In the Supreme Court of Georgia



                                             Decided: March 16, 2015


                         S14A1669. NEAL v. HIBBARD.
                           S14A1673. NEAL v. NEAL.


      HINES, Presiding Justice.

      In these two cases, Joseph R. Neal, Jr. (“Neal”) appeals the trial court’s

orders modifying child custody and child support as they pertain to his two

children by two different marriages. For the reasons that follow, as to both

cases, we affirm in part, reverse in part, and remand for proceedings consistent

with this opinion.

      Neal and Allyson C. Hibbard (“Hibbard”) were divorced on January 28,

2000. They had one child together, a son who was fifteen at the time of the

bench trial in the instant action; under the 2000 final judgment and decree of

divorce, the parties had joint legal and physical custody of their son, who spent

half of his time with each parent. In the divorce decree, Neal was ordered to pay

child support to Hibbard in the amount of $660.00 per month, as well as certain

expenses of the child.
         Neal and Jennifer S. Neal (“Jennifer”), Neal’s second wife, were divorced

in October, 2006, remarried in 2009, and divorced again on July 22, 2010. They

had one child together, a daughter who was seven at the time of the bench trial

in the instant action; under the 2010 final judgment and decree of divorce, the

parties had joint legal and physical custody of the child, and again, the child’s

time was split equally between the two parents, and Neal was ordered to pay

Jennifer $1,000.00 per month in child support, as well as certain expenses of the

child.

         On December 16, 2011, a sexual incident occurred involving Neal, his

then-wife,1 and their eighteen-year-old babysitter. As a result of the incident,

Neal was charged with rape and other crimes; the rape charge was dismissed in

2012, although Neal was sentenced for possession of marijuana and furnishing

alcohol to an underage person. Neal was a personal injury attorney in Augusta;

his criminal prosecution received extensive negative media coverage; his income

was negatively impacted; and he was suspended from the practice of law in

South Carolina and the United States District Court for the Southern District of

Georgia. Neal then moved to Atlanta in an effort to restore his practice.

         1
             Neal and this wife are now divorced and she is not a party to this action.

                                                     2
      Both Hibbard and Jennifer sought modification of their divorce decrees

as to child custody and support, and the cases were heard together. As to Neal’s

son with Hibbard, on September 10, 2013, the trial court entered its final order

modifying custody, giving the parties joint legal custody of the child, with

Hibbard being the primary physical custodian, and Neal’s visitation taking place

in Augusta. On the issue of support, on September 26, 2013, the trial court

entered a temporary order under which Neal was to pay $2,000.00 per month;

on November 23, 2013, the trial court awarded Hibbard $1,774.00 per month

in its final judgment modifying child support. Neal appeals from these orders

in case number S14A1669.

      As to Neal’s child with Jennifer, on September 10, 2013, the trial court

entered its final order modifying custody, giving the parties joint legal custody

of the child, with Jennifer being the primary physical custodian, and Neal’s

visitation taking place in Augusta. In a September 26, 2013, temporary child

support order, Neal was directed to pay $2,000.00 per month. On November 14,

2013, the trial court awarded Jennifer $1,857.00 per month in its final judgment

modifying child support, and in the same order, awarded her $5,334.00 in

arrears for unpaid child support; in a subsequent order, the court awarded

                                        3
Jennifer $15,617.34 in attorney fees and litigation expenses. Neal appeals from

these orders in case number S14A1673.



                               Case No. S14A1669.



      1. Neal contends that the trial court erred in modifying custody of his son.

      In determining whether or not a material change in circumstances
      substantially affecting the welfare of a child or children has taken
      place, the trial judge is vested with a discretion which will not be
      controlled by this court unless it is abused. . . . [T]his court will not
      interfere with [the trial judge’s] finding when there is any evidence
      to support it. [Cit.]

Horn v. Shepherd, 292 Ga. 14, 18 (5) (732 SE2d 428) (2012).

      Nonetheless, Neal asserts that his sexual behavior was the only basis for

the trial court’s decision, and that, as such occurred without any child being

present in the home at the time, his behavior should not be considered in

determining whether a material change in circumstances occurred. As this Court

has previously noted,

      [t]he best interests of the child are controlling as to custody
      changes. OCGA § 19-9-3 (a) (2); Parr v. Parr, 196 Ga. 805 (27
      SE2d 687) (1943). Whether particular circumstances warrant a
      change in custody is a fact question determined under the unique

                                         4
      situation in each individual case. Wilson v. Wilson, 241 Ga. 305
      (245 SE2d 279) (1978). In contemplating a custodial change, the
      trial court must exercise its discretion to determine whether a
      change is in the best interests of the child. OCGA § 19-9-3. The
      circumstances warranting a change in custody are not confined to
      those of the custodial parent: any new and material change in
      circumstances that affects the child must also be considered.
      Handley v. Handley, 204 Ga. 57, 59 (48 SE2d 827) (1948). The law
      thus recognizes that because children are not immutable objects but
      living beings who mature and develop in unforeseeable directions,
      the initial award of custody may not always remain the selection
      that promotes the best interests of the child.

Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). In determining the best

interests of the child, a court may consider the conduct of the parents. Patel v.

Patel, 276 Ga. 266, 267-269 (1) (577 SE2d 587) (2003); Mock v. Mock, 258 Ga.

407 (369 SE2d 255) (1988). As the trial court noted, there was evidence of the

notoriety produced by Neal’s conduct, and the effects thereof, including Neal’s

move from Augusta to Atlanta. The court heard evidence regarding the logistics

of visitation, and a relocation of a parent is a factor that the trial court can

consider in determining the best interests of the child. See Salmon-Davis v.

Davis, 286 Ga. 456, 457-458 (1) (689 SE2d 303) (2010). Neal fails to show

error on this ground. Horn, supra.

      2. Neal urges that any modification of child support to Hibbard is


                                        5
unwarranted, contending that Hibbard never requested a modification of

support, but such a request is in her original complaint, and a modification of

support is justified, given the change in custody. See Stoddard v. Meyer, 291

Ga. 739 (732 SE2d 439) (2012). Further, Hibbard’s absence from the second

consolidated hearing on custody and child support did not waive her right to

receive from Neal, for the benefit of the child, financial support that reflects the

change in custody; Neal cites Sykes v. State, 236 Ga. App. 518 (511 SE2d 566)

(1999), but it is simply inapposite. That case dealt with a criminal prosecution

in which the defendant made a speedy trial demand under OCGA § 17-7-170

(a), and the trial court found that, by his actions, the defendant had waived his

statutory right to a speedy trial.

      3. The trial court entered a temporary order of child support on September

26, 2013, setting support for Neal’s son at $2,000.00 per month. Neal notes that

the trial court did not append a child support calculation worksheet to the

temporary order, but none is required. Rather,

      [t]he child support worksheet and, if there are any deviations,
      Schedule E shall be attached to the final court order or judgment;
      provided, however, that any order entered pursuant to Code Section



                                         6
       19-13-42 shall not be required to have such worksheet and schedule
       attached thereto.

OCGA § 19-6-15 (m) (Emphasis supplied.) Nonetheless, “[t]he child support

guidelines contained in [OCGA § 19-6-15] are a minimum basis for determining

the amount of child support and shall apply as a rebuttable presumption in all

legal proceedings involving the child support responsibility of a parent.” OCGA

§ 19-6-15 (c) (1). However, there is no indication that the trial court used the

guidelines in determining the amount of child support in its temporary order;

indeed, the order shows on its face that the guidelines were not used, stating that

“[a]fter careful review of the evidence, the court is unable to calculate various

items relating to child support and arrears; therefore, the court will rehear all

matters related to child support and arrears.” The order then simply imposes a

child support obligation of $2,000.00 a month. But, “[i]f modification was

appropriate, then the court was required to use the child support guidelines to

calculate the new amount.” Wetherington v. Wetherington, 291 Ga. 722, 726 (2)

(a) (732 SE2d 433) (2012). The fact that the temporary order was superseded

by the final judgment for child support does not render it moot; the obligation

       2
          The temporary order at issue was not entered under OCGA § 19-13-4, which provides
for certain other procedures in cases of family violence.

                                              7
thereunder was improperly imposed, and Neal’s obligation for child support

during the relevant time is still not resolved. See Cannon v. Cannon, 270 Ga.

640 (514 SE2d 204) (1999). Accordingly, the temporary support judgment of

the trial court must be reversed and the case remanded for entry of an order that

complies with the statute. See Fladger v. Fladger, 296 Ga. 145, 149 (2) (765

SE2d 354) (2014).

      4. In its final judgment modifying child support, filed on November 13,

2013, the trial court ordered that Neal pay Hibbard $1,774.00 per month to

support his son. Neal contends that in doing so, the court erred in imputing to

him a gross monthly income of $18,750.00 when his financial affidavit showed

only a gross monthly income of $7,032.27. As Neal recognizes, the trial court

is empowered to impute income to a parent for willful or voluntary

unemployment or underemployment. See OCGA § 19-6-15 (f) (4) (D). See also

Brogdon v. Brogdon, 290 Ga. 618, 620 (3) (723 SE2d 421) (2012).

Nonetheless, he argues that no evidence supported such a ruling, and that in fact,

his income had diminished since his criminal prosecution; he also notes that the

court did not make written findings regarding the imputation of income.

However, “OCGA § 19-6-15 (f) (4) (D) does not require a trial court to make

                                        8
written findings as to why it decided to impute income to a spouse.” See

Bankston v. Lachman, 286 Ga. 459, 461 (2) (689 SE2d 301) (2010). And, a trial

court’s evaluation of willful unemployment or underemployment may involve

“any intentional choice or act that affects a parent’s income” in order to

determine “whether there is a substantial likelihood that the parent could, with

reasonable effort, apply his or her education, skills, or training to produce

income.” OCGA § 19-6-15 (f) (4) (D). And, the trial court was empowered to

consider not only Neal’s income of record, but also the assets he owned. OCGA

§ 19-6-15 (f) (4) (D) (iv). The court noted that Neal owned four real properties,

and that he had, since the time that he testified that his practice had declined,

purchased a car with an attendant monthly payment of $2,036.00, and was

paying $2,500.00 per month in rent, from the $7,032.27 monthly income

reported on his financial affidavit. See Banciu v. Banciu, 282 Ga. 616, 617-618

(1) (652 SE2d 552) (2007). Further, as to Neal’s reported income, the court

noted that in previous court filings regarding his income in prior years, Neal had

submitted financial declarations of his income that proved to understate that

income by more than $10,000 a month. Neal fails to show error in the trial

court’s imputation of income to him for the purposes of child support

                                        9
calculation.

      5. Neal notes that the final order of child support in this case includes a

Schedule B of the Child Support Worksheet that does not reflect the child

support he is ordered to pay in the companion case concerning his support

obligation for his daughter with Jennifer. He contends that the child support

order regarding his daughter should have resulted in an adjustment to his gross

income for the purposes of calculating child support when the trial court entered

its final order modifying child support as to his son on the theory that such was

a “preexisting order” to be taken into account under OCGA § 19-6-15 (f) (5)

(B). While it is true that the court entered its final order modifying child support

as to Neal’s daughter with Jennifer (Case no. S14A1673) on November 14,

2013, before the November 21, 2013 final order modifying child support as to

Neal’s son, that does not meet the definition of a “preexisting order” for

purposes of calculating child support under the statute. Rather,

      “[p]reexisting order” means:

               (A) An order in another case that requires a parent to
               make child support payments for another child, which
               child support the parent is actually paying, as evidenced
               by documentation as provided in division (f)(5)(B)(iii)
               of this Code section; and

                                          10
               (B) That the date and time of filing with the clerk of
               court of the initial order for each such other case is
               earlier than the date and time of filing with the clerk of
               court of the initial order in the case immediately before
               the court, regardless of the age of any child in any of
               the cases.

OCGA § 19-6-15 (a) (18) (Emphasis supplied.) The initial child support order

in the case of Neal’s son was filed on January 28, 2000, the date of the initial

order in the case of Neal’s daughter with Jennifer is July 22, 2010, and thus, the

trial court’s order of November 14, 2013 modifying Neal’s child support as to

his daughter with Jennifer does not constitute a “preexisting order” necessitating

an adjustment to Neal’s gross income under OCGA § 19-6-15 (f) (5) (B).

      6. In the court’s final order modifying child support, Schedule B of the

Child Support Worksheet includes an adjustment to Hibbard’s income to reflect

that a child born of another father lived in her home as a “qualified child.”3 Neal

      3
          Under OCGA § 19-6-15 (a) (20), a

      “Qualified child” or “qualified children” means any child:

               (A) For whom the parent is legally responsible and in whose home
               the child resides;
               (B) That the parent is actually supporting;
               (C) Who is not subject to a preexisting order; and
               (D) Who is not before the court to set, modify, or enforce support
               in the case immediately under consideration.

      Qualified children shall not include stepchildren or other minors in the home that

                                               11
contends that the trial court failed to make written findings of fact regarding his

son’s best interest in support of this adjustment. However, such is not required.



      Under the child support guidelines, the “[g]ross income of each parent

shall be determined in the process of setting the presumptive amount of child

support and shall include all income from any source[.]” OCGA § 19-6-15 (f)

(1) (A). Various adjustments may be made to the calculation of gross income,

OCGA § 19-6-15 (b) (2), including an adjustment for “theoretical child support

orders” under OCGA § 19-6-15 (f) (5) (C), which allows a trial court to take

into account the costs of maintaining a child living in a parent’s home, other

than a child who is the subject of the child support order that the court is

considering. OCGA § 19-6-15 (f) (5) (C). See also OCGA §§ 19-6-15 (a) (22)

& 19-6-15 (b) (2) (C); Strunk v. Strunk, 294 Ga. 280, 282-283 (4) (754 SE2d 1)

(2012). Whether to apply a theoretical child support order is in the trial court’s

discretion, and is based upon consideration of “the best interest of the child for

whom child support is being awarded,” OCGA § 19-6-15 (f) (5) (C). After this,

or any other such adjustments are made, the trial court derives a presumptive

      the parent has no legal obligation to support.

                                               12
amount of child support. OCGA § 19-6-15 (b) (2)-(7). See also OCGA § 19-6-

15 (a) (19). It is at this point that a deviation from the presumptive amount of

child support, if any, is applied. OCGA § 19-6-15 (b) (8). See also OCGA §

19-6-15 (i). And, it is such deviations for which written findings are required

under OCGA § 19-6-15 (c) (2) (E). See Carr-MacArthur v. Carr, 296 Ga. 30,

35-37 (3) (764 SE2d 840) (2014); Strunk, supra. But, any consideration of a

theoretical child support order for a qualified child is accounted for in the

presumptive child support calculation; it is not a deviation from the presumptive

amount of child support. While there is a requirement that the trial court’s final

order include a written finding setting forth “how the best interest of the child

who is subject to the child support determination is served by deviation from the

presumptive amount of child support[,]” OCGA § 19-6-15 (c) (2) (E) (iii)

(emphasis supplied), there is no such requirement in OCGA § 19-6-15 (f) (5)

(C), and the fact that both subsections apply a “best interest of the child”

consideration does not impose such a requirement. To the extent that Adame v.

Herndandez, 327 Ga. App. 869, 874 (3) (b) (761 SE2d 402) (2014), holds that

the trial court must support, with written findings, its exercise of discretion and

consideration of “the best interest of the child for whom child support is being

                                        13
awarded” when applying a theoretical child support order under OCGA § 19-6-

15 (f) (5) (C), it is hereby overruled.



                              Case No. S14A1673.



      7. Repeating the arguments advanced in Division 1, supra, Neal asserts

that the change in custody as to his daughter with Jennifer was predicated solely

on his sexual behavior, and that doing so was error. However, the trial court

based its ruling as to the change of custody of Neal’s daughter on similar

considerations as those pertaining to the change in custody of his son, and as

noted, was empowered to do so. See Division 1, supra. Neal notes that the trial

court, at one point during the proceedings, remarked that Neal’s son had been

exposed to repercussions from Neal’s conduct, but that the court was “[n]ot

sure” that Neal’s then seven-year-old daughter “really knows what happened,”

and Neal asserts that there was thus no showing of harm to his daughter, and no

showing of a change in condition warranting a change in custody. However, in

addition to the considerations discussed in Division 1, supra, we note that it is

not necessary that a child already be harmed by a changing circumstance before

                                          14
a trial court may consider it in evaluating the best interest of the child; the

court’s determination can include consideration of how a changing circumstance

is likely to produce a change in the best interest of the child. See Bodne v.

Bodne, 277 Ga. 445 (588 SE2d 728) (2003), which dealt with one parent’s

planned move to another state. See also In the Interest of R.E.W., 220 Ga. App.

861, 863 (471 SE2d 6) (1996). There was also evidence that Neal attempted to

manipulate his daughter against Jennifer, and Neal fails to show error on this

point.

         8. On September 26, 2013, the trial court entered its temporary order

setting child support for Neal’s daughter at $2,000.00 per month. Other than the

style of the order, it is identical to that entered in Hibbard’s case the same day,

and thus suffers from the same infirmity. See Division 3, supra. Accordingly,

this case too must be reversed and remanded for entry of an order that complies

with OCGA § 19-6-15.

         9. Neal’s contention that the trial court erred in imputing income to him

is unavailing. See Division 4, supra.

         10. On November 14, 2013, the trial court entered its final judgment

modifying child support in this case, with Schedule B showing as an adjustment

                                         15
to his gross monthly income a preexisting child support order with a monthly

support obligation of $748.75 for Neal’s son. See OCGA § 19-6-15 (b) (2) (B),

(f) (5) (B). Neal contends that the court should have used the figure $1,774.00

instead, as that was the obligation that the court ultimately imposed upon Neal

in the companion case regarding his son. However, this is incorrect; that figure

was set forth in an order on November 21, 2013. As noted, a “preexisting

order” is

       (A) An order in another case that requires a parent to make child
       support payments for another child, which child support the parent
       is actually paying, as evidenced by documentation as provided in
       division (f) (5) (B) (iii) of this Code section; and
       (B) That the date and time of filing with the clerk of court of the
       initial order for each such other case is earlier than the date and time
       of filing with the clerk of court of the initial order in the case
       immediately before the court, regardless of the age of any child in
       any of the cases.

OCGA § 19-6-15 (a) (18). See Division 6, supra. Accordingly, the not-yet-

ordered obligation of $1,774.00 per month could not be considered a preexisting

order, and the trial court did not err in using the figure imposed by the original

divorce decree in Case Number S14A1669.4


       4
       We need not consider whether the infirm temporary order of child support filed on
September 26, 2013, see Division 3, supra, should have been considered a preexisting order.
Under OCGA § 19-6-15 (f) (5) (B) (iii), adjustments are permitted “only to the extent that the

                                               16
       10. The trial court’s final judgment modifying child support found that

Neal was obligated to pay Jennifer $450.00 per month in addition to his

prospective child support obligation to compensate her for $5,334.00 “in arrears

under the divorce decree for medical bills, extracurricular activities, and child

care.”5 Neal contends that the divorce decree required that these expenses be

split equally between the parties, Jennifer contends that the divorce decree

required that they all be paid by Neal, and the evidence accepted by the trial

court rested on the premise that the responsibility for these expenses was

entirely Neal’s. However, neither party cites to specific pages of the record on

which these provisions may be found, see Rule 19, and our examination of the

decree, incorporated child support addendum and associated worksheet reveals

that at least some of the expenses for which the trial court found Neal liable for

arrears were to be split equally between the parties. Accordingly, on remand,

the trial court must recalculate the award for arrears. See Blair v. Blair, 272 Ga.


payments are actually being paid as evidenced by [specified] documentation . . . .” Neal does not
argue that the figure of $2,000.00 set forth in the temporary order should have been used, does
not assert that he submitted the specified documentation showing actual payment under that
directive, and no such documentation appears in the record.
       5
        We note that, in connection with the modification action, Jennifer had filed a petition to
find Neal in contempt for, inter alia, failure to pay required expenses. See Strunk, supra at 283-
285.

                                                17
94, 97 (3) (527 SE2d 177) (2000).

      11. The court awarded attorney fees to Jennifer for both the child custody

proceedings, OCGA § 19-9-3 (g), and the child support proceedings, OCGA §

19-6-15 (k) (5). See Viskup v. Viskup, 291 Ga. 103, 106 (3) (727 SE2d 97)

(2012). At different times during the proceedings, Jennifer was represented by

two separate attorneys, first Clay Jolly and then Jenna Matson. Although Neal

asserts that no fee award was warranted, reasonable attorney fees may be

ordered “to be paid by the parties in proportions and at times determined by the

judge” under OCGA § 19-9-3 (g), and “as the interests of justice may require”

under OCGA § 19-6-15 (k) (5). The record as it stands supports the court’s

determination that awarding fees under the statutes is appropriate.

      As to the fees due for Matson’s representation, Neal urges the award

includes amounts that should not have been embraced in the court’s final award

of attorney fees, issued after a hearing held on October 11, 2013. At a prior

hearing on August 29, 2013, Matson presented evidence of the costs of her

representation of Jennifer to that date. Although the need for Matson to

continue to put forth efforts to represent Jennifer prior to the hearing of October



                                        18
11, 2013 would appear obvious,6 Neal contends that he did not receive notice

that evidence of additional attorney fees for Matson would be presented at that

hearing, only that Jolly’s fees would be addressed. Neal did not raise any issue

regarding notice before Matson presented her evidence as to costs of her

representation since the prior hearing; in fact, it was not until Neal had

completed his cross-examination of Matson about these fees that he raised the

issue, at which point the court deemed any objection based on notice to have

been waived. Although Neal contends that the court did not afford him an

opportunity to object to the lack of notice before he completed his cross-

examination, the record reveals no such impediment, and the trial court did not

err in finding that Neal had waived the objection. See Spearman v. Georgia

Bldg. Auth., 224 Ga. App. 801, 805 (2) (42 SE2d 463) (1997); Jackson v. State,

217 Ga. App. 485, 488 (4) (a) (458 SE2d 153) (1995).

       As to the fee award for Jolly’s representation, during the hearing on

October 11, 2013, Neal objected to Jolly’s claim for attorney fees, and his



       6
         On August 29, 2013, Neal filed three additional pleadings in the case, including one
which moved to strike what he alleged were Matson’s “false statements,” requested sanctions
against Matson for alleged violations of the Rules of Professional Conduct of the State Bar of
Georgia, and demanded that the case be assigned to another judge.

                                               19
testimony in support thereof, on the ground that Jolly had withdrawn from his

representation prior to trial, and prior to filing his independent claim for attorney

fees. However, Neal fails to cite any authority for the proposition that attorney

fees cannot be awarded under the relevant statutes for one who has withdrawn

from representation; the statutory language that fees may be ordered “to be paid

by the parties in proportions and at times determined by the judge,” OCGA §

19-9-3 (g), and “as the interests of justice may require,” OCGA § 19-6-15 (k)

(5), would seem to encompass such a situation. Neal fails to show that the

statutory conditions are not met when an attorney withdraws before completion

of the case, without first submitting evidence in support of the as-yet-

unaddressed fee request; after all, but for the statutory provisions, Jennifer

would be responsible for all of her attorney costs, Viskup, supra, necessarily

including fees incurred before the withdrawal of her first counsel.

      Judgments affirmed in part and reversed in part, and cases remanded with

direction. All the Justices concur.




                                         20
