With certain exceptions, Georgia law precludes a child support obligor from seeking downward modification within two years from the date of the final order on that parent’s previous petition to modify child support.(1) The purpose of that limitation is to protect parents from excessive litigation over the same issues.(2) Even so, one explicit exception to the two-year limit applies to modification actions based on “an involuntary loss of income.”(3) This article explores the requisites for assertion of an involuntary loss of income, and the benefits and limitations derived from the assertion of such a claim.
Georgia law defines an involuntary loss of income and its significance to modification of child support as follows:
In the event a parent suffers an involuntary termination of employment, has an extended involuntary loss of average weekly hours, is involved in an organized strike, incurs a loss of health, becomes incarcerated, or similar involuntary adversity resulting in a loss of income of 25 percent or more, then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification, provided that service is made on the other parent. It shall not be considered an involuntary termination of employment if the parent has left the employer without good cause in connection with the parent's most recent work.(4)
In order to base a modification action on an involuntary loss of income, the obligor must have suffered the 25% or more income loss since the date of the ruling on that parent’s prior action to modify child support, or from the date of the divorce decree on an initial modification action.(5)
In order for the statutory relief concerning accrued child support to apply, two conditions must occur. First, the obligor must prevail in the modification action and obtain a judgment reducing his/her child support obligation. The mere filing of a modification action based on an involuntary loss of income does not entitle the petitioner to reduce the support obligation by the amount attributable to involuntarily terminated employment.(6) Second, the proceedings before the court must involve more than a petition for modification of child support. Because a judgment modifying child support is not retroactive, the nonaccrual of child support attributable to lost income can only apply where a claim of nonpayment of previously-owed child support has been asserted in the modification action (typically, via a contempt claim against the obligor).(7)
The Georgia Supreme Court detailed the method used to calculate the nonaccrual of child support attributable to involuntarily lost income in the case of Friday v. Friday.(8) There, a father filed a petition for downward modification of his $2,000 per month child support obligation on the grounds of involuntary loss of income. Upon filing the action, father unilaterally began paying $179 per month, based on his calculation of child support owed using his reduced income. Mother responded with a contempt petition against father for nonpayment of child support. Fifteen months later, the court granted father’s petition by reducing his child support obligation to $1,040 per month. The court also found father in contempt for failing to pay child support owed over the fifteen months. Because the trial court reduced father’s support obligation from $2,000 per month to $1,040, it necessarily found the $960 difference as the amount attributable to father’s involuntarily lost income. Father accordingly could not be held in contempt for failure to pay $960 per month of his support obligation for fifteen months. Nonetheless, he could be, and properly was, held in contempt for underpaying child support by a total of $12,915 over fifteen months: i.e., fifteen underpayments of $861 ($1,040-$179).(9)
(1) O.C.G.A. § 19-6-15(k)(2).
(2) Bagwell v. Bagwell, 290 Ga. 378, 379-380, 721 S.E.2d 847 (2012), citing Wilson v. Wilson, 270 Ga. 479, 480(1), 512 S.E.2d 255 (1999).
(3) O.C.G.A. § 19-6-15(k)(2)(C).
(4) O.C.G.A. § 19-6-15(j)(1).
(5) Bagwell, supra, 290 Ga. at 381. See also Friday v. Friday, 294 Ga. 687, 755 S.E.2d 707 (2014).
(6) Friday, supra, 755 S.E.2d at 711(2).
(7) Morgan v. Bunzendahl, 316 Ga.App. 338, 339-340(2), 729 S.E.2d 476 (2012) (physical precedent only). See also Galvin v. Galvin, 288 Ga. 125, 126(1), 702 S.E.2d 155 (2010).
(8) Friday, supra, 294 Ga. 687, 755 S.E.2d 707.
(9) Id., 755 S.E.2d at 712.