Bagwell v. Bagwell
290 Ga. 378
Ga.2012Background
- Married 1992, divorced 2006; decree awarded joint custody with Wife primary; Husband pay child support.
- May 2010, Husband filed pro se petition to downward-modify child support based on income decline.
- Wife moved for sanctions for discovery nonresponse; Oct 22, 2010 hearing; court indicated intent to dismiss.
- Nov 16, 2010, nunc pro tunc order dismissing Husband’s modification petition for failure to respond, finding wilful noncompliance and citing attorney status.
- Nov 5, 2010, Husband filed a second pro se petition for downward modification; Wife moved to dismiss as time-barred under OCGA 19-6-15(k)(2).
- Jan 13, 2011, court allowed the second modification to proceed, stating the first dismissal was not adjudication on the merits; Supreme Court disagrees and holds the petition is barred and the first dismissal was a final order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the two-year bar applies to the second petition. | Husband argues exception for involuntary income loss should apply. | Wife argues the first dismissal was a final adjudication and triggers the bar. | Bar applied; first dismissal was a final order. |
| Whether the involuntary loss of income exception defeats the bar. | Husband contends the petition is based on >25% income loss. | Wife contends exception not affirmatively invoked and time frame tied to prior ruling; res judicata. | Exception not satisfied; no relief from bar. |
| Whether res judicata bars the second petition. | Husband contends lack of adjudication on merits defeats res judicata. | Wife asserts issues identical to prior petition render action barred. | Res judicata applies; second petition barred. |
Key Cases Cited
- Wilson v. Wilson, 270 Ga. 479 (1999) (statutory bar for modification proceedings purposes)
- Taylor v. Taylor, 182 Ga. App. 412 (1987) (two-year prohibition with narrow exceptions)
- Brantley v. Sparks, 167 Ga. App. 323 (1983) (dismissal for discovery noncompliance adjudicates on the merits)
- Weeks v. Weeks, 243 Ga. 416 (1979) (precedent cited regarding adjudication on the merits)