Atlanta Divorce Attorney Blog

As a seasoned family law attorney, I am often asked if a parent can get a retroactive child support modification in Georgia. For example, if one parent does not agree to the other’s request for an increase in child support, the other parent may threaten to go to court and get the child support increase retroactively, starting from the date of the original divorce decree. Fortunately, in Georgia, there are no retroactive modifications of child support so this threat holds no weight.

In Georgia, a parent can only get a child support modification going forward, from the date of the modification. The court cannot and will not modify child support from the date of the divorce decree. This is because a parent can only receive a child support modification if “there is a substantial change in either parent’s income and financial status or the needs of the child.” OCGA §19-6-15(k)(1). Any substantial change alleged, naturally, must not have existed at the time of the divorce. Thus, practically speaking, even if a parent is awarded an increase in child support, the other parent will not have to make up that difference for child support payments already made.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

In Georgia, if my income increases, am I barred from obtaining a downward modification in child support? The short answer is no, now for the complete story……

According to the Official Code of Georgia Annotated regarding child support modification: "Except as provided in paragraph (2) of this subsection, a parent shall not have the right to petition for modification of the child support award regardless of the length of time since the establishment of the child support award unless there is a substantial change in either parent's income and financial status or the needs of the child." O.C.G.A. § 19-6-15.

Upon reading the above cited statute, many take this law to mean that an obligated parent may not seek a reduction in the amount of their child support obligation unless their income has decreased. However, this is not necessarily the case. Nothing in the statute requires a decrease in the obligated parent’s income. The statute only requires a “change in either parent’s income and financial status or the needs of the child.”

In fact, the Supreme Court of Georgia gives even more guidance on this exact issue in its ruling in Miller v. Tashie, 265 Ga. 147,149 (1995). In Miller, the Georgia Supreme Court specifically pointed out that there is no precedent that holds that “an increase in income would bar a petition for modification or even that such an increase would absolutely preclude a trial court's conclusion that the financial status of the obligor parent had changed in such a way as to warrant reconsideration of the amount of the support obligation.” Id. Based on this observation, the Court held that dismissal of a modification petition on the ground that an increase in the obligated parent’s income barred the petition was reversible error. Id.

The Georgia Supreme Court’s ruling in Miller is quite clear, an obligated parent is not barred from seeking a reduction in the amount of their child support obligation simply because of an increase in income. However, in order for an obligated parent to prevail in a child support modification action, the obligated parent, or petitioner must show that there has been some change in his or her financial status.

According to the Georgia Supreme Court, financial status is more than income. Moccia v. Moccia, 277 Ga. 571, 572 (2004). Financial status encompasses an individual’s overall financial circumstances. Id. Thus, even if an obligated spouse’s income increases, he or she may still be able to obtain a downward modification of child support if they show that for some reason, be it changed living circumstances, increased financial obligations, debt, or other hardship, that their financial status has declined.

By A. Latrese Martin, Law Clerk, Meriwether & Tharp, LLC

In Georgia cases where a child support payor seeks a downward modification of his child support obligation, the payor often asks at what rate the child support obligation continues to accrue while the modification action is pending. The Court of Appeals of Georgia recently heard a case that clarifies this issue a bit. Morgan v. Bunzendahl, A12A0290 (2012). In Morgan v. Bunzendahl, the father was found in contempt for failing to make payments totaling $10,392 on a previous contempt obligation and the trial court ordered him incarcerated until he purged himself of the contempt. Id. at 2. Shortly thereafter, the father filed a petition to modify his child support obligation, due to recent financial setbacks in his construction business. Id. A year later, the trial court granted the petition, but denied the father’s request to make the modification retroactive to the date the father filed the petition because it was not allowed under Georgia law. Id. at 3. The father appealed.

The Court of Appeals of Georgia agreed with the father and vacated the trial court’s order. Specifically, the Court found that the statute relied on by the trial court, OCGA §19-6-15(j)(1), “does not provide that the modification itself is ‘retroactive,’ and if the trial court only determines that the support payment should be modified, OCGA §19-6-15(j) is inapplicable because the trial court determines only how much the petitioner will owe each month from that day forward.” Id. at 4-5. In other words, if it is just a modification action and nothing else, the part of the statute that allows retroactivity does not apply because a modification action does not determine “whether and how much the petitioner is in arrears on his child support payments.” Id. This arrearage is considered in a contempt action, however, and, thus, under OCGA §19-6-15(j), “the child support oligation of a parent facing involuntary adversity ‘shall not accrue’ from he date of service of the modification petition.” Id.

Specifically, the Court held that “when calculating back child support related to a contempt citation, that portion of the obligation attributable to lost income did not continue to accrue after [the father] served his modification petition on the custodial parent.” Id. at 1.

The Supreme Court of Georgia recently reemphasized long standing Georgia law prohibiting a petition for modification of child support from being filed within two years of a previous petition for modification by the same parent. Bagwell v. Bagwell, S11A1316 (2012). In that case, the father filed a petition for downward modification of child support in May 2010, “alleging a substantial decrease in his income and financial status since the divorce, which decreased his ability to pay the previously awarded child support.” Id. After a hearing, the trial court granted the mother’s motion for sanctions due to the father’s failure to respond to discovery and dismissed the modification petition. Id. at 2. Two weeks later, the father filed another petition for downward modification of child support, with the same allegations as the previous petition. Id. at 2-3. The mother moved to dismiss the second petition in accordance with OCGA §19-6-15(k)(2) which states: “No petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent except where (A) A noncustodial parent has failed to exercise the court ordered visitation; (B) A noncustodial parent has exercised a greater amount of visitation than was provided in the court order; or (C) The motion to modify is based upon an involuntary loss of income.”

Despite this clarity in this statute, the trial court allowed the second petition to continue “in the interest of fundamental fairness and judicial economy,” since it characterized the first order as a sanction, rather than a dismissal. Id. at 3. The mother appealed, and the Supreme Court of Georgia agreed with the mother.

The Court first held that the trial court’s dismissal of the father’s first petition was a final order for the purpose of OCGA §19-6-15(k)(2) because it was an involuntary dismissal, which “constitutes an adjudication upon the merits of a claim, unless the trial court in its order of dismissal specifies otherwise.” Id. at 4; OCGA §9-11-41(b). Further, the Court stated that classifying the dismissal as a sanction does not make a difference, as a dismissal for this reason is still adjudication on the merits. Id. at 5.

The Court additionally struck down the father’s argument that he had an involuntary loss of income and should, thus, fall under an exception to the two-year rule for two reasons. First, the father did not specifically invoke this exception in his second petition. Second, he would have had to have an involuntary loss of income in the two weeks between the dismissal of his first petition and the filing of his second petition. Id. at 7-8.

In reversing the trial court’s ruling, the Supreme Court of Georgia also held that there was no merit to the trial court’s judicial economy argument. Allowing the second modification action to proceed under these circumstances, it held, “is tantamount to abuse of the judicial system.” Id. at 9.

Atlanta family law attorneys are often asked about lowering a party's child support obligation. I was recently asked how a person could adjust their child support obligation where the ordered amount is so high that they could not pay rent or other bills.

In order to have child support adjusted or modified, a parent needs to file for a modification of child support. To have a chance at being successful on this request for modification, the parent must show a substantial change in circumstances. For example, if a parent was making $50,000 a the time the child support was set, but, after that point, the parent lost their job (through no fault of their own) and obtained new employment making only $30,000, that parent could argue that there has been a substantial change in circumstances and child support should be reset accordingly. There must be a substantial change in the income or financial circumstances of either parent, or the needs of the children; otherwise, a court will not modify the child support obligation.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

In Georgia, child support payments are calculated to cover all the minor children in a household. However, when an older child reaches 18 years of age (aka “ages out”), the child support obligation changes to reflect the fewer number of minor children in the household. In a case that has been fully resolved, filing a Modification of Child Support is usually necessary to adjust the child support figure. For those currently going through a divorce and expecting their oldest child to age out in just a few months or years, can the parties agree for an automatic adjustment of child support to occur when the oldest child ages out? How do Judges in Georgia perceive such automatic adjustments in Settlement Agreements?

At a conference for matrimonial lawyers held by the Georgia State Bar, a few Judges responded to this exact question. All of the Judges on this panel, including a Judge from Cobb County, Fulton County, and Gwinnett County, all indicated that they would allow the automatic adjustments only if the change was foreseeable. For these Judges, this meant that the oldest child would age out within a matter of 6-8 months. If not within this time frame, these Judges all indicated that they would be unlikely to accept automatic adjustments and that filing a Modification of Child Support would be the proper procedure.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

There was recently a new article on ajc.com about the lawsuit against NFL receiver Terrell Owens in Fulton County for failure to pay child support. Lawyer: T.O. could face jail for failure to pay child support, by Christian Boone, The Atlanta Journal-Constitution, September 8, 2011. As mentioned in my previous blog on the subject, one possible punishment for the willful failure to pay child support is incarceration – and it looks like the plaintiff’s lawyer has petitioned the trial court for just that. According to the article, the original contempt petition for June and July child support payments was withdrawn after the full amounts were paid. However, now Owens appears to have failed to pay support for August or September, which is the subject of the current lawsuit.

The plaintiff’s attorney says that Owens has given no reason for his refusal to pay. The article further states that, though he is not currently signed by any NFL team, he is starring in a reality television show and his estimated monthly income is $666,000. If this is true, he should be able to afford the $5,000 child support payments. The case is currently pending, and a judge will decide whether to jail Owens or force him to make all back payments along with attorney’s fees.

The Georgia Court of Appeals recently upheld an order for supervised visitation, despite the father's allegations of 17 errors by the trial court. Gottschalk v. Gottschalk, A11A0565 (2011). In that case, the parties consented to joint legal and physical custody of their children in their divorce action, with detailed visitation provisions in the final decree. Id. at 3. About a year later, after the father’s arrest, the mother filed a petition seeking supervised visitation for the father. Id. The trial court appointed a custody evaluator, who was to write a report to be distributed ONLY to the court, guardian ad litem and the parties, except upon the court’s express permission otherwise. Id. at 4. During the hearing, the trial court discovered that the father’s expert witness had received a copy of the custody evaluation, and barred the expert from testifying about it since the father had not received express permission to disclose it to him. Id. at 7. The trial court ultimately granted the petition for supervised visitation, holding, with significant factual support, that the father’s “conduct was potentially dangerous for the children.” Id. at 9. After the father’s motion for a new trial was denied, he appealed.

Several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. In one enumeration of error, he alleges “the trial court erred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used.” Id. at 17-18. The Georgia Court of Appeals disagreed, holding that the orders were “very clear that the report could be disseminated only to the parties, attorneys, and guardian unless otherwise allowed by the court,” and the language “is not susceptible to any other interpretation.” Id. The Court of Appeals also pointed out that parties consented to the order, and “both sides had previously sought and obtained permission to reveal the contents for the report to specific people.” Id. Thus, the Court was not at all sympathetic to this allegation. If the father had just gone through the proper procedure, his expert likely would have been permitted to review the report and testify about it.

In addition to addressing the final decision making issue in Avren v. Garten, the Supreme Court of Georgia also addressed the trial court’s dismissal of the mother’s petitions for contempt, and modification of custody, child support and visitation. Avren v. Garten, S11A0064 (2011). The mother contended that the trial court erred in dismissing these actions. Id. at 3.

The Supreme Court of Georgia disagreed with the mother, holding that the mother’s petitions for modification of custody, modification of visitation, and her petition for contempt were properly dismissed pursuant to OCGA §19-9-24(b), which “prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order.” Id. at 4. In this case, there was overwhelming evidence that the mother had left the house with the child on scheduled visitation days during the time in which the father was to pick up the child. Id. Under these circumstances, the Supreme Court of Georgia held that the trial court did not err when it dismissed these actions. Id. at 5.

The Supreme Court of Georgia also held that the mother’s petition for modification of child support was properly dismissed due to the “two-year rule.” This rule provides that “[n]o petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent.” OCGA §19-6-15(k)(2). In this case, the mother filed the current petition only 11 months after her previous petition for modification of child support. Id. at 6. Since it had been less than two years, the mother's petition was properly dismissed. Id. at 7.