Willis II v. Willis, S10F1357

*All courts mentioned are at the state level.

• The parties’ appeals from the entry of a judgment and decree of divorce were before the Court by way of the pilot project.
• The trial court awarded the parties shared joint legal and physical custody of the sole child born of the marriage, with the parties exercising physical custody on alternate weeks.
• Solely for purposes of calculating child support, the court designated Husband as the noncustodial parent and found his monthly income to be $4,166.00, and Wife’s monthly income to be $2,333.00. After noting Wife was paying monthly health insurance premiums of $208.00, the trial court ordered Husband to pay monthly child support of $961.00 to Wife and to divide evenly with Wife all uninsured medical expenses.
• The final decree also provided that Wife could request hair follicles from Husband four times a year in order to test for illegal substances.
• On appeal, Husband contended the trial court abused its discretion and unjustly enriched Wife when it did not make a deviation in the presumptive child support on account of the equal division of child custody.
• The trial court set out in its order; however, in order to grant any deviation it must find the application of the presumptive amount of child support unjust or inappropriate, and that the best interest of the child would be served by a deviation. The trial court went on to state that it did not make such findings. As such, the Supreme Court held that the trial court did not abuse its discretion in declining to make a deviation to the presumptive amount of child support.
• Husband also contended that the trial court’s failure to require Wife to pay child support while in Husband’s custody deprived the child of support and unjustly enriched Wife. The Supreme Court explained that while shared custody is a factor that may be considered to modify presumptive child support, it is within the trial court’s discretion to do so, and here the trial court did not err when it expressly declined to do so after determining it could not make the necessary findings.
• Finally, Husband claimed that the trial court erred when it authorized drug testing of Husband without any evidence of current or recent drug usage by Husband. However, Husband’s testimony that he had not used drugs in the ten months preceding the hearing was not controlling as there was evidence that he had ingested drugs during the child’s lifetime. As such, the trial court did not abuse its discretion.
• In Wife’s appeal (Case No. S10F1358), she asserted the trial court’s award of shared joint physical custody was contrary to law and was not in the child’s best interest. However, the trial court’s decision was supported by the evidence that showed the child had a good relationship with each parent, and that each parent had adequate housing for the child and could provide what the child needed.
• Wife asserted 34 other enumerations of error, approximately half of which were not filed timely. As to the others, the Supreme Court either determined that the trial court did not abuse its discretion or that there was a lack of foundation or evidence.

Attorneys:

• G. Clyde Dekle III, for Carl J. Willis, II
• Kimberly S. Willis proceeded pro se

Trial Court:

Fulton Superior Court; Judge Cynthia D. Wright