In the Supreme Court of Georgia


                                                 Decided: May 11, 2015


                  S15A0573. MARLOWE v. MARLOWE.


      BENHAM, Justice.

      The parties to this case were divorced in 2007, and a child support order

was entered as part of the final judgment pursuant to which appellee Joseph

Andrew Marlowe (Husband) was to pay appellant Ronni Green Marlowe (Wife)

$992.00 per month for support of their three children. In 2013, Husband filed

a petition to modify the original child support award downward on the ground

that his income had diminished. Wife counterclaimed, seeking an upward

modification on the ground that she now had work-related child care expenses

that were not considered in the original child support award since at the time of

the original award the children were not attending daycare. The trial court

modified Husband’s child support obligation downward to $771.00 per month.

This Court granted Wife’s application for discretionary appeal for the purpose

of determining whether the trial court abused its discretion in determining the

amount of child support due in light of OCGA § 19-6-15. For the reasons set
forth below, we affirm in part and vacate in part.

       1. Wife first asserts the trial court applied the wrong figure from the

Georgia Schedule of Basic Child Support Obligations, set forth at OCGA § 19-

6-15 (o), for the support of the three children. We agree. The Child Support

Addendum attached to the trial court’s order recites that support is to be

provided for three children. Applying the schedule for the combined gross

income of these parents for three children, the basic child support obligation

from the table in OCGA § 19-6-15 (o) is $1,316.00. The worksheet on which

the trial court’s award is based shows a figure of $1,135.00, which is the figure

from the table for two children. This portion of the order is vacated and, on

remand, the trial court is instructed to revise its child support award accordingly

by considering the proper basic child support for three children and any other

relevant factors that may impact its final child support determination.

       We find no error, however, in the trial court’s adjustments for work-

related child care expenses entered on Schedule D of the Child Support

Worksheet.1 Testimony at the hearing established that the oldest child did not

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         At least, we find no error to Wife’s disadvantage; Husband asserts that an error was made
in Wife’s favor with respect to adjustments for work-related child care expenses, but he does not
challenge this finding on appeal.

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require work-related child care expenses because he received after-school and

summer day care from Husband and his family. Testimony also showed that

Wife received assistance from a government program for part of the child care

expenses, after which she paid the remaining $65 per week out-of-pocket for

child care expenses for both the younger children during the school year, and

$105.00 per week for both children during the summer months. Accordingly,

the evidence shows the trial court’s figure of $4,020.00 for annual child care

costs used in calculating the child support award was supported by the evidence

and did not prejudice Wife.2

       2. Wife asserts the trial court abused its discretion by failing to impute

income to Husband or to find he was willfully underemployed. Indeed, “the

trial court is empowered to impute income for willful or voluntary

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

Friday v. Friday, 294 Ga. 687, 689 (1) (755 SE2d 707) (2014). Evidence was

presented that Husband had earned significantly more in wages in past jobs than


       2
          If, in the future, Wife receives less in child care assistance as a result of her no longer
meeting the criteria for assistance, as her testimony showed she surmised, then avenues are available
to Wife to seek a further modification of the child support award. At the time of the trial court’s
order, however, the award appears to meet or exceed the evidence presented of current out-of-pocket
child care costs.

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in his current employment. At the time the original child support order was

entered, Husband’s adjusted gross monthly income was found to be $2,904.00,

whereas in the modification order now on appeal, his income was found to be

$2,166.67. Husband testified that, since the divorce, he had earned as much as

$22.00 per hour, at which point he was employed as an electronic access control

systems technologist. Testimony also established he was a certified law

enforcement officer, at which he would earn significantly more than he currently

earns, and that in the past he made money on the side by repairing computers

and installing electronic equipment for small businesses. The evidence shows

Husband voluntarily terminated some of the jobs he has held in the time since

the original child support order was entered.

      Relying upon Galvin v. Galvin3, Wife asserts that even if Husband’s loss

of income was involuntary, this alone is insufficient to prevent the trial court

from imputing income to him where, as here, she claims, “there is evidence of

prolonged unemployment and a dearth of evidence of [Husband’s] efforts to

obtain employment.”            In Galvin, this Court affirmed the trial court’s

modification order that was based, in part, upon the imputation of income to a

      3
          288 Ga. 125, 126 (2) (702 SE2d 155) (2010).

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father who had remained unemployed for over two years.4 The record in this

case, however, fails to show prolonged unemployment and, in fact, Husband

was employed at the time of the hearing in a job he had held for over one year.

The record contains evidence of Husband’s efforts to obtain employment at

those times in the past in which he had been unemployed either voluntarily or

involuntarily.

      By way of explaining his employment choices, Husband testified that, as

a result of the economic downturn since the date of the final divorce decree, the

last job he held in the access control systems industry paid only $2.50 more per

hour than his current job, and that he had voluntarily resigned from that position

because the job required him to work out of state, thus requiring him to travel

to Georgia on weekends at his own expense in order to spend time with his

children. He testified, without dispute, that employment in this field was

currently difficult to find. He further testified that his current position, paying

$12.50 per hour, offered him a steady and stable job with normal working hours

and weekends off, allowing him to spend time with his children and relieving

him from worry about being laid off for lack of work. According to Husband’s

      4
          Id. at 125 n. 1.

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testimony, he had not pursued a job in law enforcement because he did not

expect he would be able to control his schedule. He offered no reason for not

pursuing additional income by repairing computers in his spare time, other than

to point out that he was employed full time.

      Past income, alone, is not conclusive evidence of earning capacity. See

Herrin v. Herrin, 287 Ga. 427, 428 (696 SE2d 626) (2010) (reversing the trial

court’s upward modification of child support based upon a finding of

underemployment that was not supported by the evidence). Other factors to be

considered include a party’s education, training, and specialized skill; evidence

of suppression of income; the party’s assets and liabilities; and other funds

available to the party for paying child support. Id. Arguably, in this case

conflicting evidence was presented relating to other factors the trial court could

consider when making its determination on the parties’ requests for

modification. Evidence was presented regarding Husband’s training and skills

from which it could be found that Husband was capable of earning more income

than he was currently making, in a job that did not appear to require any

specialized skill. No evidence was presented regarding other assets or funds

available to Husband from which he could continue to pay the original amount

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of monthly child support award. And Husband’s testimony regarding the

reasons for his career choices and the decline in his earnings refuted Wife’s

assertion that he had intentionally suppressed his income in order to avoid his

child support obligation. “[T]his Court will not set aside a trial court’s factual

findings [in a child support proceeding] unless they are clearly erroneous, and

this Court properly gives due deference to the opportunity of the trial court to

judge the credibility of the witnesses.” (Citation and punctuation omitted.)

Autrey v. Autrey, 288 Ga. 283, 284-285 (2) (702 SE2d 878) (2010); see also

Walton v. Walton, 285 Ga. 706 (2) (681 SE2d 165) (2009). Given the evidence

presented in this case, we cannot say that the trial court’s findings regarding

Husband’s earning capacity were clearly erroneous. Instead, record evidence

supports these findings and no abuse of discretion in granting Husband’s

petition for downward modification is shown. See Strunk v. Strunk, 294 Ga.

280, 282 (1) (754 SE2d 1) (2013).

      Judgment affirmed in part and vacated in part, and case remanded with

direction. All the Justices concur.




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