Cynthia A. Day v. Samuel M. Day

── Cynthia A. Day v. Samuel M. Day ── Court: Court of Appeals of Georgia Date: June 03, 2026 Category: General FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules June 3, 2026 In the Court of Appeals of Georgia A26A0256. DAY v. DAY. BARNES, Presiding Judge. We granted Cynthia Alexandria Day’s (“the mother”) application for discretionary review of the denial of her motion to set aside the trial court’s order granting Samuel Michael Day’s (“the father”) petition for modification of child custody and child support. She now appeals, contending that the trial court erred in finding that there were no nonamendable defects on the face of the record or pleading and in improperly finding that a change in circumstances related to the parties’ income supported a modification in custody. For the following reasons, we affirm in part and reverse in part the trial court’s judgment.  This Court reviews a lower court’s “ruling on a motion to set aside for abuse of discretion. However, where the facts are undisputed and the issues presented on appeal involve questions of law, we review [that] ruling de novo.” Davis v. Crescent Holdings & Investments, 336 Ga. App. 378, 378 (785 SE2d 51) (2016). Here, the facts relevant to the mother’s arguments demonstrate that the couple was divorced in 2021 and have a daughter who was born in 2020. The settlement agreement, parenting plan, and child support worksheet were incorporated into the final judgment and divorce decree. The father and mother were required to pay child support of $1,274 and $816 per month, respectively, and per the parenting plan, the parents shared legal custody and the mother had primary physical custody of the child. The father was given visitation every other weekend from 10:00 a.m. on Saturday until 8:00 a.m. Monday morning. He also received overnight visitation on Wednesdays and Fridays beginning at 5:00 p. m. and ending at 10:00 a. m. the following day. Additionally, the parenting plan required the parties to make joint decisions as to the child’s education, non-emergency health care, religion, and extracurricular activities. In the event there was a disagreement, however, the mother was designated the final decision-maker. 2  The father filed a petition for modification of custody, parenting time, and child support in December 2023 alleging a “material change in conditions and circumstances which substantially affects the best interests of the Minor Child.” Specifically, the father sought joint physical custody of and final decision-making authority on all major decisions for the child. He also requested a modification of child support to reflect both a substantial increase in the mother’s income and any changes in custody and parenting time. Following an evidentiary hearing, and although finding that “since the entry of the Final Judgment and Decree in the parties’ divorce action, there has not been a material change in conditions and circumstances which substantially affects the best interests of the [child,]” the trial court entered a modification order that continued joint legal custody of the child with both parents and continued with the mother as primary physical custodian, but increased the father’s parenting time, and modified the decision-making terms from the earlier parenting plan. The modification order also decreased the father’s child support. In support of the modifications, the trial court found that the parties had acknowledged they did not follow the parenting time schedule currently in place, but 3 instead made