Under what circumstances will a court impute income to a custodial parent when determining child support?

Georgia's child support laws establish a presumption that the custodial parent will bear the expenses related to the children, assisted by child support paid by the non-custodial parent, with the amount of the child support obligation calculated principally in proportion to the adjusted gross income of each parent. See OCGA § 19–6–15(b) (outlining the calculation of the child support obligation). This statutory scheme reflects “the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.” OCGA § 19–6–15(c)(1). Thus, before a divorce, the parents normally pay the costs of child-rearing from their collective household income; when that household is divided, the parent in whose home the child primarily lives normally pays the child-rearing expenses, with the help of child

[295 Ga. 737]

support from the non-custodial parent that is calculated largely as a pro rata share of the parent's collective income.

[291 Ga. App. 223] The General Assembly revamped Georgia's child support guidelines in several acts passed in 2005 and 2006; the new guidelines took effect January 1, 2007.³ As described by one commentator, "[i]nstead of calculating child support based on the non-custodial parent's income, the new `income shares' model is designed to have the child support divided

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between the parties on a pro rata basis." (Footnote omitted.) Barry B. McGough et al., "Annual Survey of Georgia Law: Domestic Relations," 58 Mercer L. Rev. 133, 143-144(VI) (Fall 2006).⁴

To calculate child support under the new guidelines, OCGA § 19-6-15(b) requires a series of calculations to determine a presumptive amount of child support.⁵ In the next step, "[i]n accordance with [OCGA § 19-6-15(i)], deviations subtracted from or increased to the presumptive amount of child support are applied, if applicable, and if supported by the required findings of fact and application of the best interest of the child standard." OCGA § 19-6-15(b)(8).⁶ As a "[g]eneral principle[ ]" on the subject of deviations from the presumptive amount of child support, the statute provides:

[t]he amount of child support established by this Code section and the presumptive amount of child support are rebuttable and the court or the jury may deviate from the presumptive amount of child support in compliance with this subsection. In deviating from the presumptive amount [291 Ga. App. 224] of child support, primary consideration shall be given to the best interest of the child for whom support under this Code section is being determined.⁷

OCGA § 19-6-15(i)(1)(A). Deviations may, "[i]n the court's or the jury's discretion," include "[p]arenting time[.]" OCGA § 19-6-15(b)(8)(K).⁸ With regard to parenting time specifically, the subsection on deviations provides:

[t]he child support obligation table is based upon expenditures for a child in [an] intact household[ ]. The court may order or the jury may find by special interrogatory a deviation from the presumptive amount of child support when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time or when the child resides with both parents equally.

OCGA § 19-6-15(i)(2)(K)(i).

Thus, the current child support guidelines are premised on a rebuttable presumption

[661 S.E.2d 596]

that each parent should contribute to the financial support of their child in the same proportion as that parent's income relates to the sum of the parents' incomes, without regard to the amount of time the child spends with each parent. The guidelines permit the court or the jury to deviate from the presumptive amount, but only when the child resides with both parents equally or when special circumstances exist and such a deviation serves the best interest of the child. These qualitative determinations — whether special circumstances make the presumptive amount of child support excessive or inadequate and whether deviating from the presumptive amount serves the best interest of [291 Ga. App. 225] the child — are committed to the discretion of the court or jury.⁹ Under such a statutory scheme, we find it appropriate on appeal to review any findings based on disputed facts or witness credibility under the clearly erroneous standard and to review the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.¹⁰

§ 19-6-15. Child support guidelines for determining amount of award; continuation of duty of support; duration of support

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(b) Process of calculating child support. Pursuant to this Code section, the determination of monthly child support shall be calculated as follows:

(1) Determine the monthly gross income of both the custodial parent and the noncustodial parent. Gross income may include imputed income, if applicable. The determination of monthly gross income shall be entered on the Child Support Schedule A - Gross Income;

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§ 19-6-15. Child support guidelines for determining amount of award; continuation of duty of support; duration of support

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(f) Gross income.

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(4) Reliable evidence of income.

(A) Imputed income. When establishing the amount of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parent's income or income potential, gross income for the current year may be imputed. When imputing income, the court or the jury shall take into account the specific circumstances of the parent to the extent known, including such factors as the parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case. If a parent is incarcerated, the court or the jury shall not assume an ability for earning capacity based upon pre-incarceration wages or other employment related income, but income may be imputed based upon the actual income and assets available to such incarcerated parent.

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§ 19-6-15. Child support guidelines for determining amount of award; continuation of duty of support; duration of support

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(f) Gross income.

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(4) Reliable evidence of income.

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(D) Willful or voluntary unemployment or underemployment. In determining whether a parent is willfully or voluntarily unemployed or underemployed, the court or the jury shall ascertain the reasons for the parent's occupational choices and assess the reasonableness of these choices in light of the parent's responsibility to support his or her child and whether such choices benefit the child. A determination of willful or voluntary unemployment or underemployment shall not be limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support but can be based on any intentional choice or act that affects a parent's income. A determination of willful or voluntary unemployment or underemployment shall not be made when an individual's incarceration prevents employment. In determining willful or voluntary unemployment or underemployment, the court or the jury may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills, or training to produce income. Specific factors for the court or the jury to consider when determining willful or voluntary unemployment or underemployment include, but are not limited to:

(i) The parent's past and present employment;

(ii) The parent's education and training;

(iii) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent's responsibility to support his or her child and, to this end, whether the training or education may ultimately benefit the child in the case immediately under consideration by increasing the parent's level of support for that child in the future;

(iv) A parent's ownership of valuable assets and resources, such as an expensive home or automobile, that appear inappropriate or unreasonable for the income claimed by the parent;

(v) The parent's own health and ability to work outside the home; and

(vi) The parent's role as caretaker of a child of that parent, a disabled or seriously ill child of that parent, or a disabled or seriously ill adult child of that parent, or any other disabled or seriously ill relative for whom that parent has assumed the role of caretaker, which eliminates or substantially reduces the parent's ability to work outside the home, and the need of that parent to continue in the role of caretaker in the future. When considering the income potential of a parent whose work experience is limited due to the caretaker role of that parent, the court or the jury shall consider the following factors:

(I) Whether the parent acted in the role of full-time caretaker immediately prior to separation by the married parties or prior to the divorce or annulment of the marriage or dissolution of another relationship in which the parent was a full-time caretaker;

(II) The length of time the parent staying at home has remained out of the work force for this purpose;

(III) The parent's education, training, and ability to work; and

(IV) Whether the parent is caring for a child who is four years of age or younger.

If the court or the jury determines that a parent is willfully or voluntarily unemployed or underemployed, child support shall be calculated based on a determination of earning capacity, as evidenced by educational level or previous work experience. In the absence of any other reliable evidence, income may be imputed to the parent as provided for in subparagraph (f)(4)(A) of this Code section.

A determination of willful and voluntary unemployment or underemployment shall not be made when an individual is activated from the National Guard or other armed forces unit or enlists or is drafted for full-time service in the armed forces of the United States.

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(a) "In Georgia, determining each parent's monthly gross income is the first step that a court must take in calculating child support under our child support guidelines[,]" (punctuation omitted) Cousin v. Tubbs, 353 Ga. App. 873, 880 (3), 840 S.E.2d 85 (2020), and a trial court conducting a bench trial must determine and make a written finding of the monthly gross income of both the custodial and noncustodial parent. See OCGA § 19-6-15(b), (c)(2)(C). Gross income includes "all income from any source, ... whether earned or unearned," including income from self employment. OCGA § 19-6-15 (f)(1) (A)(iii). Pursuant to OCGA § 19-6-15 (f)(1)(B),

[i]ncome from self-employment includes income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a ... limited liability company ... is defined as gross receipts minus ordinary and reasonable expenses required for self-employment or business operations.

Further,

[i]n general, income and expenses from self-employment or operation of a business should be carefully reviewed by the court or the jury to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. Generally, this amount will differ from a

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determination of business income for tax purposes.

OCGA § 9-6-15 (f)(1)(B)(ii).

In addition to the foregoing, "[g]ross income may include imputed income, if applicable." OCGA § 19-6-15(b)(1). Pursuant to OCGA § 19-6-15 (f)(4)(A), gross income may be imputed

if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parent's income or income potential.

Michael also contends that the trial court erred in how it calculated his income for purposes of determining that neither party would receive child support. In the child support worksheet and addendum, which were incorporated by reference into the decree, the trial court attributed $3,480 in monthly salary and wages to Michael even though it was undisputed that he was retired and had no salary and wages. The trial court may have intended to impute income to Michael on the basis of a finding that he was voluntarily unemployed. See OCGA § 19–6–15 (f) (4) (D). If that were the case, however, the trial court should have designated the amount of money that it believed Michael could earn with reasonable effort as "imputed income" and not as "salary and wages." As a result, we must vacate the award of (zero) child support and remand this case for the trial court to reconsider the amount of Michael's income and to redetermine the amount of any child support. See Hendry v. Hendry, 292 Ga. 1, 4 (1), 734 S.E.2d 46 (2012).¹

3. Husband claims that the trial court erred in finding that Wife [290 Ga. 620] “has no income for purpose of computing child support” and imputing to her monthly gross income of only $1,257. The evidence showed that although Wife was able to work, she had no regular employment, was the primary caretaker of the parties' young son, and occasionally earned $11 per hour for working special events at a restaurant. OCGA § 19–6–15(f)(4)(A) provides:

Imputed income. When establishing the amount of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of the parent's income or income potential, gross income for the current year shall be determined by imputing gross income based on a 40 hour workweek at minimum wage.

The trial court did not abuse its discretion in finding that it had no reliable evidence of Wife's income and imputing to her monthly gross income of $1,257 based on a 40–hour workweek at the national minimum wage of $7.25 per hour.