Similarly to its provisions for modification of alimony (discussed in a prior article), Georgia law permits a parent to petition for modification of child support when “there is a substantial change in either parent’s income and financial status or the needs of the child.”(1) Governing law likewise permits, “upon motion, the temporary modification of a judgment for child support pending the final trial on the petition.”(2) This article discusses the rules governing temporary modification of child support in actions seeking modification of child support.

By statute, detailed child support guidelines for determining the amount of child support must be used when a court enters a temporary or permanent child support order in a contested or noncontested hearing involving the child support responsibility of a parent, or enters an order in a family violence protective action.(3) A 2012 decision of the Supreme Court of Georgia reaffirmed that the statutory child support guidelines apply to modification actions as well as initial determinations of child support, and explicitly cited the statutory requirement for application of the child support guidelines when entering temporary or permanent child support orders.(4)

Despite those seemingly clear assertions of statutory applicability, the Georgia Court of Appeals has issued an entirely different interpretation of the standards governing temporary modification of child support. A 2015 decision on an appeal of both a temporary and final order modifying child support held that the statute containing the child support guidelines applies only to final verdicts or decrees and not to temporary orders.(5) In so holding, the Court of Appeals omitted any mention of the statutory language and Supreme Court decision referenced above. The Court instead relied wholly on appellate decisions which either ignored that statutory language or applied a statute utilized for modification of child support and alimony orders rendered before July 1, 1977, the pertinent language of which continued afterwards only as to modification of alimony.(6) Yet, notwithstanding those obvious shortcomings, because our state Supreme Court has never addressed the Court of Appeals’ 2015 holding (to this author’s knowledge), trial judges conceivably may opt to issue temporary modifications of child support without application of the statute containing the child support guidelines, in continuing reliance on the Court of Appeals’ decision.

If a trial court does apply the statute containing the child support guidelines to a temporary modification of a child support order, then the court must make a threshold determination that a substantial change in either parent’s income and financial status or the needs of the child has occurred, and then find that temporary modification serves the child’s best interests.(7) The court will have to a) support its temporary order with certain required findings and b) calculate the temporary revised support sum in accordance with the child support guidelines (as a minimum rebuttable presumption).(8) When evaluating an alleged change in an obligated parent’s “income and financial status,” the court likely will apply the same interpretation employed for alimony modification: i.e., whether a change in the obligor’s ability to pay has occurred due to a change in either his income or financial status.(9) And when ascertaining an obligor’s ability to pay, the court may take into account that party’s earning capacity, rather than his current income.(10)

Presumably, as with alimony modifications, in situations where a court temporarily reduces a child support obligation but ultimately denies the modification petition upon final hearing, the paying parent will become obligated to repay the portion of the prior child support judgment which has not been paid since entry of the temporary order.(11)

(1) O.C.G.A. § 19-6-15(k)(1). (2) O.C.G.A. § 19-6-15(k)(4). (3) O.C.G.A. § 19-6-15(c)(1). (4) Wetherington v. Wetherington, 291 Ga. 722, 725-726(2)(a), 732 S.E.2d 433 (2012). (5) Hall v. Hall, 335 Ga.App. 208, 214(3), 780 S.E.2d 787 (2015). (6) Id., citing Baca v. Baca, 256 Ga.App. 514, 519(4), 568 S.E.2d 746 (2002); and Wilbanks v. Wilbanks, 238 Ga. 660, 661(1), 234 S.E.2d 915 (1977). Cf., O.C.G.A. § 19-6-15(c)(1); O.C.G.A. § 19-6-18; O.C.G.A. § 19-6-19; O.C.G.A. § 19-6-20; and Wetherington, supra, 291 Ga. at 725-726(2)(a). (7) Wetherington, supra, 291 Ga. at 726(2)(a). (8) Id. (9) See Williams v. Williams, 268 Ga. 126, 127, 485 S.E.2d 772 (1997); and Perry v. Perry, 213 Ga. 847, 852(3), 102 S.E.2d 534 (1958). (10) Moccia v. Moccia, 277 Ga. 571, 571-572(1), 592 S.E.2d 664 (2004). (11) See generally Shepherd v. Collins, 283 Ga. 124, 657 S.E.2d 197 (2008); and Cannon v. Cannon, 270 Ga. 640, 514 S.E.2d 204 (1999).