In Georgia, court judgments do not necessarily last forever. Statutory rules of dormancy in essence prevent the enforcement of a judgment to which no attempt at collection has occurred in the prior seven years. But do those dormancy rules apply to awards for equitable division, alimony, child support, and child custody in final decrees of divorce, any or all of which may not be fully effectuated within seven years of the judgment? This article explores the applicability of dormancy principles to divorce decrees.
Georgia’s dormancy rules are set forth in Section 9-12-60 et seq. of the Georgia Code. Under those rules(1),
(a) A judgment shall become dormant and shall not be enforced:
(1) When seven years shall elapse after the rendition of the judgment before execution is issued thereon and is entered on the general execution docket of the county in which the judgment was rendered;
(2) Unless entry is made on the execution by an officer authorized to levy and return the same and the entry and the date thereof are entered by the clerk on the general execution docket within seven years after issuance of the execution and its record; or
(3) Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made and due written notice of such effort specifying the time of the institution of the action or proceedings, the nature thereof, the names of the parties thereto, and the name of the court in which it is pending is filed by the plaintiff in execution or his attorney at law with the clerk and is entered by the clerk on the general execution docket, all at such times and periods that seven years will not elapse between such entries of such notices or between such an entry and a proper entry made as prescribed in paragraph (2) of this subsection.
Entry on the “general execution docket” refers to the recording of a Writ of Fieri Facias (Fi.Fa.), a legal instrument which authorizes a county sheriff to seize assets of a judgment debtor in satisfaction of the judgment.(2)
If a judgment is not satisfied in full within seven years of its issuance, the judgment creditor can revive it (i.e., maintain its enforceability) by recording a Fi.Fa. prior to the expiration of seven years since the last Fi.Fa. was recorded. The creditor should be able to continue that process indefinitely.(3)
Once seven years has elapsed since the last entry on the general execution docket, the judgment creditor has three years either to a) file an action in the county where the debtor resides to renew the judgment or b) file a motion for a “scire facias” in the suit where the judgment was obtained to revive the judgment.(4) If the judgment creditor fails to file a renewal action or revival motion within three years after a judgment has become dormant, the judgment will remain unenforceable thereafter.(5)
Applicability of Dormancy Rules to Divorce Decrees
In the field of family law, dormancy issues typically arise in the context of contempt actions. A former spouse will file a claim of contempt of the divorce decree against the other former spouse, and the defendant will defend the action on the basis that the divorce decree has grown dormant.(6)
The above dormancy rules, however, apply only to minimal portions of a divorce decree. For instance, awards of child support and alimony cannot grow dormant.(7) The dormancy statute also does not apply to provisions of a divorce decree requiring a spouse to perform an act or duty, rather than ordering payment of a sum of money.(8) For that reason, child custody and visitation provisions of a divorce judgment should not grow dormant. Nor should equitable division awards pertaining to the division of personal property become dormant.
Dormancy rules will apply to equitable division awards requiring payment of money. For example, a judgment for one spouse’s payment of retirement benefits to the other spouse as a property award may grow dormant.(9) Likewise, an order for one spouse to redeem the other spouse’s equity in the marital residence too can become dormant.(10) If, however, a court orders installment payments as equitable division, rather than a single lump sum payment, dormancy will be separately measured as to each installment, such that the dormancy period will run from the date each installment initially became due.(11)
(1) O.C.G.A. § 9-12-60.
(2) See https://www.hallcounty.org/216/Writ-of-Fieri-Facias-Personal-Property-L; and Bennett Elec. Co. v. Spears, 188 Ga.App. 502, 373 S.E.2d 286, 287 (1988).
(3) See generally Taylor v. Peachbelt Properties, Inc., 293 Ga.App. 335, 338-339(2), 667 S.E.2d 117 (2008).
(4) O.C.G.A. § 9-12-61. See also Parker v. Eason, 265 Ga. 236, 238, 454 S.E.2d 460 (1995) (Carley, J., concurring).
(5) Taylor, supra, 293 Ga.App. at 339(2).
(6) See, e.g., Holmes-Bracy v. Bracy, 808 S.E.2d 669 (Ga. 2017); and Parker v. Eason, 265 Ga. 236, 454 S.E.2d 460 (1995).
(7) O.C.G.A. § 9-12-60(d). See also Wynn v. Craven, 799 S.E.2d 172, 174 fn. 1 (Ga. 2017).
(8) Baker v. Schrimsher, 291 Ga. 489, 731 S.E.2d 646, 648(1) (2012).
(9) Bracy, supra, 808 S.E.2d at 670-671.
(10) Corvin v. Debter, 281 Ga. 500, 639 S.E.2d 477 (2007).
(11) Bracy, supra, 808 S.E.2d at 671.