Follow us on Facebook Georgia's Two Year Restriction on Filing Child Support Modifications
Monday, 30 January 2012 18:58 Written by David Canale
Under Georgia law, child support modifications may only be filed by a party every two years, except where the modification is based upon an involuntary loss of income. The two-year rule applies even where cases are dismissed on procedural grounds.
In the recent Georgia case of Bagwell v. Bagwell, the Supreme Court reversed a trial court’s refusal to dismiss a second child support modification, where the first case had been dismissed for failure to respond to discovery. In that case, a noncustodial father obligated to pay child support under an order from his divorce case filed a modification, alleging a substantial decrease in his income and financial status since the divorce. His ex-wife had moved for sanctions against him, for failure to respond to her discovery requests. The trial court, as a sanction for this failure to respond, dismissed the petition for modification, finding that the father had completely failed and refused to respond to the mother’s discovery and that the failure to respond was "willful and intentional."
Only 14 days later, the father again filed a modification petition, on the same grounds as the first petition. His ex-wife moved to dismiss the petition on the grounds that it was time-barred under O.C.G.A. § 19-6-15(k)(2), which prohibits the filing of a modification petition within two years after the date of the final order on a previous petition. The father argued that the dismissal of the first modification petition was not an "adjudication on the merits," but rather a discovery sanction imposed by the court for his failure to respond to discovery. The Supreme Court disagreed, finding that the dismissal of the first modification was a "final order" under the terms of § 19-6-15. Therefore, the second petition, which was filed well within the two-year time period, was barred, and the trial court aired in failing to grant the mother’s motion to dismiss the case.
What does this mean for a child support obligor who desires to modify a child support obligation? Clearly, timing is an issue. The discovery sanction issued by the trial court was ultimately a key issue in this case. If the first case had not been dismissed, then the father’s child support obligation would have been heard by the court. The problem here was not that the second case was filed, but that it had to be filed because of the outcome of the first case. And the outcome of the first case was determined by the father’s failure to respond to what was likely a standard discovery request.
The discovery process in a child support case, though time-consuming, nonetheless serves an important function. The exchange financial information provides a basis for the court to determine whether a modification is appropriate. A party’s failure to participate in that process can ultimately doom what is otherwise a valid claim. If you are considering a child support modification, you owe it to yourself to discuss your case with an experienced family law attorney who can provide you guidance and answer important questions about your circumstances. When there is "money" on the line, a prospective litigant should be very cautious about trying to go it alone and represent himself. Child support modifications are very technical in nature, and although a party may always represent himself, the better course of action is to have an experienced family law attorney on your side.
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