Georgia law generally holds that a child support judgment is enforceable until modified, vacated, or set aside. Consequently, a basic rule provides that a child support judgment cannot be modified retroactively; it may be modified on a prospective basis only.(1) This article explores limited equitable exceptions to that rule which the appellate courts of Georgia have recognized.
Ordinarily, a child support obligor must continue making monthly payments even when the child is not living with the other parent, where the child has not a) reached its majority, b) become self-supporting, or c) married or died (any of which would cause the payments to cease).(2) A parent obligated to pay child support “may not unilaterally reduce the support payment by any amount even though one child subsequently decides to begin living with him and in doing so is in fact supported by him.”(3)
Applying Georgia’s general rule, if a parent does unilaterally reduce his support payment, the prohibition against retroactive modification will preclude an order for reimbursement of child support payments made prior to entry of a judgment modifying child support.(4) For example, in one case, minor children moved in with their father, the noncustodial parent, in January 2014, after their mother physically abused them and temporary protective orders were issued. In February 2014, father petitioned to modify child custody and child support. On February 18, 2014, the trial court entered a temporary order retroactively terminating father’s child support obligations to January 31. The court’s subsequent final order required mother to pay father child support, effective February 1. The court also denied father’s request for an order requiring mother to reimburse him for the child support payment he made in January while the children were living with him. In reversing the trial court, the Court of Appeals found error in the retroactive termination of father’s child support obligation. The Court, however, found no error in the denial of father’s reimbursement request, holding that an order for reimbursement of the January support payment would effectively be a retroactive modification of mother’s child support obligations.(5)
While no authority has yet authorized reimbursement of previously-made child support payments, a judicially-created exception allows a court, under limited circumstances, to credit – against arrearages owed for nonpayment – voluntary overpayments of child support made by the child support obligor.(6) In the case which originally recognized that exception, a divorce decree awarded child support to a mother during the periods when she had physical custody but did not require the father to pay child support during the summer months when he had custody. After their divorce, the parents agreed that father would temporarily assume custody of the children while mother returned to school to complete her education. Father did not pay child support to mother during that time, based on his understanding of the divorce decree and his understanding of the parties’ oral agreement. After mother obtained an execution against father for unpaid child support, father appealed, and the Georgia Supreme Court ultimately agreed that the execution was improperly granted.(7)
In so holding, the Georgia Supreme Court created an exception to the rules that parties to a divorce decree cannot by private agreement modify the terms of that decree, and that a father is not entitled as a matter of law to a credit in child support arrearages for voluntary expenditures made by him. The Court recognized equitable exceptions under particular circumstances, provided that an allowance for voluntary expenditures would not do an injustice to the mother. Included among those equitable exceptions were “situations where the mother has consented to the father’s voluntary expenditures as an alternative to his child support obligation… or where the father has been in substantial compliance with the spirit and intent of the divorce decree, for example, where he has discontinued child support payments while he had the care and custody of the children and supported them at the mother’s request.”(8) The Court expressly distinguished those exceptions from, and held that a father would not be entitled to credit in computing arrearages in, “those instances where the father has made voluntary overpayments of the child support due and owing without request or consent by the mother.”(9)
Consequently, recognizing an “unusual combination of facts” involving a) a joint custody divorce decree containing no support obligations by father during the months he was to have custody, b) an agreement by father to assume custody of the children in order for mother to further her education, c) father’s sole support of the children while he had temporary custody, d) father’s compliance with his support obligations except during that time period, and e) father’s compliance with the intent and spirit of the divorce decree during the period of his temporary custody, the Georgia Supreme Court held that “it would be inequitable to require the appellant to pay again for maintenance he has already supplied at the appellee's request.”(10)
The Court closed its opinion with an explicit caveat: “We note in passing that the holding in this case is limited to the unusual combination of facts we had to consider. We are by no means authorizing blanket modification of divorce decrees by private agreement. Under normal circumstances, Code Ann. § 30-220 provides the proper method by which child support provisions of a divorce decree may be revised or modified.”(11)
In a subsequent case, our Supreme Court reiterated the limited extent of its prior holding. Noting “that in certain rare instances where equity required it, a father may be given credit for child support expenses he paid although the literal terms of the alimony award were not satisfied,” the Court nonetheless made clear that the dominant rule prohibits retroactive modification of child support awards, including an allowance of credit for payments previously made.(12) The Court further reiterated that its previously-stated exception was recognized where the father had in fact provided child support, where failure to allow him credit for such support would require double payment, and where there was no resulting unfairness to the mother or children.(13) Consequently, the Court held that a father required to pay for day care, as part of his child support obligation, was not entitled to a credit against his child support arrearages, for day care payments made by him to mother while the child’s grandmother watched the children at no cost. The Court found that the parties intended under their divorce decree that mother provide child care for the child and that the father pay for it. Mother provided the child care, albeit through her mother’s voluntary services, and father paid the amount agreed upon for this purpose. Therefore, father was not paying child support twice, and the situation did not meet the unusual circumstances where the support required under the decree has been provided in another form by the father.(14)
In yet another subsequent decision, the Georgia Supreme Court further clarified the limited extent of the exception it had created concerning retroactive modification of child support, holding:
"The rule set forth in Daniel applies only in those unusual cases when the parties have agreed to some modification of the divorce decree and equity requires that the noncustodial parent receive a ‘credit’ for the support the parent should have provided under the decree. Daniel does not support the use of such a ‘credit’ as a set-off against future child support, alimony, or property division payments. We find no reason to modify this rule.(15)"
There does not appear to be any recognized exception in Georgia permitting a credit or offset for child support payments made by a parent prior to entry of a modification order, where the parent had continued to make the requisite child support payments and was not in arrears.
(1) Moore v. McKinney, 335 Ga.App. 855, 856(1), 783 S.E.2d 373 (2016), citing Jarrett v. Jarrett, 259 Ga. 560, 561(1), 385 S.E.2d 279 (1989); and Rose v. Thorpe, 240 Ga.App. 834, 834, 525 S.E.2d 381 (1999). See also O.C.G.A. § 19-6-17(e).
(2) Clark v. Clark, 150 Ga.App. 602, 603-604, 258 S.E.2d 282 (1979).
(3) Thomas v. Thomas, 236 Ga. 311, 223 S.E.2d 691 (1976).
(4) Moore, supra, 335 Ga.App. at 857(1).
(5) Id., 335 Ga.App. at 857(1).
(6) Daniel v. Daniel, 239 Ga. 466, 238 S.E.2d 108 (1977).
(7) Id., 239 Ga. at 467-468.
(8) Id., 239 Ga. at 468.
(10) Id., 239 Ga. at 469.
(11) Id.; and O.C.G.A. § 19-6-15.
(12) Skinner v. Skinner, 252 Ga. 512, 314 S.E.2d 897 (1984).
(13) Id., 252 Ga. at 513-514.
(14) Id., 252 Ga. at 514-515.
(15) Reach v. Owens, 260 Ga. 227, 228, 391 S.E.2d 922 (1990).