Jeffrey Wayne Holloway Husband and Rachel Rebecca Holloway Wife separated and entered into a separation agreement dated December 9, 2009. Pursuant to this agreement, Husband took custody of the couple’s younger daughter, Railey, and Wife took custody of the couple’s older daughter, Kate. Using the mandatory child support guidelines of OCGA § 19-6-15, it is undisputed that Husband owed Wife child support in the amount of $550 per month, and Wife owed Husband $1,568 per month. The parties agreed that Wife would pay Husband $1,000 per month, the result of subtracting Husband’s obligation to Wife and rounding the result to an even number. To set forth this understanding, the separation agreement states: Wife shall pay to Husband as child support for the support and maintenance of Railey Rebecca Holloway the sum of $1,000 per month . . . . Because of the difference in income, Husband shall not be required to pay Wife for the support and maintenance of Elizabeth Kate Holloway. In addition, Husband agreed to maintain health insurance on both children and has properly done so. The parties agreed, however, that this payment by Husband for insurance would not be used to offset any of his support obligations on required child support worksheets. The record shows that, prior to signing the separation agreement, Wife, a well-educated pharmacist, consulted with an attorney who went over the document with her line by line. At all times, Wife indicated that she fully understood the agreement, and she signed it to achieve finality as soon as possible. Subsequently, the trial court incorporated the quoted language of the agreement into the final divorce decree, which was issued on January 11, 2010. On February 1, 2010, Wife filed a motion for a new trial or, in the alternative, to set aside the divorce decree. As the basis for her challenge, Wife argued that the divorce decree contains a deviation from the child support guidelines without including any findings stating why the deviation was appropriate. Based on evidence that the agreement was the product of Wife’s voluntary negotiation, the trial court denied Wife’s claims, stating that the $18 differential from the guidelines was not a proper basis for negating the divorce decree. The trial court also assessed attorney fees against Wife in the amount of $1,000. Wife appeals these rulings.
1. As an initial matter, we must point out that a motion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon. Under OCGA § 9-11-52 c, a motion for new trial may be used in addition to the filing of motions to amend in attacking fact findings, by the court in non-jury trials, contained in the entered judgment. Examples of defects in general which have been held amendable and not subject to motion to set aside include matters such as the court’s failure to state findings of fact and conclusions of law. Therefore, a motion for new trial, but not a motion to set aside, is a proper means by which the movant can complain of the trial court’s failure to comply with the child support guidelines in OCGA § 19-6-15, including the failure to make findings required thereby. Citations and punctuation omitted. Kuriatnyk v. Kuriatnyk , 286 Ga. 589, 591 2 690 SE2d 397 2010.
