GA Code § 19-6-17 (2021)
2021 Georgia Code|Title 19 - Domestic Relations|Chapter 6 - Alimony and Child Support|Article 1 - General Provisions|§ 19-6-17. Application for Child Support When Custody Awarded to Nonparent or Noncustodial Parent Was Not Subject to Divorce Court's Jurisdiction; Procedure; Enforcement; Judgment

  Whenever the custody of a minor child has been lawfully awarded by any court having jurisdiction thereof to:   Any individual other than a parent of such child at any time subsequent to the rendition of a final divorce decree between the parents of such child; or   A parent as part of the final divorce decree when the court awarding the decree was unable to obtain jurisdiction over the parent without custody for purposes of a determination as to whether the parent should be bound for support of such child and the court's decree contains no specific provisions binding the parent without custody for the support of such child,  the parent or other individual to whom the custody of such child is awarded may apply by petition to the superior court in the county where the parent without custody of such child resides for an order and judgment fixing the amount of support money that the parent without custody shall provide in order to fulfill the parent's natural duty to supply the necessaries of life for such child.      The procedure provided for in this Code section shall be available in cases in which the parent with custody of such child is the petitioner, notwithstanding the fact that the divorce decree and judgment may have been rendered in favor of the parent without custody.   The petition shall be served upon the respondent. The petition shall be heard by the court unless a jury trial is demanded by either party to the case. The judgment shall be reviewable as in other cases. The order or judgment shall likewise be subject to modification in the event of changed circumstances, under the same terms and conditions as are provided for in other cases of child support granted in connection with the rendition of a final decree in divorce cases.   The order and judgment of the court shall remain in effect, except as limited by its own restrictions and subsection (c) of this Code section, so long as the petitioner remains in lawful custody of such child and until such child becomes 18 years of age. Execution may be granted to the petitioner for any sums past due under the order and judgment, in accordance with procedures in other cases of judgments for alimony.   Any payment or installment of support under any child support order is, on and after the date due:   A judgment by operation of law, with the full force and effect and attributes of a judgment of this state, including the ability to be enforced;   Entitled as a judgment to full faith and credit; and   Not subject to retroactive modification.      (Ga. L. 1958, p. 204, § 1; Ga. L. 1977, p. 619, § 1; Ga. L. 1979, p. 466, § 32; Ga. L. 1997, p. 1613, § 6; Ga. L. 2017, p. 646, § 1-9/SB 137.)    The 2017 amendment,  effective July 1, 2017, substituted "such child" for "the children" and substituted "such child" for "the child or children" throughout; in the introductory language of subsection (a), deleted "or children" following "minor child"; in paragraph (a)(1), substituted "individual" for "person" near the beginning and substituted "parents of such child" for "father and mother of the children" near the end; substituted "divorce decree when" for "divorce decree where" near the beginning of paragraph (a)(2); in the ending undesignated paragraph of subsection (a), substituted "individual" for "person" near the beginning; in subsection (c), substituted "respondent. The petition shall" for "respondent; it shall", deleted the comma following "court" in the second sentence, and substituted "child support" for "permanent alimony for the support of children" near the end of the last sentence; and substituted "such child becomes 18 years" for "they become" near the end of the first sentence of subsection (d).   Law reviews.   - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 121 (1997). For annual survey on domestic relations, see 61 Mercer L. Rev. 117 (2009). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977).   JUDICIAL DECISIONS   Venue.    - In a divorce proceeding, in which the order did not determine an award of child support, a petition for child support must be brought as a separate action in the superior court of the county where the defendant to the petition resides. Eaddy v. Thomas, 190 Ga. App. 15, 378 S.E.2d 147 (1989).   Children need not be destitute to receive child support.    - Ga. L. 1958, p. 204, § 1 does not require, as condition precedent to fixing child support, that children be in destitute condition because of the failure of the father to provide the children with necessaries. Murphey v. Murphey, 215 Ga. 19, 108 S.E.2d 872 (1959).   No right to credit for voluntary overpayment of child support.    - Party with obligation of child support payments has no right to credit for voluntary overpayment of the child support due without the request or consent of the party to whom it is owed; nor can the parties by private agreement modify the terms of a divorce decree regarding child support. Peyton v. Peyton, 243 Ga. 846, 257 S.E.2d 268 (1979).   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).   Contracts settling child support and maintenance, approved by court, are enforceable.    - When parties separate and by contract settle right of their minor children for support and maintenance and such contract is approved by trial judge and made part of final divorce decree, courts will enforce the contract as made by the parties. Halpern v. Anoff, 247 Ga. 735, 279 S.E.2d 226 (1981).   No authority to grant or modify support in contempt proceeding.    - In a divorce case, the trial court has no authority to grant or modify child support in a contempt proceeding. Eaddy v. Thomas, 190 Ga. App. 15, 378 S.E.2d 147 (1989).    In a contempt proceeding brought by the Georgia Department of Human Resources, the trial court erred in modifying a parent's child support obligation and in forgiving a portion of the arrearage because the court lacked authority to modify support orders in contempt proceedings and O.C.G.A. § 19-6-17(e)(1)-(3) precluded retroactive modification of child support. Ga. Dep't of Human Res. v. Gamble, 297 Ga. App. 509, 677 S.E.2d 713 (2009).    Trial court erred by modifying a final child support and child custody order by abating the father's child support obligation for the time period during which the child resided with him while the mother was deployed when no such provision for abatement was in the final order; such modification was prohibited by O.C.G.A. § 19-6-17(e)(1-3). Dingle v. Carter, 350 Ga. App. 255, 829 S.E.2d 604 (2019).   Retroactive arrearage judgment was not permitted.    - Child support arrearage judgment of $2,844 was reversed because the judgment was based on the amount that the mother would have paid from the time the father was granted custody to the date the mother was ordered to start paying child support; such a retroactive modification of child support was not permitted. Wheeler v. Akins, 327 Ga. App. 830, 761 S.E.2d 383 (2014).    Even if the child support award was properly construed as a clerical error, the trial court erred in ordering payment of past due child support because the court could not retroactively modify child support. Ekhorutomwen v. Jamison, 356 Ga. App. 807, 849 S.E.2d 235 (2020).   Retroactive modification contrary to law.    - Trial court's modification of child support to increase the father's child support obligation retroactive to the date of the mother's petition was contrary to law. Perez v. Cunningham, 355 Ga. App. 393, 844 S.E.2d 253 (2020).   Action for child support can be brought in addition to divorce action.    - Although the complaint in the divorce action did not seek child support, the custodial spouse was not barred from enforcing the responsibility of the non-custodial spouse to support the child, and the custodial spouse may institute an original action for an award of child support. Hackbart v. Hackbart, 272 Ga. 26, 526 S.E.2d 840 (2000).   Laches does not apply to uncollected child support.    - Judgment forgiving a father's child support arrearage based on the mother's delay in making the claim was reversed because laches does not apply to claims for uncollected child support and the dormancy statute, O.C.G.A. § 9-12-60(a), did not apply to child support orders entered after July 1, 1997, such as the one involved in the case. Wynn v. Craven, 301 Ga. 30, 799 S.E.2d 172 (2017).    Cited in Thomas v. Thomas, 215 Ga. 383, 110 S.E.2d 657 (1959); Crane v. Crane, 225 Ga. 605, 170 S.E.2d 392 (1969); Newsome v. Newsome, 232 Ga. 49, 205 S.E.2d 291 (1974); Walsh v. Walsh, 240 Ga. 154, 240 S.E.2d 702 (1977); Greer v. Moss, 240 Ga. 121, 239 S.E.2d 685 (1977); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Nolan v. Moore, 241 Ga. 156, 244 S.E.2d 10 (1978); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Dupre v. Scappaticcio, 244 Ga. 179, 259 S.E.2d 440 (1979); Russ v. Russ, 272 Ga. 438, 530 S.E.2d 469 (2000); Rabon v. Brown, 275 Ga. 46, 561 S.E.2d 816 (2002).   RESEARCH REFERENCES   Am. Jur. 2d.   - 24A Am. Jur. 2d, Divorce and Separation, §§ 1022, 1100.   C.J.S.   - 27C C.J.S., Divorce, § 1137 et seq.   ALR.    - Allowance in decree against parent for education of child, 18 A.L.R. 899.    Jurisdiction of action by mother or child for support of child born after divorce in another state or country, 32 A.L.R. 659.    Duty of father to support child as affected by decree which awards general custody to him, but permits mother to have custody part of time, 52 A.L.R. 286.    Death of mother of child whose custody has been awarded to her or to third person by divorce decree as reviving father's common-law duty to support, or right to custody of, child, 128 A.L.R. 989.    Power of court in divorce or separation suit to provide for support of, or aid to, adult child, or to continue provision for support after child attains majority, 162 A.L.R. 1084.    Right of wife or child by virtue of right to support to maintain action to set aside conveyance by husband or parent as fraudulent, without reducing claim to judgment, 164 A.L.R. 524.   Support provisions of judicial decree or order as limit of father's liability for expenses of child, 7 A.L.R.2d 491.   Father's duty under divorce or separation decree to support child as affected by latter's induction into military service, 20 A.L.R.2d 1414.   Foreign divorce as affecting local order previously entered for separate maintenance, 28 A.L.R.2d 1346; 49 A.L.R.3d 1266.   Necessity of personal service within state upon nonresident spouse as prerequisite of court's power to modify its decree as to alimony or child support in matrimonial action, 62 A.L.R.2d 544.   Opening or modification of divorce decree as to custody or support of child not provided for in the decree, 71 A.L.R.2d 1370.   Allocation or apportionment of previous combined award of alimony and child support, 78 A.L.R.2d 1110.   Change in financial condition or needs of parents or children as grounds for modification of decree for child support payments, 89 A.L.R.2d 7.   Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.   Doctrine of forum non conveniens: assumption or denial of jurisdiction of action involving matrimonial dispute, 9 A.L.R.3d 545, 55 A.L.R.5th 647.   Right of child to enforce provisions for his benefit in parents' separation or property settlement agreement, 34 A.L.R.3d 1357.   Noncustodial parent's rights as respects education of child, 36 A.L.R.3d 1093.   Income of child from other source as excusing parent's compliance with support provisions of divorce decree, 39 A.L.R.3d 1292.   Divorce: power of court to modify decree for support of child which was based on agreement of parties, 61 A.L.R.3d 657.   Father's liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support, 91 A.L.R.3d 530.   Propriety of decree in proceeding between divorced parents to determine mother's duty to pay support for children in custody of father, 98 A.L.R.3d 1146.   Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child's college education, 99 A.L.R.3d 322.   Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 A.L.R.4th 1015.   Excessiveness or adequacy of money awarded as child support, 27 A.L.R.4th 864.   Excessiveness or adequacy of amount of money awarded for alimony and child support combined, 27 A.L.R.4th 1038.   Parent's child support liability as affected by other parent's fraudulent misrepresentation regarding sterility or use of birth control, or refusal to abort pregnancy, 2 A.L.R.5th 337.   Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863.   Right to credit on child support payments for social security or other government dependency payments made for benefit of child, 34 A.L.R.5th 447.   Decrease in income of obligor spouse following voluntary termination of employment as basis for modification of child support award, 39 A.L.R.5th 1.   Validity, construction, and application of full faith and Credit for Child Support Orders Act (FFCCSOA), 28 USCS § 1738B - state cases, 18 A.L.R.6th 97.