CAN I GET MY EX TO PAY SUPPORT FOR MY CHILDREN IF WE RECONCILE BUT DON’T REMARRY?

An interesting question! In the case decided in October 2024, Calvert v. Calvert, A24A0640, A24A0641, the Court upheld a prior Order requiring the payment of child support despite the fact that the parties divorced, reconciled and had two more children before ending their relationship. When they separated for the second time, Father filed for legitimation a modification of custody, which ultimately awarded him primary custody of the parties’ three children and Mother filed for Contempt as Father had failed to make his required support payments per the original Order. At a temporary hearing, Mother was granted past due child support and attorney’s fees. 

In 2023, after the final hearing, the trial court granted joint legal custody to both parents, with the Father awarded primary physical custody of all three children and the Mother ordered to pay child support. Father moved for the Court to reconsider the prior contempt ruling, but the court upheld the contempt ruling, and awarded additional child support and attorney fees to the Mother due to Father’s refusal to pay pursuant to the temporary order. 

Two weeks after the final judgment, Father moved for attorney’s fees pursuant to OCGA § 9-15-14 (a), OCGA § 19-9-3 (g), and OCGA § 19-6-15 (k) (5). The Court held a hearing on Father’s motion, and awarded him almost two thirds of his request. The trial court found that Father was entitled to fees under OCGA §§ 19-9-3 (g) and 19-6-15 (k) (5) because he was the prevailing party with respect to his claims for custody and an upward modification of child support. The trial court also awarded Father fees under OCGA § 9-15-14 (a), holding that the Mother's pursuit of custody was without merit.

Father appealed the issue of the past due child support ordered by the parties’ final decree in their divorce, arguing that there was an informal agreement with the Mother to replace child support with financial contributions, but the Superior Court found no evidence to support this claim and upheld the contempt ruling. The rule generally applicable to the child support provisions of a divorce decree is that such provisions may be modified only by a court ruling on a modification petition, but the Court can consider, in the interest of equity, giving credit for expenditures or alternative payments made in lieu of child support. See Skinner v. Skinner, 252 Ga. 512, 513 (1984). 

Mother, as the party filing for contempt, had the burden of demonstrating the Father's failure to pay his support in accordance with the divorce decree. See Harvey v. Lindsey, 251 Ga. App. 387, 392 (2001). However once Mother met this burden, Father was required to show with evidence that his failure to meet the terms of their divorce decree was excused or permitted. In Calvert, the parties did not come to an agreement about the payment of child support and Father assumed that he was not required to make the payment. Mother still felt he was responsible for these payments despite the fact that she did not sue him. Further, Father did not show banking or financial statements proving that he contributed to the household.

The Mother also appealed the award of attorney fees to the Father, arguing the trial court lost jurisdiction after her appeal notice and that the award was not supported by sufficient evidence. The court explained that the trial court retained jurisdiction over post-judgment attorney fee motions and could grant fees for frivolous claims, but the trial court failed to provide specific factual findings to justify the fee award and did not cite the specific statute for the award of fees to Father. 

In terms of the award of fees against Mother for “frivolous litigation” the higher Court found that there was no basis for an award against her as her claim for custody of the children was not without merit and the Court failed to make a factual finding to support its summary conclusion that her pursuit of custody was not based in law or fact. The lower Court’s stating that the award was based on “evidence addressed at trial” was not sufficient to support this award. Further, the report of a guardian ad litem is not determinative of a custody case. See Ezunu v. Moultrie, 334 Ga. App. 270, 271-272 (2015).  

The award was vacated and remanded the lump sum award of $9,000 in fees to Father due to the trial court’s failure to explain its reasoning or break down the fees related to the custody issue. Additionally, the court erred in awarding fees under OCGA § 19-9-3(g) to the Father, as the request was made after the final judgment issued. 

The higher Court also questioned the award under OCGA § 19-6-15 (k) (5) to the “prevailing party” in this case as the Father only moved to modify child support, and based on the facts of this case alone, the lower Court could only award fees based on his pursuit/win of that claim.

The case was remanded for further findings, and proper support for the fee award.

This case clarifies for attorneys and parties that an award under OCGA § 19-9-3(g) cannot be made after a final hearing, the importance of having any agreement between the parties in writing and made into an Order of the Court, and the importance of specifying and clarifying which statute and what specific billing entries are related to each request for fees. 

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