Tuesday, November 6, 2012

The Supreme Court affirmed the grant of the wife's motion for an upward modification of child support. The court held that res judicata did not preclude considerations of the motion and the trial court did not abuse its discretion in finding a substantial change in her husband's income and financial status. The court held that the same evidence support the trial court's deviation from the presumptive amount child support based on a parent's financial ability to provide for private school education. The court also held that the trial court was authorized to modify the per capita award into a group award, did not error in excluding from evidence the privilege testimony of a licensed psychologist who counseled the parties and their children, and did not err in denying the husband's request for attorney fees. Appellant Richard Odom (husband) and appellee Sherri Odom were divorced pursuant to a 2007 final divorce decree. The decree which incorporated the party settlement agreement, awarded wife primary custody the party's 3 minor children and ordered husband to pay child support in the amount of 2065 per month. The decree also required husband to pay private school tuition for the 2008 2009 academic year him and provided that he shall not be responsible for any expense for private school other then set out in the parties settlement agreement. The trial court entered an order denying husband's motions and granting wife's motion for an upward modification of child support. The court determined there been a substantial change in husband's income and financial status sufficient to warrant an increase in child support and after conducting the calculations required for determining child support under the child support guidelines, ordered an increase in husband's monthly child support to cover the expense of private school for the children. See OCGA 19-6-15 B. The trial court deviated from the presumptive child support award based on its conclusion that the presumptive award would be unjust and/or inappropriate because the educational needs of the children of the parties cannot be met with an award of the presumptive amount. 19-6-15 i.

Husband contends the trial court erred by modifying his child support obligation because modification was precluded under the doctrine of res judicata and because there is insufficient evidence of a change in circumstances to justify a modification. The doctrine of res judicata provides that judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause where the judgment was rendered until the judgment is reversed or set aside. OCGA 9-12-40 res judicata thus prevents the relitigation of all claims which is ordered been adjudicated, or which would've been adjudicated, between identical parties or their privies and identical causes of action. Walter v. Greene County Hospital Authority 265 Ga. 864 1995. In action for modification of child support based on a change in income financial status of the needs of the child is not identical to the original divorce action, and therefore res judicata does not prevent a former spouse from seeking modification of child support. See Yarbrough v. Yarbrough 244 Ga. 313 (1979) . McGuire v. McGuire  228 Ga 782 (1972) purpose and creation of a statutory right to modify decree as to permanent alimony was to remedy the evil so as to allow by statute the modification of final decrees in Georgia courts. See also Jarrett v. Jarrett 259 Georgia 560 1989 permanent child support judgment is res judicata and enforceable, modified or vacated or set aside. Accordingly res judicata did not preclude the trial court from considering wife's petition to modify child support. With regard to merit to wife's motion we find no abuse of the trial court's discretion. Under Georgia law a custodial parent may seek modification of the noncustodial parent's child support obligation based on change in income or financial status of either former spouse or in the needs of the child. OCGA 19-6-15 K, 19-6-19a. Wife presented evidence that husband's gross monthly income increased from 8898 to 10,700. This happened during the period between entry of the final divorce decree and the filing of her petition for modification. In addition there was evidence that husband's net worth had increased to almost $3 million. This evidence supports the trial court's finding of a substantial change in income and financial status sufficient to authorize modification of the child support award see Rowland or the Pendleton 231 Ga. 16 (1973). 10% change in income sufficient to authorize modification and support. See also Frantz v. Frantz 268 Ga. 465 (1997), trial court sits as the finder of fact in determination of income. The same evidence supports the trial court's deviation from the presumptive amount of child support based on a parent's financial ability to provide for private school education. See OCGA 19-6-15 I authorize and deviation from presumptive child support amount based on extraordinary educational expenses appropriate to parents financial abilities and the lifestyle of the child if parents and child were living together. Contrary to husband's arguments were change in income or financial status sufficient to warrant a modification in the amount of child support payable on a per capita basis has been shown, the court is authorized to modify the per capita award into a group award. See Van Dyke v. Van Dyke 263 Ga. 161 (1993), a court may modification action to modify group award into a per capita award. There was no error in the trial court's decision to exclude from evidence the testimony of a licensed psychologist. The counselor had counseled the parties and the children regarding family issues. Communications between us treating psychologist and patient are privileged under OCGA 24-9-21 and 43-39-16. Communications do not lose their privileged status because patients may have been treated jointly or because they were referred by guardian ad litem . See Gottschalk v. Gottschalk 311 Ga. App. 304 (2011) communications with psychologist recommended by guardian ad litem privilege under OCGA 24-9-21. Crucial issue is not whether interaction with mental health worker was voluntary or involuntary but whether involved or contemplated treatment. Daniel ROZ I NSK I G code 205 Ga. App. 731 (1992) privilege not waived by seeking joint treatment. In this case the husband's child support obligation was increased from 2065 per month to 5434 per month. If you need a Paulding County attorney contact the Howard Law Group today.

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