Be Neutral
A Publication of the Georgia Office of Dispute Resolution

Case Watch: For Mediators

The following case analysis is the second in a regular series we will publish to help neutrals broaden their knowledge of rulings of Georgia’s appellate courts that may affect your practice. Remember: mediators should not give legal advice or opinions.

Review of S09A0227; 285 Ga. 319, Evans v. Evans, decided April 28, 2009.  Appeal to Georgia Supreme Court of a ruling by Judge Shepherd Lee Howell, Bartow County Superior Court.

If you mediate for the public or for any county court programs, chances are that some of the vast number of family law litigants making their way through the courts will seek your help in preparing their child support worksheets.

Depending on the age of the children, the effect of even a small change to monthly support can be substantial when you add up the total support obligation over the 18 years or so that it may be in effect.  Lower-income parties depend on every penny to support their families, and they need as much as they can get, or keep.

Mediators can usually recognize financial numbers that are “hard” and thus clearly must be included in monthly gross income for purposes of child support calculation.  But some of the most heated negotiations arise over “soft” numbers, such as overtime pay, and whether to consider overtime pay in calculating child support.  The payor always has the same reason for not including overtime:  It is unfair since it is not guaranteed and would significantly inflate monthly gross income.  The payee always has the same reason for wanting it included:  It is unfair to ignore it since it is income.

            a. Who is right when parties cannot agree?

b. Should overtime (and other variable income) be considered in setting the amount of child support?

c. What is the fairest way to calculated variable, nonrecurring income so as not to create a windfall for one party at the expense (literally) of the other party?

The Evans case provides us guidance.  In Evans, the payor parent argued to the trial court that overtime income should not be included in child support calculations, and the Bartow County judge agreed.

Case not over yet.  The Georgia Supreme Court reversed and remanded the case to the trial court for a second hearing.  The Supreme Court held that yes, overtime pay should be included in calculating child support, and not only should it be included, it is required by statute to be part of the determination of gross monthly income.  To aid the trial court, the justices gave instructions on how variable income such as overtime pay should be calculated in setting the amount of child support:

“[Variable income] shall be averaged over a reasonable period of time consistent with the circumstances and added to the parent’s fixed salary or wages to determine gross income.  When income is received on an irregular, nonrecurring or one-time basis, the court may, but is not required to average or prorate the income over a reasonable specified period of time; or the parent may be required to pay as a one-time support amount a percentage of the nonrecurring income.”

In mediation, there is more time and flexibility for mediators to help parties explore different approaches that are “consistent with the circumstances” or equivalent to “one-time support amount as a percentage of the nonrecurring income.”  The parties have input in calculating income that includes overtime pay but ultimately results in a mutually agreed-upon support amount that one party can pay and the other can accept.

The Evans litigants’ experience – the time and money the parties spent for themselves and counsel to appear in the trial court, then to appear before the Supreme Court, and then to reappear in the trial court, only to experience the uncertainty of different rulings – is anathema to the goals of mediation.  The litigants paid the high price of a hard legal lesson that now all mediators, attorneys and parties can learn from.  Unfortunately, cases like Evans are not unique.  Fortunately, we mediators can continue to help parties avoid a multitude of issues that can prolong litigation and bleed them dry financially.


Mary Ellen Cates is an attorney and registered mediator in Avondale Estates, Ga.  She has practiced domestic law exclusively since 1985.  A divorce mediator since 1998, she is also a domestic arbitrator, and she has been appointed as special master for DeKalb County Superior Court.

Phone: 404-292-3803; fax: 404-292-1510; or