, alimony, mortgage, permanency plan or foster care plan, extraordinary expenses, and parenting time.(1) The law also provides a catchall category of “nonspecific deviations” which a judge or jury may choose to apply.(2) This article discusses the application of nonspecific deviations in calculating child support obligations.
The statutory guidelines for determining the amount of a child support award provide only limited guidance for the use of nonspecific deviations: “Deviations from the presumptive amount of child support may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.”(3) Although the “better practice” would exclude the factors set forth in the statutory list of specific deviations from inclusion within nonspecific deviations, no hard-and-fast rule precludes a trier of fact from considering specific deviation factors as reasons for nonspecific deviations.(4)
As with specific deviations, the judge/jury must support any nonspecific deviation with written findings that:
…an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined and [stating]: (i) The reasons for the deviation from the presumptive amount of child support; (ii) The amount of child support that would have been required … if the presumptive amount of child support had not been rebutted; and (iii) How, in its determination: (I) Application of the presumptive amount of child support would be unjust or inappropriate; and (II) The best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.(5)
A court’s failure to make the requisite findings, or to support those findings with adequate evidence, will result in reversal of the child support award.(6) In one case, for example, a trial court awarded a nonspecific deviation to reduce a biological father’s support obligation for a child, by taking into account the father’s support obligation to a subsequent child (with another mother) whom he was legally obligated to support. The court awarded the deviation for the stated purpose of ensuring that the father would have the ability to pay all of his obligations and continue to have sufficient funds to visit with the child and provide for the child’s basic needs. The court’s award was reversed on appeal, however, because the record failed to show that the father was paying any support for the subsequent child and the extent of the obligation father might ultimately incur thereby, failed to show father’s ability to pay all of his obligations, and failed to shed light on the pertinent issues whether the presumptive amount of child support was unjust or inappropriate, and whether a deviation therefrom was I the best interest of the child for whom support was being determined.(7)
It has been held that, where the rental value of a house provided to a spouse by his employer-parents, and the utility bills paid by the employer-parents, could not be deemed fringe benefits of employment to be included in the spouse’s monthly gross income, the trial court nonetheless could consider the value of those benefits as grounds for a nonspecific deviation from the presumptive amount of child support due from the spouse.(8)
Another example of a nonspecific deviation can be found in a split parenting case where a husband resided in Alaska with the parties’ older child, while wife resided in Georgia with the younger child. The court granted a nonspecific deviation to husband for his support obligation to the younger child, which reduced husband’s support obligation for that child to zero. The court justified the nonspecific deviation on grounds that the husband was paying for the older child’s living expenses, as well as half her school tuition, and the court wanted to ensure that funds were available for travel and other expenses for both children between Alaska and Georgia.(9)
(1) O.C.G.A. § 19-6-15(b)(8)(A)-(K). (2) O.C.G.A. § 19-6-15(b)(8)(L). (3) O.C.G.A. § 19-6-15(i)(3). (4) Parker v. Parker, 293 Ga. 300, 306, 745 S.E.2d 605 (2013). (5) O.C.G.A. § 19-6-15(i)(1)(B). (6) See Noble v. Noble, 345 Ga.App. 799, 815 S.E.2d 150, 154 (2018). (7) Jackson v. Irvin, 316 Ga.App. 560, 562-563(1), 730 S.E.2d 48 (2012). (8) Scott v. Scott, 297 Ga. 775, 778, 778 S.E.2d 230 (2015). (9) Parker, supra, 293 Ga. at 302-306(2).