Facey v

Facey, 281 Ga. 367, 638 S.E.2d 273, 2006 Ga. LEXIS 989 (2006). Consideration of “compromise” agreement improper. — In a proceeding for modification of child support, the trial court erred in considering evidence of a “compromise” agreement by the parties in calculating the amount of arrearage owed by the father. Robertson v. Robertson, 266 Ga. 516, 467 S.E.2d 556, 1996 Ga. LEXIS 112 (1996). Court must approve modification agreement. — Parties to divorce decree agreeing to modification of alimony must present agreement to the court for approval. McLure v. McLure, 159 Ga. App. 18, 282 S.E.2d 674, 1981 Ga. App. LEXIS 2462 (1981). Termination of support obligation. — Obligation of father under law to support his children terminates at age 18. Jones v. Jones, 244 Ga. 32, 257 S.E.2d 537, 1979 Ga. LEXIS 1092 (1979). Extent beyond which court cannot alter voluntary obligation. — Court cannot alter voluntary obligation undertaken by parent beyond the parent’s legal obligation. Jones v. Jones, 244 Ga. 32, 257 S.E.2d 537, 1979 Ga. LEXIS 1092 (1979). When automatic future modification is valid. — When definite amount of alimony or child support is awarded, au- 575 Application (Cont’d) tomatic future modification is not invalid. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875, 1981 Ga. LEXIS 1033 (1981). Automatic adjustments based on changes in Consumer Price Index. — O.C.G.A. § 19-6-19 does not preclude award providing for automatic adjustments based on changes in Consumer Price Index. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875, 1981 Ga. LEXIS 1033 (1981). Automatic adjustment provision does not preclude modification. — Automatic adjustment provision does not preclude either party from seeking modification under O.C.G.A. § 19-6-19. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875, 1981 Ga. LEXIS 1033 (1981). Provision stating change may never be downward. — Provision requiring that an ex-husband’s child-support obligation be modified annually based on his annual gross income, providing that the change never be downward, did not improperly prohibit the ex-husband from exercising his right under subsection (a) of O.C.G.A. § 19-6-19 to seek a downward modification of child support based on a change in his financial status. Jarrett v. Jarrett, 259 Ga. 560, 385 S.E.2d 279, 1989 Ga. LEXIS 541 (1989). Retroactive modification. — Effect of a retroactive award of child support in a West German Government judgment is not significantly different from a temporary modification under O.C.G.A. § 19-619, since both provide an increased level of support for the period while the proceeding for modification is pending. Knothe v. Rose, 195 Ga. App. 7, 392 S.E.2d 570, 1990 Ga. App. LEXIS 389 (1990). Credit for social security benefits. — In determining liability for child support payments, credit should be given for social security benefits received by custodial spouse for the benefit of minor children. Kight v. Kight, 242 Ga. 563, 250 S.E.2d 451, 1978 Ga. LEXIS 1283 (1978), overruled in part as stated in Scarborough v. Scarborough, 282 Ga. 427, 651 S.E.2d 42, 2007 Ga. LEXIS 604 (2007). Order requiring payment of reasonable medical expenses may be en- 19-6-19 tered in modification proceeding, although there is no such provision in a divorce decree because the essence of such order is that child support merely is being increased in amount, albeit perhaps, in an indefinite amount. Price v. Dawkins, 242 Ga. 41, 247 S.E.2d 844, 1978 Ga. LEXIS 1065 (1978). Court may modify group award into per capita award. — When in an alimony modification proceeding brought pursuant to Ga. L. 1977, p. 1253, § 1 it has been shown that there has been a change in income or financial status of a former spouse sufficient to warrant revision of alimony or child support payable to a group, then as an incident of the modification proceeding the court may modify the group award into a per capita award according to the needs of the recipients. Nash v. Nash, 244 Ga. 749, 262 S.E.2d 64, 1979 Ga. LEXIS 1392 (1979), overruled in part as stated in Rivera v. Rivera, 283 Ga. 547, 661 S.E.2d 541, 2008 Ga. LEXIS 426 (2008). Per capita reduction of group award. — Son’s selection of the father as custodial parent, when custody had originally been awarded to the mother, is a factor which may be considered in a claim for modification of child support based on changed financial conditions, but the father is not entitled as a matter of right to a per capita reduction of child support awarded to a group of children. Ivester v. Ivester, 242 Ga. 386, 249 S.E.2d 69, 1978 Ga. LEXIS 1222 (1978). Distinction between alimony and division of property. — Unless decree or alimony trial transcript shows to the contrary: (a) a decree specifying periodic payments for an uncertain time (e.g., until death or remarriage) with no indication of gross amount is alimony and is revisable; (b) a decree specifying periodic payments for a given time with no indication of gross amount other than by multiplying the amount due by the number of payment periods is alimony and is revisable; (c) a decree specifying periodic payments to be made until a given sum (i.e., an amount stated) has been paid is division of property or payment of corpus and is not revisable. Nash v. Nash, 244 Ga. 749, 262 S.E.2d 64, 1979 Ga. LEXIS 1392 (1979), 576 overruled in part as stated in Rivera v. Rivera, 283 Ga. 547, 661 S.E.2d 541, 2008 Ga. LEXIS 426 (2008). Fact that parties call payments “alimony” for income tax purposes is not controlling. Hathcock v. Hathcock, 246 Ga. 233, 271 S.E.2d 147, 1980 Ga. LEXIS 1055 (1980). Agreement specifying annual payments for 10 years constituted property settlement. — When other provisions of agreement provided specifically for weekly payments of alimony, payments of $2,000.00 per year for 10 years irrespective of remarriage or death of either party were a property settlement rather than alimony. Hathcock v. Hathcock, 246 Ga. 233, 271 S.E.2d 147, 1980 Ga. LEXIS 1055 (1980). Antenuptial agreement unenforceable. — Because an antenuptial agreement failed to disclose a husband’s income and a wife waived the right to alimony as a part of the agreement, the husband’s income was material to the antenuptial agreement and would have been a critical factor in the wife’s decision to waive alimony, and thus a trial court did not abuse the court’s discretion in finding the agreement unenforceable. Corbett v. Corbett, 280 Ga. 369, 628 S.E.2d 585, 2006 Ga. LEXIS 204 (2006). Periodic payments over given time as alimony. — Periodic payments over a given time, with no indication of a lump sum payment or in gross payment other than by multiplying amount due by number of times it is to be paid, constitute alimony. Hathcock v. Hathcock, 246 Ga. 233, 271 S.E.2d 147, 1980 Ga. LEXIS 1055 (1980). Award of use of home as lump-sum alimony. — When a wife was awarded title to the marital home until she remarried, sold the home, or died, the award of the house to the wife was an award of lump sum alimony and was not subject to modification. Estlund v. Estlund, 260 Ga. 225, 391 S.E.2d 763, 1990 Ga. LEXIS 219 (1990); McLendon v. McLendon, 262 Ga. 657, 424 S.E.2d 283, 1993 Ga. LEXIS 54 (1993). Payment in exchange for release from permanent alimony. — When parties in a divorce enter into agreement 19-6-19 whereby wife releases husband from permanent alimony payment in exchange for $15,000 to be paid in periodic installments, such installments are in the nature of a property settlement and not permanent alimony subject to revision under O.C.G.A. § 19-6-19. McLure v. McLure, 159 Ga. App. 18, 282 S.E.2d 674, 1981 Ga. App. LEXIS 2462 (1981). Modification in context of legitimation proceeding. — Even though a petition for modification of child support could be brought in the context of a legitimation proceeding, a showing of changed circumstances is required before an existing award may be modified. Department of Human Resources v. Jones, 215 Ga. App. 322, 450 S.E.2d 339, 1994 Ga. App. LEXIS 1203 (1994). No application to lump sum alimony award. — Husband’s obligation to the wife was one for lump sum alimony rather than periodic alimony because the alimony provision stated the exact amount of each payment and the exact number of payments without other limitations, conditions, or statements of intent; thus, O.C.G.A. § 19-6-19 did not apply. The trial court awarded the wife monthly alimony of $5,000 for the first year, $4,000 for the following two years, and $3,000 for the final year. Patel v. Patel, 285 Ga. 391, 677 S.E.2d 114, 2009 Ga. LEXIS 170 (2009). Attorney’s Fees Attorney’s lien not enforceable against child support payments. — Attorney’s charging lien should not be allowed to nullify an award determined to be necessary to assure the support of a child and is not enforceable against child support payments. Law Office of Tony Center v. Baker, 185 Ga. App. 809, 366 S.E.2d 167, 1988 Ga. App. LEXIS 42 (1988). Effect of date of underlying decree. — O.C.G.A. § 19-6-19(d) will be applied to modification petitions filed after the statute’s effective date, without regard to the date of the underlying decree. Crecelius v. Brooks, 258 Ga. 372, 369 S.E.2d 743, 1988 Ga. LEXIS 282 (1988). Designation of prevailing party. — Although O.C.G.A. § 19-6-19(d) gives the court discretion whether to award attor- 577 Attorney’s Fees (Cont’d) ney fees to a prevailing party, the statute does not authorize the court to designate who is the prevailing party. That determination is made by the trier of fact. Shapiro v. Lipman, 259 Ga. 85, 377 S.E.2d 673, 1989 Ga. LEXIS 126 (1989). Trial court’s award of attorney fees to the wife, based on an erroneous determination that she was the prevailing party, did not need to be reversed since the court would have been authorized in the court’s discretion to award her fees under O.C.G.A. § 19-6-22. Shapiro v. Lipman, 259 Ga. 85, 377 S.E.2d 673, 1989 Ga. LEXIS 126 (1989). Husband was not the prevailing party because the jury’s award was less than he had offered in settlement and because the modification would have resulted ultimately in a net loss to the wife. Thus, the husband could not have been awarded attorney’s fees. Keeler v. Keeler, 263 Ga. 151, 430 S.E.2d 5, 1993 Ga. LEXIS 468 (1993). When the former wife filed a complaint for domestication of a foreign judgment and modification of a child support order and dismissed the action without prejudice, since no trier of fact heard the merits of the claim, the former husband could not acquire prevailing party status, and the trial court erred in awarding attorney’s fees to the husband. Morris v. Morris, 222 19-6-19 Ga. App. 617, 475 S.E.2d 676, 1996 Ga. App. LEXIS 957 (1996). Prevailing party is entitled to attorney fees regardless of whether parties ever married. — Even though O.C.G.A. § 19-6-19(d) uses the term “former spouse,” it authorizes an award of attorney fees to a prevailing party in a child support modification action, regardless of whether the child’s parents were ever married because, for purposes of O.C.G.A. T. 19, Ch. 6, the term “former spouse” is equated with “parent” when considering issues of child support; accordingly, the trial court did not err in granting a mother who prevailed on her claim for modification of child support an award of attorney fees under O.C.G.A. § 19-6-19(d) even though she and her child’s father were never married. Monroe v. Taylor, 259 Ga. App. 600, 577 S.E.2d 810, 2003 Ga. App. LEXIS 90 (2003), cert. denied, No. S03C0857, 2003 Ga. LEXIS 958 (Ga. Nov. 10, 2003). Parties’ settlement agreement, not § 19-6-19(d), controlled. — Trial court did not exceed the court’s discretion in awarding reasonable and appropriate attorney fees to the prevailing spouse as the court’s decision was dictated by the parties’ settlement agreement, and not O.C.G.A. § 19-6-19(d), as the attorney-fee clause in the settlement agreement made no reference to § 19-6-19(d). Haley v. Haley, 282 Ga. 204, 647 S.E.2d 10, 2007 Ga. LEXIS 468 (2007).