GA Code § 19-11-12 (2021)
2021 Georgia Code|Title 19 - Domestic Relations|Chapter 11 - Enforcement of Duty of Support|Article 1 - Child Support Recovery Act|§ 19-11-12. Review of Orders for Child Support; Review Procedures; Order Adjusting Support Award Amount; No Release From Liability Due to Subsequent Financial Obligation

  The child support enforcement agency shall review orders for child support in accordance with the guidelines prescribed in Code Section 19-6-15.     The child support enforcement agency shall periodically give notice to the obligor and obligee who are subject to a IV-D court order for child support of the right of each to request a review of the order by the child support enforcement agency for possible recommendation for adjustment of such order. Such notification should be provided within 36 months after the establishment of the order or the most recent review; however, failure to provide the notice within 36 months shall not affect the right of either party to request, in writing, a review nor the right of the child support enforcement agency to conduct a review and to recommend an adjustment to the order. Such notice may be included in the initial order or review recommendation.   The establishment of a child support order or the entry of an order to modify a child support order or a determination of no change to a child support order under this Code section shall commence a 36 month cycle, the purpose of which is to provide the parties the right to a review of the order at least every 36 months or in such shorter cycle as the child support enforcement agency may determine. The failure of either party to request a review at least once every 36 months shall not affect the right of either party to request a review nor the right of the child support enforcement agency to conduct a review and to recommend an adjustment to the order at any time beyond the 36 month cycle.       All child support enforcement agency orders that are active TANF cases shall be reviewed under this Code section following the expiration of the thirty-sixth month after the order was issued, without a request from the obligor or obligee. All other orders for support being enforced by a child support enforcement agency shall be eligible for review pursuant to this Code section upon application and payment of fees required by the child support enforcement agency at the completion of the review.   If the request for the review occurs less than 36 months since the last issuance or last review of the order, the child support enforcement agency shall review, and if the requesting party demonstrates a substantial change in circumstances, seek to modify the order in accordance with the guidelines as provided by paragraph (2) of subsection (d) of this Code section.   If the request for the review occurs at least 36 months after the last issuance or last review, the requesting party shall not be required to demonstrate a substantial change in circumstances, the need for additional support, or that the needs of the child have decreased. The sole basis for a recommendation for a change in the award of support under this paragraph shall be a significant inconsistency between the existing child support order and the amount of child support which would result from the application of Code Section 19-6-15.       The child support enforcement agency shall notify the obligor and obligee at least 30 days before the commencement of a review of a child support order.   The child support enforcement agency shall review and, if there is a significant inconsistency between the amount of the existing child support order and the amount of child support which would result from the application of Code Section 19-6-15, the agency shall make a recommendation for an increase or decrease in the amount of an existing order for support. The child support enforcement agency shall not be deemed to be representing either the obligee or obligor in a proceeding under this Code section.   Upon completion of a review, the child support enforcement agency shall send notice by first-class mail to the obligor and obligee at their last known addresses of a proposed adjustment or a determination that there should be no change in the child support award amount.     In the case of an administrative order, the child support enforcement agency shall request the administrative law judge to increase or decrease the amount in the existing order in accordance with such agency recommendation. If either the obligor or the obligee files with the child support enforcement agency written objections to such agency's proposed child support order adjustment or determination of no change to the child support order within 33 days of the mailed notice, the matter shall be scheduled for an administrative hearing within the Office of State Administrative Hearings. The administrative order adjusting the child support award amount which results from a hearing or the failure to object to the child support enforcement agency's proposed adjustment or determination of no change shall, upon filing with the local clerk of the court, have the full effect of a modification of the original order or decree of support. As part of the order adjusting the child support award the administrative law judge shall issue an income deduction order which shall also be filed with the court pursuant to Code Sections 19-6-30 through 19-6-33.1.   In the case of a judicial order, the child support enforcement agency shall file a petition asking the court to adopt such agency's proposed adjustment or determination of no change to the child support order which shall be filed contemporaneously with such agency's mailed notice and shall serve such petition upon the obligor and obligee in the manner provided in subsection (e) of Code Section 9-11-4. Upon the filing of a written objection to the child support enforcement agency's proposed adjustment or determination of no change with the clerk of the superior court and with such agency, a de novo proceeding shall be scheduled with the court on the matter. If neither party files an objection within 30 days from the service of the petition, the court shall issue an order adopting the recommendation of the child support enforcement agency. As part of the order adjusting the child support award, the court shall issue an income deduction order pursuant to Code Sections 19-6-30 through 19-6-33.1.       When the trier of fact, the administrative law judge for administrative orders, or a judge of the superior court for court orders, as the case may be, determines that there is a significant inconsistency between the existing child support order and the amount of child support which would result from the application of Code Section 19-6-15, the trier of fact may use this inconsistency as the basis to increase or decrease the amount of support ordered. The trier of fact may also address the repayment of any arrears accumulated under the existing order.   An obligor shall not be relieved of his or her duty to provide support when such obligor has brought about his or her own unstable financial condition by voluntarily incurring subsequent obligations.   The department shall be authorized to promulgate rules and regulations to implement the provisions of this Code section.    (Ga. L. 1973, p. 192, § 11; Ga. L. 1976, p. 1537, § 10; Ga. L. 1989, p. 861, § 4; Ga. L. 1996, p. 412, § 3; Ga. L. 1997, p. 1021, § 8; Ga. L. 1999, p. 81, § 19; Ga. L. 1999, p. 906, § 1; Ga. L. 2003, p. 415, §§ 6, 7, 8; Ga. L. 2004, p. 631, § 19; Ga. L. 2010, p. 245, § 2/HB 1118; Ga. L. 2017, p. 646, §§ 1-20, 2-3/SB 137.)    The 2017 amendment,  effective July 1, 2017, substituted "child support enforcement agency" for "IV-D agency" throughout this Code section; in subparagraphs (d)(4)(A) and (d)(4)(B), inserted "child support enforcement" and substituted "such" for "the" throughout, deleted "and earnings" following "an income" in the middle of the last sentence, substituted "19-6-33.1" for "19-6-33" at the end of the last sentence; and substituted "child support enforcement" for "IV-D" near the end of the third sentence of subparagraph (d)(4)(B).   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1999, "paragraph" was inserted near the end of paragraph (c)(2).   Administrative Rules and Regulations.   - Federal and state tax refund intercept program, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Office of Child Support Recovery, Recovery and administration of child support, § 290-7-1-.08.   Law reviews.   - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of law on appellate practice and procedure, see 62 Mercer L. Rev. 25 (2010). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 227 (1989). For review of 1996 domestic relations legislation, see 13 Ga. St. U.L. Rev. 155 (1996).   JUDICIAL DECISIONS   Regulation inconsistent with section.    - A regulation of the Department of Human Resources (DHR) requiring the court to enter an order adopting an administrative order adjusting an existing court award of child support was inconsistent with the clear authority of O.C.G.A. § 19-11-12 and, thus, the court did not err by denying a petition by DHR for an order adopting an administrative order as provided by the regulation. Department of Human Resources v. Anderson, 218 Ga. App. 528, 462 S.E.2d 439 (1995).   Impact of 2003 amendment.    - In the 2003 amendments to the Child Support Recovery Act, O.C.G.A. § 19-11-1 et seq., the General Assembly unambiguously broadened the legislature's intent, expressly permitting the Department of Human Resources to accept applications for child support services from non-custodial parents and to review, and even to seek downward modifications of, support awards under the provisions of the Act. Falkenberry v. Taylor, 278 Ga. 842, 607 S.E.2d 567 (2005).    Construction with § 19-6-19. - Fact that jury trials are allowed in private child support modification proceedings under O.C.G.A. § 19-6-19, but denied in modification proceedings under O.C.G.A. § 19-11-12, does not create a separate classification for litigants in proceedings under that section in violation of equal protection rights. Kelley v. Georgia Dep't of Human Resources ex rel. Kelley, 269 Ga. 384, 498 S.E.2d 741 (1998).    Modification of child support arising out of a Department of Human Resources review under O.C.G.A. § 19-11-12 invokes the supreme court's divorce and alimony jurisdiction because appeals from orders in proceedings for modification of a child support award which arose from a prior divorce or alimony action, regardless of the code section under which the modification was pursued, are subject to the jurisdiction of the supreme court, and an action for child support modification under § 19-11-12 is neither inconsistent with, nor materially distinguishable from, a modification action under O.C.G.A. § 19-6-19, such that the former, unlike the latter, does not invoke the supreme court's jurisdiction; an award of child support always constitutes alimony if it is made in a divorce decree proceeding, but it may or may not represent alimony outside the divorce context, and the supreme court has jurisdiction over a case involving an original claim for child support that arose in either a divorce or alimony proceeding. Spurlock v. Dep't of Human Res., 286 Ga. 512, 690 S.E.2d 378 (2010).    Department's modification of a court-ordered child support obligation was not authorized by O.C.G.A. § 19-11-12. Department of Human Resources v. Siggers, 219 Ga. App. 1, 463 S.E.2d 544 (1995); Department of Human Resources v. Jones, 219 Ga. App. 580, 472 S.E.2d 331 (1996).   Modification below guidelines permitted, but no forgiveness of arrearages.    - While the trial court did not erroneously set a mother's child support obligation at a percentage well below the guidelines, the court lacked the authority to completely forgive the mother's arrearage as the General Assembly did not intend to permit forgiveness of past-due child support arrearage, regardless of whether the modification proceeding fell under the general statutory scheme or the Child Support Recovery Act, O.C.G.A. § 19-11-1 et seq. Ga. Dep't of Human Res. v. Prater, 278 Ga. App. 900, 630 S.E.2d 145 (2006).   State agency's standing to seek downward child support modification.    - State legislature did not intend to give a state agency the power to seek child support to the same extent that a parent can do so; thus, there existed a total absence of any statutory authority or case law to permit the state agency's initial participation in a case for the purpose of a downward modification action on behalf of a non-custodial parent. Accordingly, the state agency's authority to bring a downward modification action under O.C.G.A. § 19-11-12 is limited to cases in which there is a prior court order establishing or enforcing a child support obligation which the state agency participated in obtaining. Dep't of Human Res. v. Allison, 276 Ga. 175, 575 S.E.2d 876 (2003).   Department's failure to follow procedures.    - Department of Human Resources' filing of a petition to establish a child support obligation when one already existed under the divorce decree and the department's failure to follow the specific procedures set forth in O.C.G.A. § 19-11-12 for modifying a child support obligation was not harmless error. Ward v. Department of Human Resources, 273 Ga. 52, 537 S.E.2d 70 (2000).    Although a trial court was authorized to conclude that parents had agreed to submit the parties' settlement agreement to the court, the court was not authorized to enforce the terms of the agreement as to the past-due arrearage, or to modify future child support payments without ensuring that such a modification was in the best interests of the child. Wright v. Burch, 331 Ga. App. 839, 771 S.E.2d 490 (2015).   Need for additional support not required.    - When the Department of Human Resources petitions the superior court to adopt the department's recommendation, the court is not required to find a need for additional support but, without regard to whether the child is receiving public assistance, may increase child support based solely on a significant inconsistency between the existing order and the amount which would result from application of the child support guidelines. Falkenberry v. Taylor, 278 Ga. 842, 607 S.E.2d 567 (2005).    In a child support modification action, the trial court erred in concluding that evidence of the need for additional support was necessary and that the Department of Human Resources (DHR) lacked standing to file a modification action on behalf of a child not receiving public assistance unless it could show the child's need for additional support, and in failing to apply the child support guidelines of O.C.G.A. § 19-6-15 and to justify any departure therefrom; by express statutory amendment, the General Assembly no longer reserved for the private bar those modification actions which involved children who did not receive public assistance and needed no additional support, but whose court-ordered provider enjoyed an enhanced financial status. Falkenberry v. Taylor, 278 Ga. 842, 607 S.E.2d 567 (2005)(Unpublished).   Written findings insufficient.    - Trial court erred in not fully adopting the recommendation of the Department of Human Resources to reduce a father's child support obligation to $718 per month and in ordering that the father's child support obligation be reduced to $1,000 per month because the trial court's written order failed to state how application of the presumptive amount of child support would be unjust or inappropriate and how the best interest of the children for whom support was being determined would be served by the deviation pursuant to O.C.G.A. § 19-6-15(c)(2)(E) and (i)(1)(B); O.C.G.A. § 19-11-12(e) does not authorize the trial court to refrain from written findings or any other compliance with § 19-6-15 because like § 19-6-15(d), § 19-11-12(e) serves to emphasize that the qualitative determinations of whether special circumstances make the presumptive amount of child support excessive or inadequate and whether deviating from the presumptive amount serves the best interest of the child are committed to the discretion of the court. Spurlock v. Dep't of Human Res., 286 Ga. 512, 690 S.E.2d 378 (2010).   Jury trial.    - There is neither a fundamental constitutional nor a statutory right to a trial by jury in a child support modification proceeding brought under O.C.G.A. § 19-11-12. Kelley v. Georgia Dep't of Human Resources ex rel. Kelley, 269 Ga. 384, 498 S.E.2d 741 (1998).   Appeal.    - Father's appeal from the superior court's order under O.C.G.A. § 19-11-12, modifying the amount of his child support obligation, should have been brought as a discretionary appeal under O.C.G.A. § 5-6-35. Fitzgerald v. Department of Human Resources, 231 Ga. App. 129, 497 S.E.2d 659 (1998).    Cited in Young v. Department of Human Resources, 148 Ga. App. 518, 251 S.E.2d 578 (1978); Cox v. Cox ex rel. State Dep't of Human Resources, 255 Ga. 6, 334 S.E.2d 683 (1985).   OPINIONS OF THE ATTORNEY GENERAL   Constitutionality.    - Administrative review does not, in and of itself, work a modification of a pre-existing child support order; rather, modification occurs only upon judicial adoption of the administrative decision. Thus, O.C.G.A. § 19-11-12 does not violate the separation of powers provision of the Georgia Constitution of 1983. 1990 Op. Att'y Gen. No. U90-24.    Because O.C.G.A. § 19-11-12 provides that the modification process be made available to both the absent parent and the custodial parent, and that adjustment of the child support award may be either upward or downward, the equal protection requirements of both the federal and state constitutions are met. 1990 Op. Att'y Gen. No. U90-24.    Construed with § 19-6-19. - O.C.G.A. § 19-11-12 and its provisions do not prejudice or otherwise affect a right to employ the modification of child support remedy available under O.C.G.A. § 19-6-19. 1990 Op. Att'y Gen. No. U90-24.    O.C.G.A. § 19-11-12 does not create a conflict of interest for public employees participating in modification of child support orders because department employees are presumed to do their duty. Any bias which might appear in a particular case may be challenged by the aggrieved person either through a fair hearing or in superior court. 1990 Op. Att'y Gen. No. U90-24.   Upon proper disclosure to both the absent parent and the custodial parent that a district attorney represents the department in child support matters, there is no legal conflict of interest. 1990 Op. Att'y Gen. No. U90-24.   RESEARCH REFERENCES   Am. Jur. 2d.   - 79 Am. Jur. 2d, Welfare Laws, § 15 et seq.