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We granted this application for discretionary appeal under Supreme Court Rule 34 (4), by which we grant every “application for leave to appeal a judgment and decree of divorce that is final under OCGA § 5-6-34 (a) (1) and timely under OCGA § 5-6-35 (d) and is determined to have possible merit by a majority vote of the Court.” As explained below, the final child supportorder issued by the trial court includes a specific deviation for extraordinary educational expenses, but the court failed to make the statutorily required written findings necessary tosupport the deviation. We therefore must reverse the judgment in part and remand the case for a redetermination of the final child support order, with any extraordinary educational expenses deviation to be based on proper written findings. Husband’s remaining challenges lack merit, and so we affirm the remainder of the trial court’s judgment.
Viewed in the light most favorable to the trial court’s rulings, the evidence showed as follows. On November 11, 2000, Joshua P. Brogdon (Husband) and Tawnya S. Brogdon (Wife) married. They later had a child. On July 9, 2009, Husband filed for divorce. On August 3, 2010, after a two-day bench trial, the court entered a final judgment and decree of divorce. The divorce decree incorporated by reference an attached Child Support Addendum, which incorporated by reference and attached the statutorily required Child Support Worksheet andChild Support Schedule E – Deviation (Special Circumstances). See OCGA § 19-6-15 (c) (4) (“The child support worksheet and, if there are any deviations, Schedule E shall be attached to the final court order or judgment . . . .”).
The divorce decree awarded the parties joint legal custody of their five-year-old son, with Wife having primary physical custody. Regarding child support, the trial court rejected Husband’s claims about his sources of income and monthly gross income of $2,916.67, instead finding that he had monthly gross income of $12,000. The court found no reliable evidence of Wife’s income and imputed to her monthly gross income of $1,257. After performing the calculations reflected on the Child Support Worksheet and Schedule E, the court ordered Husband to pay Wife monthly child support of $1,816.
Regarding equitable division, the trial court found that, during the marriage, the parties acquired partial ownership interests in two limited liability real estate holding companies worth $120,000 and $22,500, respectively, and a $50,000 interest in a residential repair partnership. The divorce decree awarded Husband these business interests but ordered him to pay Wife half their value, $96,250, in monthly installments of $2,000. Husband was also required to execute the general security agreement and collateral pledge agreement attached to the decree, along with any other documents necessary to perfect Wife’s security interest in the $96,250 award. The court divided other marital property between the parties.
On May 11, 2011, the trial court entered an order granting in part and denying in part Husband’s motion for reconsideration and modification of the divorce decree. The court also entered an order requiring Husband to pay to Wife’s attorney a total of $20,917.10 in attorney fees and costs in monthly installments of $750. On July 6, 2011, we granted Husband’s application for discretionary appeal of the divorce decree and attorney fees order under our Rule 34 (4).
Husband contends that the trial court erred in finding that he had monthly gross income of $12,000. However, the evidence showed that Husband frequently made large cash withdrawals, had recently made large purchases, and used his business account to pay a substantial amount of his personal expenses averaging $12,079.05 per month. The evidence also showed that Husband and his girlfriend attempted to fabricate a false profit and loss statement for his sole proprietorship that substantially understated his actual earnings. Thus, there is evidence supporting the trial court’s finding that Husband had monthly gross income of $12,000. See Alejandro v. Alejandro, 282 Ga. 453, 453 (651 SE2d 62) (2007) (“The trial court’s factual findings [in a divorce case] will be upheld if there is any evidence to supportthem.”); Dyals v. Dyals, 281 Ga. 894, 895 (644 SE2d 138) (2007) (finding no reversible error where some evidence supports the factfinder’s determination of gross income).
Husband claims that the trial court erred in finding that Wife “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.
Husband asserts that the trial court improperly attributed 100% of the basic child support obligation” to him instead of calculating his pro rata share of the obligation as required by OCGA § 19-6-15 (b). This assertion is based on the following passage in the divorce decree: “The basic child support obligation for the support and maintenance of the minor child of the parties is $1,816.00. . . . The Court assigns 100 percent of the child support obligation to [Husband] . . . .” Read in isolation, this language might suggest an error in the court’s calculation of the final child support amount for which Husband is responsible. See OCGA § 19-6-15 (b) (5) (“Calculate the pro rata share of the basic child support obligation for the custodial parent and the noncustodial parent by dividing the combined adjusted income into each parent’s adjusted income to arrive at each parent’s pro rata percentage of the basicchild support obligation.”).
However, we read the divorce decree as a whole, including the attachments incorporated by reference. The Child Support Worksheet correctly stated that the parties’ “basic child support obligation” was $1,517 based on their monthly combined adjusted income of $13,257 and one child. See OCGA § 19-6-15 (o) (listing $1,517 as the basic child support obligation for one child and a monthly combined adjusted income of $13,250). The worksheet then listed $1,816 as the “final child support amount” due from Husband each month after applying the rest of the statutorily required steps for calculating child support, see § 19-6-15 (b) (5) – (9), which included calculation of Husband’s pro rata share of the basic child support obligation, see § 19-6-15 (b) (5).
The Child Support Addendum says much the same thing as the main body of the decree without using the term “basic child support obligation”: “Child Support Amount – The Father shall pay to the Mother, for the support of the minor children [sic], the sum of 1,816.00 Dollars ($1,816.00) per month, beginning on June 1, 2010.” Moreover, the Child Support Addendum and the Child Support Worksheet show that the court did prorate Husband’s responsibility for the basic child support obligation before proceeding through the rest of the steps in the statutory calculation to arrive at the order requiring Husband to pay Wife $1,816 monthly for child support.
While “basic child support obligation” is a term of art in the context of the child support guidelines, see OCGA § 19-6-15 (a) (3), we conclude that the trial court simply misused the term in the one passage relied upon by Husband and this mistake did not affect the child support calculations or award. Accordingly, Husband has failed to show reversible error.
OCGA § 19-6-15 (i) (2) lists 11 situations that arise with some frequency in child support cases and that may, in a particular case, warrant a “specific deviation” from the presumptive amount of child support calculated under the statutory guidelines. Husband argues that the trial court erred by including specific deviations for low income and extraordinary educational expenses without the statutorily required written findings and by not including a specific deviation for his payment of all extracurricular expenses for the parties’ son.
- Specific deviation for low income. The divorce decree is clear that Husband was ordered to pay Wife $1,816 monthly for child support, but it contains some errant statements. For example, the decree states that the court “finds no deviation on the child supportschedule,” but the incorporated Child Support Addendum states, “It has been determined that one or more of the Deviations allowed under OCGA § 19-6-15 applies in this case, as shown by the attached Schedule E.” In addition, the Child Support Worksheet shows a specific deviation of $452.60 for each parent (downward for Wife; upward for Husband), and by “Deviation type(s) used,” it says, “Extraordinary Educational Expenses.” Husband contends that the final child support order (here, the divorce decree and attachments) also reflects a specific deviation based on Wife’s low income. This argument is both legally and factually unsound.
The specific deviation for “Low Income” authorized by § 19-6-15- (2) (B) is based on the noncustodial parent’s inability to pay the presumptive child support amount due to low income. See, e.g., § 19-6-15 (i) (2) (B) (i) (“If the noncustodial parent requests a low-income deviation . . . .”),
- (“In considering a noncustodial parent’s request for a low-income deviation . . . .”).
There is no provision for a specific deviation based on the low income of a custodial parent like Wife. See generally § 19-6-15 (i) (2) (B) (i) – (vii). Moreover, Schedule E contains a section addressing the specific deviation for low income, and it was left blank, indicating that the trial court found this specific deviation inapplicable. Because there was no deviation for low income, written findings regarding that issue were not required. See Rumley-Miawama v. Miawama, 284 Ga. 811, 812(671 SE2d 827) (2009) (noting that findings are required only when applying a specific deviation, not when denying a deviation).
- Specific deviation for extraordinary educational expenses.
The guidelines statute discusses a specific deviation for three categories of “Extraordinary Expenses” – extraordinary educational expenses, special expenses incurred for child rearing, and extraordinary medical expenses. See § 19-6-15 (i) (2) (J) (i) – (iii).1 The Child SupportWorksheet and Schedule E (and the final amount in the divorce decree) reflect a specific deviation of $452.60 for thechild’s extraordinary educational expenses. Husband argues that the trial court committed reversible error by failing to make the written findings necessary to support this deviation. We agree.
OCGA § 19-6-15 (i) (1) (A) states that “[t]he amount of child support established by this Code section and the presumptive amount of child support are rebuttable” and authorizes a court to “deviate from the presumptive amount of child support in compliance with this subsection.” (Emphasis added.) If the court finds that a deviation is applicable, “the court . . . shall make written findings . . . that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child.” § 19-6-15 (i) (1) (B) (emphasis added). Accord § 19-6-15 (c) (2) (E) (“In the final judgment or decree in a divorcecase in which there are minor children, . . . the court shall . . . include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable . . . .”).
In addition, the trial court’s final judgment must state:
- The reasons for the deviation from the presumptive amount of child support;
- The amount of child support that would have been required under this Code section if the presumptive amount of child support had not been rebutted; and
- 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 childsupport.
§ 19-6-15 (i) (1) (B) (i) – (iii) (II). Earlier in the guidelines statute, subsection (c) recites this list of required findings with slightly different wording. Subsection (c) does not include subsection (i)’s requirement of a finding “that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child,” but it adds another point, stating that the court’s finding that application of the presumptive amount of child support would be unjust or inappropriate must be made “considering the relative ability of each parent to providesupport.” § 19-6-15 (c) (2) (E) (iii).
Since the revised child support guidelines took effect in July 2008, this Court has repeatedly emphasized the statute’s clear directive that these written findings must be included in the final child support order if a deviation is made. We have described the written findings as “mandatory” and held that, when any of the required findings are omitted, we have no choice but to “reverse the trial court’s judgment and remand th[e] case to the trial court for further proceedings.” Holloway v. Holloway, 288 Ga. 147, 149 (702 SE2d 132) (2010). Accord Stowell v. Huguenard, 288 Ga. 628, 632 (706 SE2d 419) (2011) (“If a trial court believes that such a provision [changing the presumptive amount] is necessary to arrive at a fair child supportamount, then it must treat it as a deviation, enter it on the Child Support Schedule E – Deviations section of the child support worksheet, and support it with ‘the required findings of fact and application of the best interest of the child standard.’ OCGA § 19-6-15 (b) (8).”);Turner v. Turner, 285 Ga. 866, 867 (684 SE2d 596) (2009) (“Because the court in this case applied a discretionary parenting time deviation from the presumptive amount of child supportbut failed to make all of the findings required under § 19-6-15 (c) (2) (E) and (i) (1) (B), we reverse the trial court’s final judgment and remand this case to the trial court for further proceedings consistent with this opinion.”).
We have reversed child support orders even when we presumed that the evidence supported the trial court’s actions because there was no transcript of the proceedings, seeSpurlock v. Dept. of Human Res., 286 Ga. 512, 515 (690 SE2d 378) (2010) (“‘Even presuming the evidence supported the trial court’s actions, we must first have the required findings of fact for review so that we know that the court considered the correct factors in exercising its discretion.”), and even when the amount of the deviation could be characterized as de minimis, see Holloway, 288 Ga. at 148-149 (reversing and remanding where the final child supportorder required payments of only $18 less than the presumptive amount of $1,018, because the trial court did not include the written findings necessary to support the deviation).
Here, the Child Support Addendum contained written findings that “one or more of the Deviations allowed under OCGA § 19-6-15 applies in this case” and that “[t]he Presumptive Amount of Child Support that would have been required under OCGA § 19-6-15 if the deviations [sic] had not been applied is $1,363.71 per month,” thereby satisfying § 19-6-15 (c) (2) (E) (ii) and (i) (1) (B) (ii). However, there is no written finding that “an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child.” OCGA § 19-6-15 (i) (1) (B).
In addition, the Child Support Addendum says that the attached Schedule E “explains the reasons for the deviation,” as well as “how the application of the guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support” and “how the best interest of the children who are subject to this child support determination is served by deviation from the presumptive amount of child support.” Such explanations would satisfy § 19-6-15 (c) (2) (E) (i) and (iii) and (i) (1) (B) (i) and (iii) (I) and (II). However, the trial court left the spaces provided for this information on Schedule E blank, even though the caption above those spaces plainly states: “Important Requirement About Deviations – No Deviations are permitted under the law unless all three questions below . . . have been answered.”
Contrary to the claim made by Wife’s counsel at oral argument, the missing findings also do not appear in the trial court’s order on Husband’s motion for reconsideration and modification of the divorce decree. In that order, the court explained the evidentiary basis for including $500 per month as the cost for private schooling and said that “the Court did receive evidence as to private school tuition and does find it as an appropriate inclusion in the Child Support Addendum.” But the order does not include the other findings required by § 19-6-15 (c) (2) (E) and (i) (1) (B).
Accordingly, the child support order does not comply with the statute and does not provide the findings needed to ensure that the application of the extraordinary educational expenses deviation was appropriate. “[A] lack of mandatory written findings overcomes the presumption of regularity,” and “even presuming the evidence supported the trial court’s actions, we must first have the required findings of fact for review so that we know that the court considered the correct factors in exercising its discretion.” Spurlock, 286 Ga. at 515 (citations and internal quotation marks omitted). We therefore must reverse the final judgment in part and remand for proceedings consistent with this opinion.
No specific deviation for extracurricular expenses. The Child Support Addendum states, “The Father shall pay 100% of extracurricular expenses as he has the final decision making authority in extracurricular activities for the minor child.” Husband claims that this directive entitled him to a specific deviation for “Extraordinary Expenses” under the category of “special expenses incurred for child raising.” OCGA § 19-6-15 (i) (2) (J) (ii). The statute explains the purpose and mechanics of this type of deviation as follows:
Special expenses incurred for child rearing, including, but not limited to, quantifiable expense variations related to the food, clothing, and hygiene costs of children at different age levels, may be a basis for a deviation from the presumptive amount ofchild support. Such expenses include, but are not limited to, summer camp; music or art lessons; travel; school sponsored extracurricular activities, such as band, clubs, and athletics; and other activities intended to enhance the athletic, social, or cultural development of a child but not otherwise required to be used in calculating the presumptive amount of child support as are health insurance premiums and work related child care costs. A portion of the basic child support obligation is intended to cover average amounts of special expenses incurred in the rearing of achild. In order to determine if a deviation for special expenses is warranted, the court or the jury shall consider the full amount of the special expenses as described in this division; and when these special expenses exceed 7 percent of the basicchild support obligation, then the additional amount of special expenses shall be considered as a deviation to cover the full amount of the special expenses.
Husband claims the trial court erred in ordering him to pay for the child’s extracurricular expenses on top of the base amount provided in the basic child support obligation without including a corresponding specific deviation in the calculation of the final child support order. See Turner, 285 Ga. at 867-868 (reversing portion of divorce decree that required a husband to pay two-thirds of the children’s extracurricular activities expenses as a deviation not supported by the required written findings). However, when this issue came up at trial, Husband’s counsel, after noting that a deviation might be required, told the court, “Since Mr. Brodgon is going to have the primary decision making authority as to extracurricular activities, he’ll pay for those. We’ll just agree to pay for those, since he’s responsible.” In its order denying modification of this portion of the divorce decree, the trial court noted, “At the trial of the case, the Plaintiff stipulated that he would be responsible for and pay the child’s extracurricular activity cost.”
Having urged the trial court to enter this component of the divorce decree, Husband will not be heard to complain about it on appeal, see Finklea v. Finklea, ___ Ga. ___, ___ (___ SE2d ___) (Case No. S11F1804, decided Jan. 9, 2012, slip op. at 3-4), at least where, as here, Husband’s request increased the overall support available to the child. CompareHolloway, 288 Ga. at 149 (reversing a voluntary decrease in the amount of child support to be paid to the custodial parent without any finding by the court that the decrease was in the best interest of the children, explaining that “[t]he child support guidelines were made mandatory to ensure that the best interests of the children were protected, and a self-interested agreement made by a parent cannot override this purpose.”). In any event, Husband was not entitled to the mandatory specific deviation for special expenses incurred for childrearing because he did not offer evidence of any costs of the child’s extracurricular activities, much less show that “the full amount of the special expenses as described in this division . . . exceed[s] 7 percent of the basic child support obligation.” OCGA § 19-6-15 (i) (2) (J) (ii).
Husband contends that the trial court erred in ordering him to enter into a general security agreement and a collateral pledge agreement to guarantee the payments required by the divorce decree. Husband was awarded the marital estate’s interests in two limited liability companies and a residential real estate partnership and ordered to pay Wife half their value – $96,250 – in monthly installments of $2,000. Requiring Husband to execute the agreements was a practical and reasonable way for the court to ensure that Wife would receive her interest in the marital estate as ordered, and Husband cites no authority showing that such a requirement is improper. In addition, the trial court had reason to question Husband’s willingness to make the ordered payments given its finding that he grossly underrepresented his monthly income to the court and even fabricated a misleading profit and loss statement. Accordingly, we hold that the trial court did not abuse its discretion by requiring Husband to execute the agreements.
Husband claims that the trial court erred in awarding attorney fees to Wife under OCGA § 19-6-2 (a) without considering the respective financial position of the parties. However, absent some indication to the contrary, we presume that the court followed the directive of § 19-6-2 (a) (1) to “consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party.” Moreover, this claim is premised on Husband’s argument, which we rejected in Division 2 above, that the court erred in finding that he had gross monthly income of $12,000.
In his final enumeration, Husband contends that the trial court abused its discretion by failing to consider his inability to make the monthly installment payments of $2,000 toward the equitable division award. Again, this argument is premised on Husband’s argument, rejected in Division 2, that the court erred in finding that his monthly gross income was $12,000. In any event, the divorcedecree awarded Husband his sole proprietorship, stock shares, retirement accounts, two vehicles, and partial ownership interests in two limited liability companies and a residential repair partnership. “[U]nder Georgia law, a party can be required to sell or encumber property in order to pay equitable division . . . . [Husband] can sell or encumber his property, or take any other action he deems necessary, to comply with the trial court’s order. Wier v. Wier, 287 Ga. 443, 444 (696 SE2d 658) (2010).
Judgment affirmed in part and reversed in part and case remanded with direction.
All the Justices concur.
A.B. Moore and J.H. Moore-McKinney (“McKinney”) married in 1994 and divorced in 2002. Legal custody of their two minor children was awarded to Moore and McKinney, jointly, and McKinney was designated as primary physical custodian. On February 6, 2008, Moore filed a petition in superior court to modify the divorce decree’s visitation schedule. Following an evidentiary hearing, the trial court issued its final order of modification and awarded attorney fees to McKinney.
On appeal, Moore contends that the trial court erred in preventing him from introducing evidence of McKinney’s mental health history, altering his Wednesday visitation schedule, refusing to change the visitation drop-off location, and imposing restrictions on his ability to carry a weapon. Moore further contends that the trial court erred
- in refusing to accept his parenting plan,
- in awarding attorney fees to McKinney,
- in failing to award him costs of litigation, and
- in requiring he pay the cost of preparing the record for appeal. For the reasons set forth below, we find:
- that the final order of modification incorrectly reflected the parties’ agreement as to Moore’s Wednesday visitation schedule, and that the order be corrected upon remand;
- that the order failed to incorporate a parenting plan, which is mandated by OCGA § 19-9-1, and that a parenting plan be incorporated into the order upon remand; and
- that the order’s award of attorney fees to McKinney be vacated and that the issue of fees and expenses be reconsidered by the trial court on remand. We otherwise find no merit in Moore’s claims of error.
As a threshold issue, we address McKinney’s claim that Moore’s direct appeal of the trial court’s final order of modification was improper. McKinney argues that Moore was required to follow the discretionary appeal procedure set forth in OCGA § 5-6-35, and that his failure to do so requires that this appeal be dismissed for lack of jurisdiction. We disagree.
“Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal.” OCGA § 5-6-37. OCGA § 5-6-34(a) further provides that “[a]ppeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts,” including, among others, final judgments “except as provided in Code Section 5-6-35″2 and, under the recently enacted OCGA § 5-6-34(a)(11), “all judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.”
McKinney argues that this is not a child custody case, and so does not fall within the purview of OCGA § 5-6-34(a)(11). It is true that Moore’s petition was for modification of the divorce decree’s visitation schedule, and visitation rights do not equal custody. See Atkins v. Zachary, 243 Ga. 453, 454, 254 S.E.2d 837 (1979). However, a “change in visitation amounts to a change in custody in legal contemplation since visitation rights (sometimes called visitation privileges) are a part of custody.” (Citation and punctuation omitted.) Facey v. Facey, 281 Ga. 367, 369(2), 638 S.E.2d 273 (2006). See also Katz v. Katz, 264 Ga. 440, 441, 445 S.E.2d 531 (1994) (“visitation is an integral part of custody”); Nodvin v. Nodvin, 235 Ga. 708, 221 S.E.2d 404 (1975); Daugherty v. Murphy, 225 Ga. 588(2), 170 S.E.2d 428 (1969) (“visitation privileges are a part of custody”).3 We conclude that Moore’s petition was therefore a “child custody case” for purposes of OCGA § 5-6-34(a)(11).
Nevertheless, we must consider whether this case remains subject to OCGA § 5-6-35. “An application for appeal is required when the `underlying subject matter’ is listed in OCGA § 5-6-35(a). Therefore, the discretionary application procedure must be followed, even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34(a).” (Citations omitted.) Rebich v. Miles, 264 Ga. 467, 468, 448 S.E.2d 192 (1994). See also Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 256-257(1), 564 S.E.2d 715 (2002); Best Tobacco, Inc. v. Dept. of Revenue, 269 Ga.App. 484, 485, 604 S.E.2d 578 (2004).
Under the previous version of OCGA § 5-6-35(a)(2), this case would have been subject to the discretionary appeal procedure because the statute specifically included child custody cases.4 The General Assembly, however, removed all references to child custody cases in the amended version of OCGA § 5-6-35(a)(2), as applicable here.5 The language of OCGA § 5-6-35(a)(2) continues to refer to “other domestic relations cases … not limited to ….” the specific types of domestic relations cases enumerated therein. At least as a matter of general classification, child custody cases are domestic relations cases.6 It is thus unclear what the General Assembly intended by its amendment to OCGA § 5-6-35(a)(2).
“In resolving this issue, we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature’s intent.” State v. Nix, 220 Ga.App. 651, 652(1), 469 S.E.2d 497 (1996). “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1(a). The literal language of OCGA § 5-6-35(a)(2), as amended, suggests that an appeal in any case classified as a domestic relations case is subject to the discretionary appeal procedure. Further, in Leonard v. Benjamin, 253 Ga. 718-719, 324 S.E.2d 185 (1985), our Supreme Court compared OCGA § 5-6-35(a)(2), as in effect before the 2007 amendment at issue here, to the preceding version of the statute, and found it was the intent of the legislature to add child custody habeas corpus actions to the purview of OCGA § 5-6-35, even though such cases were not specifically enumerated. See id. at 719, 324 S.E.2d 185. The import of Leonard is that the legislature intended the then applicable version of OCGA § 5-6-35(a)(2) to be interpreted broadly in light of the change in the law to add language including “other domestic relations cases,” language which remains in the current version of the statute. See OCGA § 5-6-35(a)(2); Leonard, 253 Ga. at 718-719, 324 S.E.2d 185. See also Walker v. Estate of Mays, 279 Ga. 652, 653(1), 619 S.E.2d 679 (2005) (appeals in domestic relations cases must be brought by discretionary appeal).
Notwithstanding the foregoing, a comparison of the old law to the new law shows that, rather than expanding the operation of the statute, as was the intent of the legislature in the version of the statute at issue in Leonard, in its 2007 amendment the legislature pared OCGA § 5-6-35(a)(2) by omitting all references to child custody cases. Simultaneously, and importantly in our view, the General Assembly modified OCGA § 5-6-34(a) by adding OCGA § 5-6-34(a)(11), which provides for a direct appeal from child custody cases. The logical conclusion to be drawn from these changes to pre-existing law is that the legislature intended for child custody cases to be treated differently from other domestic relations cases for purposes of appeals. Accordingly, we find that it was the intent of the General Assembly to remove child custody cases from the operation of OCGA § 5-6-35(a)(2) when it excised references to such cases from the statute. To rule otherwise would be to ignore the apparent intent of the legislature while affording no practical effect to its 2007 amendment of OCGA § 5-6-35(a)(2). See, e.g., Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga.App. 521, 522, 629 S.E.2d 501 (2006) (“it is not presumed that the legislature intended to enact meaningless language”) (citation omitted); Nix, 220 Ga.App. at 652(1), 469 S.E.2d 497 (“[w]here the literal language does not square with reason or intent, then the literal must yield”) (citation and punctuation omitted). It follows that since Moore appeals from a final order in his child custody case, his direct appeal is proper and not subject to dismissal as urged by McKinney.
Moore contends that the trial court erred in preventing him from introducing evidence of McKinney’s mental health history. We disagree.
While cross-examining McKinney, Moore began an apparent question by stating “you had to seek the help of a mental health professional….” McKinney’s counsel objected on the grounds that the issue was not relevant. The trial court sustained the objection and indicated its belief that Moore was asking about events that were 12 years old. Moore represented that he had only been trying to lay a foundation, and then proceeded to ask McKinney if she had tried to commit suicide. When it was revealed that Moore was asking about events in 1989, the trial court again sustained an objection.
“Evidence is relevant if it logically tends to prove, disprove, or shed light upon any material fact at issue in a case.” Marshall v. State, 275 Ga. 740, 742(5), 571 S.E.2d 761 (2002). Citing OCGA § 19-9-3(a)(4)(B) and (D), Moore argues that the trial court was required to consider McKinney’s prior acts of violence and contends that McKinney’s “mental health history … caused other prior acts of domestic violence against him.” OCGA § 19-9-3(a)(4) is expressly applicable where the trial court makes a finding of the existence of family violence, but it did not do so in this case. See Welch v. Welch, 277 Ga. 808, 809-810, 596 S.E.2d 134 (2004). Assuming that McKinney’s alleged past acts of violence were nevertheless relevant, whether McKinney had previously sought the help of a mental health professional or had attempted to commit suicide in 1989 was not probative of whether she committed acts of violence against other persons or of any other material issue in the case. The trial court did not abuse its discretion in refusing to allow the evidence.
Moore further claims that the trial court erred (i) in allowing the drop-off visitation exchange location to remain at McKinney’s residence, and (ii) in removing one hour of his Wednesday parenting time when the children were not in school. In applicable part, the divorce decree provided that Moore was responsible for transporting the children to and from visits. Moore had done this by picking up and dropping off the children at McKinney’s residence. The final order of modification provided that while the children were in school, Moore would pick up the children from school, and that when the children were not in school, Moore would pick up the children at the Barnes and Noble on Barrett Parkway. In both cases, Moore was required to drop the children off at McKinney’s residence.
The divorce decree also provided that Moore “shall have the children every Wednesday from either [5:00 p.m.] or [6:00 p.m.] to [8:00 p.m.] as his work will allow. The father will notify the mother of his intention one time and continue that arrangement until a work routine change occurs.” The father had elected thereunder to take the children at 5:00 p.m. In the final order of modification, the trial court provided that Moore “shall also have the children every Wednesday from 5:00 p.m. when the children are in school, or from 6:00 p.m., when the children are not in school, to 8:00 p.m.”
“Modification of child visitation rights is a matter of discretion with the trial court.” Parker v. Parker, 242 Ga. 781, 251 S.E.2d 523 (1979). Although Moore portrays himself as a victim of family violence and the trial court’s ruling as failing to protect him, the trial court’s ruling is consistent with its charge of determining what was in the best interests of the children. See OCGA § 19-9-3(a)(2). It is true that “[t]he judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence.” OCGA § 19-9-3(a)(4)(A). In view of the evidence, however, the trial court was not required to find, nor did it find, that Moore was the victim of family violence. The evidence does establish that when Moore and McKinney come into contact that conflict often follows. The trial court’s modification order reduces the opportunity for such conflict in the presence of the children, notwithstanding that Moore was required to continue to drop the children off at McKinney’s residence. We find no abuse of discretion.
We agree with Moore, however, that the trial court erroneously modified his Wednesday visitation hours. McKinney does not contend that this was a matter in which the trial court exercised its discretion. Rather, she maintains that Moore agreed to the change, but she fails to cite to the record or the transcript to support this assertion.9 Moore, on the other hand, cites directly to the hearing transcript, which shows a discussion between Moore, McKinney’s counsel, and the trial court at the end of the hearing which is consistent with the parties, with the express approval of the trial court, having agreed that rather than either 5:00 p.m. or 6:00 p.m., the Wednesday pick-up time would be 5:00 p.m., and no exceptions were discussed.10 Under the circumstances, the order’s provision as to the Wednesday visitation schedule, to the extent that it reflected that the pick-up time would be 6:00 p.m. when the children were not in school, was not a valid exercise of the trial court’s discretion but a mistake in reflecting a matter agreed upon by the parties. See generally OCGA § 19-9-5(a) (parents may present an agreement “respecting any and all issues concerning custody of the child”).
Moore contends that the trial court erred in refusing to accept his parenting plan. We disagree, but conclude that the trial court erred in not incorporating any parenting plan into its final order.
Moore submitted a parenting plan on the day of the hearing11 and asked that the trial court adopt his plan. McKinney did not submit a parenting plan. The trial court did not adopt Moore’s parenting plan in its final order, nor did the order expressly incorporate a parenting plan.
Although Moore did not request a change which would alter the award of joint legal custody of the children, his request to modification to visitation did involve the custody provisions of the divorce decree. See Facey, 281 Ga. at 369(2), 638 S.E.2d 273. Accordingly, we agree with Moore that the provisions of OCGA § 19-9-1(a), which require the parties to submit parenting plans in custody and “modification actions,” and contemplate the inclusion of a parenting plan in legal actions “involving” custody, applied here.12 Nevertheless, although McKinney did not file a parenting plan, and Moore moved the trial court to adopt his parenting plan, the trial court was not required to accept Moore’s plan. “Failure to comply with filing a parenting plan may result in the judge adopting the plan of the opposing party if the judge finds such plan to be in the best interests of the child.” (Emphasis supplied.) OCGA § 19-9-1(c). Further, the trial court did not summarily reject Moore’s parenting plan, as Moore asserts. Rather, in light of OCGA § 19-9-1(c), the trial court correctly maintained that it was required to act in the best interests of the children and that it was not obligated to adopt the father’s plan by default. The trial court did not abuse its discretion in refusing to accept the father’s parenting plan, especially as the plan was inconsistent with the final order of modification and contained provisions which the trial court was not required to conclude were in the best interests of the children.
Moore asks that if we do not order the trial court to adopt his parenting plan that we remand the case with instructions that the trial court make findings of fact and conclusions of law addressing why Moore’s plan was detrimental to the children. However, OCGA § 19-9-1 does not contemplate that the trial court explain why it accepted or rejected a parenting plan. Moore did file a motion for findings of fact and conclusions of law prior to the hearing, but pretermitting whether the final order otherwise complied with the request, the issues raised by OCGA § 19-9-1 are collateral to the modification proceeding, and we will not require the trial court to make explicit findings of fact and conclusions of law as to why it accepted or failed to accept a particular parenting plan. Findings “need be made only on issues necessary to a disposition of the cases and upon which the judgment was entered.” Spivey v. Mayson, 124 Ga.App. 775, 776-777, 186 S.E.2d 154 (1971).
Moore further contends that the trial court erred in light of the requirement that “the final decree in any legal action involving the custody of a child, including modification actions, shall incorporate a permanent parenting plan.” OCGA § 19-9-1(a). This provision cannot be logically extended to require the trial court to incorporate a particular party’s parenting plan on the grounds that it is the only plan submitted. Nevertheless, the trial court’s final order does not incorporate a parenting plan and the statute mandates without exception that one be incorporated. Accordingly, we are constrained to remand the case with instructions that the trial court incorporate a parenting plan into its final order consistent with the requirements of OCGA § 19-9-1 and the divorce decree, as modified by the final judgment. See OCGA § 19-9-1(b).
During the hearing, McKinney asked for attorney fees on grounds that Moore had unnecessarily expanded the litigation. Following argument, the trial court concluded that Moore had unnecessarily expanded the litigation, that the fees incurred by McKinney’s attorney were reasonable, stated its intent to award attorney fees to McKinney in the amount of $3,750, and subsequently made the award in its final order. The trial court considered but did not award Moore expenses of litigation, as Moore requested. Moore claims that the trial court erred (i) in awarding attorney fees to McKinney and (ii) in failing to award him his litigation expenses.
The trial court did not specifically state the statutory basis for its fee award in its final order or during the hearing, although it appears that, given McKinney’s motion and argument, she requested fees under OCGA § 9-15-14(b). In its final order, however, the trial court makes no findings which would authorize an award of attorney fees against Moore under OCGA § 9-15-14. See Cason v. Cason, 281 Ga. 296, 300(3), 637 S.E.2d 716 (2006) (“[a]n order awarding attorney fees under OCGA § 9-15-14 must include findings of conduct that authorize the award”). During the hearing, the trial court found that Moore had expanded the litigation by “mak[ing] it more difficult than it ought to be,” but made no findings as to Moore’s conduct that would support a fee award under OCGA § 9-15-14(b). Compare Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 241(2)(b), 620 S.E.2d 463 (2005) (although not recited in the written order, the trial court’s determination during the evidentiary hearing that attorney fees were reasonable and necessary was sufficient as to that issue). Specifically, the trial court found only that “the problem … is … the way you’ve done everything you’ve done today, it’s taken about four times as long as it should take. A lawyer would do it like that (snaps fingers).” Although Moore, who was acting pro se, may have been slower than an attorney, this is not a finding which shows that he “unnecessarily expanded the proceeding by other improper conduct” as contemplated by OCGA § 9-15-14(b).
McKinney points out that “[a] judgment right for any reason will be affirmed.” Waits v. Waits, 280 Ga.App. 734, 736, 634 S.E.2d 799 (2006). This includes an attorney fee award. Id. We agree with McKinney that attorney fees were available to her under newly enacted OCGA 19-9-3(g),14 which affords wide discretion to the trial court to award reasonable attorney fees and expenses in child custody actions “to be paid by the parties in proportions and at times determined by the judge.” However, while “it is apparent [the trial court] exercised its discretion in making [the attorney fee] award,” we cannot say it is apparent that the trial court “would have done so under [OCGA § 19-9-3(g)].” Shapiro v. Lipman, 259 Ga. 85, 86, 377 S.E.2d 673 (1989). Unlike OCGA § 9-15-14(b), a fee award under OCGA § 19-9-3(g) would not necessarily be focused on Moore’s conduct. Thus, it is not apparent that the trial court would have awarded fees under OCGA § 19-9-3(g), especially in light of McKinney’s failure to file a parenting plan. Accordingly, we will not affirm the fee award on grounds that it is right for any reason. Rather, that portion of the trial court’s order awarding attorney fees to McKinney is vacated, and “the issue of attorney fees must be remanded for an explanation of the statutory basis for the award and any findings necessary to support it.” Cason, 281 Ga. at 300, 637 S.E.2d 716. In light of our findings here and in Division 3, the trial court is also instructed to reconsider Moore’s request for expenses of litigation.
Moore claims that the trial court erred in imposing restrictions on his ability to carry a weapon in his vehicle or person. We disagree.
According to McKinney, on one occasion Moore “pulled [a] gun out on [her]” when he was picking up the children. The police were called,15 and they located a gun in Moore’s glovebox, with bullets in the magazine, and they determined that Moore had a permit for the weapon. Officers investigated further, including questioning witnesses, but “couldn’t prove either way whether it was an act of aggression or [the gun] just fell out of the glove compartment….”
During the hearing, the trial court indicated that he was contemplating ordering that “nobody possess a firearm … during the exercise of visitation,” but the final order succinctly provides: “The parties will not have any weapons in their possession when exchanging the children.” The trial court was entitled to conclude that this restriction was in the children’s best interests. Further, the order does not infringe, as Moore insists, “[t]he right of the people to keep and bear arms.” Sturm, Ruger & Co. v. City of Atlanta, 253 Ga.App. 713, 718, 560 S.E.2d 525 (2002) (quoting Art. I, Sec. I, Par. VIII of the Georgia Constitution of 1983). Moore’s ownership of a firearm is not prohibited, and his possession of a firearm is not restricted except in the context of a narrowly tailored condition of visitation justified by the evidence. “In awarding visitation rights, a trial court is authorized to impose such restrictions as the circumstances warrant.” Woodruff v. Woodruff, 272 Ga. 485, 488(1), 531 S.E.2d 714 (2000). Compare Rawcliffe v. Rawcliffe, 283 Ga.App. 264, 265-266(2), 641 S.E.2d 255 (2007) (ban on defendant’s possession or ownership of firearms not authorized as relief under a protective order). We find no error.
Lastly, Moore claims that because this was a “family violence visitation modification,” the trial court erred in assigning him the costs of preparing the record for appeal. To show that he had been assessed costs, Moore references a “notice of trial court cost,” but the document does not appear in the record. Further, Moore’s notice of appeal requests that a notice of cost be sent to Moore by the clerk of the court, not the trial court, and Moore does not otherwise establish that there is a ruling by the trial court on this issue. Compare Rewis v. Shaw, 208 Ga.App. 876, 877, 432 S.E.2d 617 (1993) (clerk, who was the real party in interest, appealed from trial court’s grant of a party’s motion regarding costs of preparing record for appeal). Accordingly, there is nothing for this Court to review.
In light of the foregoing, we vacate that portion of the trial court’s final order awarding attorney fees to McKinney and remand with direction that
- the order be corrected so that the third sentence in the second paragraph provides: “The Plaintiff shall also have the children every Wednesday from 5:00 p.m. to 8:00 p.m.”;
- a parenting plan in compliance with OCGA § 19-9-1 be incorporated therein; and
- the trial court reconsider the issue of attorney fees and expenses of litigation. Following the entry of a new judgment, either party may appeal on grounds that the parenting plan failed to conform to the requirements of OCGA § 19-9-1 and the losing party may appeal any award of fees or expenses. See Wyatt v. Hertz Claim Mgmt. Corp., 236 Ga.App. 292, 294(2), 511 S.E.2d 630 (1999).
Judgment affirmed in part and vacated in part, and case remanded with direction.
BLACKBURN, P.J., and DOYLE, J., concur.
This appeal involves a contempt sanction arising out of a divorce case. The trial court held D. Killingsworth in contempt of court for willfully disobeying several provisions of the parties’ 2006 divorce decree. We granted Mr. Killingsworth’s application for discretionary appeal and directed the parties to address whether the trial court impermissibly modified thedivorce decree by requiring Mr. Killingsworth to pay his ex-wife, C. Killingsworth, $1,850 in cash in lieu of transferring one-half of his 401 (k) account to her as ordered by the divorce decree. As explained below, we conclude that this change did constitute an impermissible modification of the divorcedecree and therefore reverse that portion of the trial court’s judgment. Mr. Killingsworth’s other three enumerations of error are without merit, and we affirm the remainder of the contemptjudgment, including the finding that Mr. Killingsworth willfully disobeyed the 2006 divorcedecree, except for the calculation of attorney fees for the contempt proceeding which the trial court will need to reconsider on remand.
The Killingsworths divorced in late 2006. The divorce decree awarded Mr. Killingsworth the couple’s motorcycle and extremely run-down mobile home, and Ms. Killingsworth was ordered to leave the residence “in the same condition that it was in at the date of the separation.” The divorce decree awarded Ms. Killingsworth $2,000 for her interest in the couple’s motorcycle, $1,000 in alimony for moving expenses, alimony of $500 per month for 12 months, and $2,000 in attorney fees. The decree also awarded her “one-half (½) of the Husband’s retirement account as of November 13, 2006, together with any gains or losses accruing on said amount subsequent to the hearing” and directed that the “attorney of the Wife shall prepare the QDRO that is necessary to transfer these funds.”
Ms. Killingsworth vacated the mobile home on November 26, 2006, shortly after the final decree was filed. The mobile home was in the same dilapidated condition it was in when the parties separated in 2005, and she locked the deadbolt to the front door on her way out. Ms. Killingsworth learned that Mr. Killingsworth was in the mobile home over the following weekend, and when she went there a few days later, she found the door kicked in, saw running water on the floor in the hallway, and immediately called the police. The mobile home, which was in poor condition to begin with, had been extensively vandalized. The following day, Mr. Killingsworth paid Ms. Killingsworth the $1,000 in alimony he owed her for moving expenses, and he made one monthly alimony payment of $500. From that point forward, Mr. Killingsworth refused to make any of the payments ordered under the divorce decree, citing as justification the vandalism to the mobile home and the provision of the divorce decree ordering Ms. Killingsworth to leave it in the same condition it was in when the parties separated.
Ms. Killingsworth filed a motion for contempt against Mr. Killingsworth in May 2008, and three months later, Mr. Killingsworth filed a motion for contempt against her. On December 12, 2008, the trial court conducted an evidentiary hearing at which it heard testimony from both parties. A month later, the trial court entered substantially identical orders holding Mr. Killingsworth in contempt of court but declining to hold Ms. Killingsworth in contempt.
Thecontempt orders directed Mr. Killingsworth to pay Ms. Killingsworth $11,050. This sum represented the $5,500 in back due monthly alimony awarded in the divorce decree plus the $2,000 for Ms. Killingsworth’s interest in the couple’s motorcycle and the $2,000 attorney fees award; plus $1,850 for Ms. Killingsworth’s one-half interest in Mr. Killingsworth’s 401(k) account;2 plus an additional $1,200 in attorney fees for the contempt proceeding; minus $1,500 for three appliances awarded to Mr. Killingsworth in the divorce decree that Ms. Killingsworth allegedly removed from the mobile home.
We granted Mr. Killingsworth’s application for discretionary appeal on March 16, 2009, and directed the parties to brief the following question: “Did the trial court err in requiring the husband to pay 401(k) funds in cash upon holding the husband in contempt?” Mr. Killingsworth filed timely notices of appeal from the two substantially identical contempt orders, and the case was submitted for decision on the briefs.
Mr. Killingsworth contends that the trial court impermissibly modified the divorce decree in the contempt orders by requiring him to pay Ms. Killingsworth $1,850 in cash in lieu of transferring half his 401(k) funds to her through a QDRO prepared by her counsel, as required by the 2006 divorce decree. We agree.
A trial court may interpret a divorce decree, or clarify a prior order or judgment, in the course of resolving contempt issues placed before it. See Johnston v. Johnston, 281 Ga. 666, 667, 641 S.E.2d 538 (2007). In addition, “[t]he trial court has the power to see that there be compliance with the intent and spirit of its decrees[,] and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.” Cason v. Cason, 281 Ga. 296, 297, 637 S.E.2d 716 (2006) (citation and punctuation omitted). However, a trial court has no power to modify the terms of a divorce decree in a contempt proceeding. Smith v. Smith, 281 Ga. 204, 206, 636 S.E.2d 519 (2006). The test for distinguishing permissible interpretations and clarifications from impermissible modifications is “whether the clarification [or interpretation] is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification.” Cason, 281 Ga. at 297, 637 S.E.2d 716 (citation and punctuation omitted).
The trial court’s contempt order did not merely “clarify” the provision of the divorce decree awarding Ms. Killingsworth one-half of Mr. Killingsworth’s 401(k) account. The divorce decree specified both how Ms. Killingsworth’s interest in the 401 (k) account would be calculated and the manner in which the transfer was to be accomplished, including requiring her counsel to prepare the QDRO, which had not been done. We agree with Mr. Killingsworth that transmuting this award into a presently due cash obligation of $1,850 was “so contrary to the apparent intention of the original order as to amount to a modification.” Id. (citation and punctuation omitted). Accordingly, we reverse the portion of the contempt orders directing Mr. Killingsworth to pay Ms. Killingsworth $1,850 in cash for her one-half interest in Mr. Killingsworth’s 401(k) plan. Our holding does not, of course, relieve Mr. Killingsworth of his obligation to transfer to Ms. Killingsworth one-half of his 401(k) account “as of November 13, 2006, together with any gains or losses accruing on said amount” subsequent to the finaldivorce hearing, as required by the divorce decree, with Ms. Killingsworth’s counsel remaining responsible for preparing the necessary QDRO.
Mr. Killingsworth contends that the trial court erred in failing to hold Ms. Killingsworth incontempt of court for allegedly failing to turn over the marital residence to him in the same condition it was in when the parties separated. Trial courts have “broad discretion” in ruling on a motion for contempt, Cameron v. Richards, 246 Ga. 231, 231, 271 S.E.2d 146 (1980), and the trial court’s ruling will be affirmed on appeal if there is any evidence in the record to support it, Pate v. Pate, 280 Ga. 796, 798, 631 S.E.2d 103 (2006). There is no evidence in the record that Ms. Killingsworth did anything to damage the marital residence. In addition, there was evidence before the trial court that someone seriously vandalized the property after Ms. Killingsworth left, possibly Mr. Killingsworth himself or someone acting at his direction. Accordingly, there was ample evidence in the record to support the court’s finding that Ms. Killingsworth did not willfully disobey the provision of the divorce decree requiring her to leave the marital residence in the same condition, and we affirm the trial court’s decision not to hold her in contempt.
Mr. Killingsworth contends that the trial court abused its discretion in awarding Ms. Killingsworth $1,200 in attorney fees for the contempt proceeding because it failed to consider the financial circumstances of the parties as required by OCGA § 19-6-2(a)(1).
However, Mr. Killingsworth testified at the evidentiary hearing on the contempt motions that he owned property worth $30,000 to $40,000, and Ms. Killingsworth testified that when the parties divorced in 2006, Mr. Killingsworth had almost $40,000 in cash stashed away in a box. Under the circumstances, we cannot say that the trial court failed to consider the financial circumstances of the parties, and the court did not abuse its discretion in awarding Ms. Killingsworth attorney fees. However, on remand, the trial court should reexamine the amount of attorney fees awarded for the contempt proceeding. To the extent the award was based on the 401 (k) issue, the court may consider, in its discretion, revising it in light of our disposition of that issue in Division 2 above.
Finally, Mr. Killingsworth claims that the trial court erred when it refused to allow his attorney to make a closing argument at the evidentiary hearing on the contempt motions. InWilson v. Wilson, 277 Ga. 801, 802, 596 S.E.2d 392 (2004), this Court recognized that closing argument is a material right in trials, even bench trials. However, a contempt proceeding is not a separate lawsuit, and as such, an evidentiary hearing on a contempt motion is not the equivalent of a trial. See Phillips v. Brown, 263 Ga. 50, 51, 426 S.E.2d 866 (1993) (“It is axiomatic that an action for contempt is ancillary to the primary action and, as such, is not a pleading but a motion.”); Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 258, 327 S.E.2d 487 (1985) (“[A]n application for contempt may not, standing alone, serve to commence a civil action for damages as it is not a complaint.”). Moreover, in Bull v. Bull, 280 Ga. 49, 50-51, 622 S.E.2d 326 (2005), we held that where a party does not request closing argument, the right to closing argument recognized in Wilson v. Wilson is waived. A review of the hearing transcript shows that Mr. Killingsworth did not request closing argument. Accordingly, there was no error.
Judgment affirmed in part, reversed in part, and case remanded with direction.
All the Justices concur.
