With limited exceptions, and upon satisfaction of certain conditions, an appeal of a final judgment awarding alimony, child support, or other monetary relief in Georgia generally stays the defendant’s payment obligations while the appeal remains pending.(1) Affirmance of the final award on appeal ordinarily should obligate the defendant to pay all arrears accumulating since the date of entry of the appealed judgment.(2) But when an order for temporary alimony or child support preceded the final judgment in a case, different rules apply. This article explores the impact of a temporary award of alimony or child support on an appeal of the final award.
When the appeal of a final alimony or child support award stays that final judgment, any prior award of temporary alimony or child support remains in effect until the appeal has been decided and the case has been remitted back to the trial court, unless the trial court ordered otherwise.(3) The affirmed permanent award of alimony or child support takes effect commencing on the date of appellate remittitur to the trial court.(4)
Continuation of a temporary alimony/child support award pending appeal of the final award means that the temporary payments made during the appeal control. In other words, if the temporary alimony/child support award was higher than the permanent award, affirmance of the permanent award will not entitle the defendant to a credit for temporary payments in excess of the final judgment award.(5) By the same token, if the temporary award was less than then permanent award, affirmance of the final judgment will not obligate the defendant to pay the shortfall between temporary payments during the appeal and the higher permanent award.(6) If the appellate court reverses the permanent alimony/child support award, the defendant will not be entitled to reimbursement of payments made pursuant to the temporary award during the appeal.(7)
(1) O.C.G.A. § 5-6-46.
(2) See generally Nicol v. Nicol, 240 Ga. 673, 242 S.E.2d 129 (1978), overruled on other grounds by Robinson v. Robinson, 287 Ga. 842, 846-847(1), 700 S.E.2d 548 (2010); and Tanner v. Wilson, 184 Ga. 628, 633-634, 192 S.E. 425 (1937).
(3) Robinson, supra, 287 Ga. 842, 846-847(1), 700 S.E.2d 548 (2010).
(5) See Robinson, supra. Cf., Nicol, supra, 240 Ga. 673.
(6) See Robinson, supra. Cf., Dubois v. Dubois, 250 Ga. 271, 297 S.E.2d 277 (1982), overruled by Robinson, supra, 287 Ga. at 846-847(1).
(7) See generally Robinson, supra; and Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945).