Franklin v. Franklin
Franklin v. Franklin
Opinion of the Court
Elisha Franklin (“Wife”) and Elijah Franklin (“Husband”) were divorced pursuant to a June 3, 2011, Final Decree. The parties have three minor children together, and the trial court awarded primary
1. Wife contends that the trial court erred in determining that her gross monthly income was $8,833.33 for the purpose of determining her child support obligations. We agree.
“In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.” (Citations and punctuation omitted.) Frazier v. Frazier, 280 Ga. 687, 690 (4) (631 SE2d 666) (2006). “The standard by which findings of fact are reviewed is the ‘any evidence’ rule, under which a finding by the trial court supported by any evidence must be upheld.” (Citation omitted.) Southerland v. Southerland, 278 Ga. 188 (1) (598 SE2d 442) (2004).
Q: And you make approximately a hundred six thousand a year?
A: No. I make 4500 a month.
Husband’s counsel then goes on to refer to $106,200 and $106,800 figures that appear on Line 7 of Wife’s Schedule SE Self-Employment Tax worksheets of IRS form 1040 from 2009 and 2010. However, Wife’s testimony, and the forms themselves, make clear that those figures have nothing to do with Wife’s annual income:
Q: Okay. [Line] Number 7 [on the Schedule SE Self-Employment Tax worksheet from 2010] says it’s a hundred and six thousand.
Wife then reads directly from the document itself, which clarifies that the figure represents, not income, but the maximum “amount of combined wages and self-employment earnings subject to Social Security tax[, which is] the 6.2 percent portion of the 7.65 percent railroad retirement. Tier 1 tax for 2010, [$106,800].” Similarly, Wife’s testimony relating to her 2009 Schedule SE Self-Employment Tax worksheet, and the worksheet itself, revealed that the $106,200 figure that appeared on Line 7 of that form represented the maximum “amount of combined wages and self-employment earnings [that would be] subject to Social Security tax” had she actually earned that amount. Again, however, none of Wife’s testimony showed that she ever earned that amount.
Moreover, the documentary evidence relating to Wife’s gross income also revealed that she never earned the $106,000 that would have been subject to Social Security tax. Wife’s income tax returns showed that her average annual gross income for 2009 and 2010 from her two businesses was $13,568.50, not $106,000. Even without taking Wife’s reported business expenses into account for each of
Furthermore, there was no evidence presented to show that Wife could have been earning more money or that she was deliberately suppressing or hiding any income. In short, because there is no evidence in the record to support the trial court’s conclusion that Wife’s income could have been $8,833.33 per month, we must reverse the trial court’s finding on this issue and reverse its ruling with respect to the child support award that was based on this erroneous finding.
2. Wife next contends that the trial court erred by granting the parties a divorce through its June 3, 2011 Final Decree without having first resolved all of the issues relating to the division of the parties’ marital property.
The record reveals that, at the final divorce hearing, Husband’s counsel affirmatively represented to the court that the only issues that needed to be resolved at the final hearing were custody and child support. See Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010) (“Attorneys are officers of the court, and their statements in their place, if not objected to, serve the same function as evidence”) (citation and punctuation omitted). Wife made no objection to this representation, and cannot now be heard to complain that the trial court erred by concluding in its final order that there was no need for the court to make a division of marital property because the “parties ha[d] already made a division as to all marital property.” See id. at 149 (2).
3. Lastly, Wife claims that the trial court erred by finding her in contempt for failing to pay the child support that had accrued during
OCGA § 9-11-62 (b) states that “the filing of a motion for a new trial . . . shall act as supersedeas unless otherwise ordered hy the court.” (Emphasis supplied.) Here, the trial court specifically stated in the Final Decree:
In the event of an appeal of this order, the provisions of this order shall constitute a new temporary order (superseding all prior temporary or final relief to the contrary) during the pendency of such appeal.
By specifying that a new temporary order would take effect in the event of an appeal, the trial court properly ensured that Wife’s obligation to pay child support would remain in force and effect even if Wife challenged the Final Decree. See, e.g., Walker v. Walker, 239 Ga. 175, 176 (236 SE2d 263) (1977) (temporary order “binds the parties pending decision and appeal of the final judgment” and “is enforceable through contempt proceedings pending review of the divorce judgment”). We find that the trial court retained the authority to hold Wife in contempt for failing to meet her child support obligations as they existed in the temporary order while she challenged the trial court’s Final Decree.
Judgment affirmed in part and reversed in part, and case remanded with direction.
The parties represented that the only issues to he resolved at the final hearing were custody and child support.
We note that this ruling is based solely on the evidence that was presented to the trial court at the final divorce hearing, and not based on any additional evidence that Wife presented to the trial court at the motion for new trial hearing, as a party “cannot rely on evidence presented after trial to show that the trial court erred in [making] a decision the court had to make based on the evidence it had at that time.” (Emphasis in original.) Teasley v. State, 293 Ga. 758, 763 (3) (b) (749 SE2d 710) (2013).
Wife specifically does not challenge on appeal the trial court’s ruling on Husband’s Motion for Disposition of Real Property, in which the trial court ordered the parties, after the entry of the Final Decree, to sell the marital residence and divide the proceeds from the sale equally between them based on a prior agreement that the parties had purportedly reached.
Reference
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- FRANKLIN v. FRANKLIN
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