Grant of father’s motion for upward modification of mother’s child support obligation, REVERSED, as evidence did not support trial court’s ruling that mother had ability or means to earn amount, which trial court found that she could earn per month and upon which it based award; it was undisputed that mother’s income and earning capacity ad dramatically decreased from what trial court notes and projected in 2005 order and from what she actually earned in 2006 and 2007; in 2008 mothers was earning $13 per hour for gross income of approximately $1.5K per month, of which $1K went towards her monthly day care bills,  her hours as office administrator for dental practice could not be increased due to economic turn down, and she could not pursue career selling real estate, because of depressed real estate market and her inability to fund out-of-pocket expenses required of real estate agent; no evidence showed that mother was willfully underemployed, or that she was voluntarily suppressing her income to avoid child support payments; evidence did not support finding that mother was not legally pursuing biological father of her illegitimate child for child support as means of suppressing her income; $2.5K attorneys’ fee award for father, REVERSED, as evidence did not support trial court’s determination that mother had ability to pay such amount; case remanded to trial court for entry of award, which evidence supports.

Herrin v. Herrin, S10A0384 (06/28/2010), 10 FCDR 2063

From:  Fulton County Daily Report, 07/09/2010.