Wright v. Burch
331 Ga. App. 839
| Ga. Ct. App. | 2015Background
- Wright and Burch divorced in Tennessee in 2003; the marital dissolution agreement required Burch to pay $600/month child support and stated modifications required written agreement and court approval.
- Burch alleged he and Wright agreed to reduce support to $400/month for 2004–2007 and that DHR had improperly garnished his wages and misstated arrearages; he filed to domesticate the decree in Georgia and sought relief in May 2013.
- The child moved to live with Burch in Maryland in August 2013; the parties negotiated a draft consent order in October 2013 resolving arrearages, modifying custody, and setting Wright to pay $385/month directly to Burch.
- Counsel exchange showed assent and Burch’s counsel notified the court and procured cancellation of a status conference; Wright’s prior counsel later withdrew and Wright’s new counsel denied a settlement and filed a contempt counterclaim.
- The trial court found a settlement existed, entered the consent order, reduced arrearages and modified support, and awarded Burch $2,500 in attorney fees under OCGA § 9-15-14(b).
- The Court of Appeals affirmed that a settlement had been reached but reversed/vacated the trial court to the extent it reduced past-due arrearages and modified future support without findings that the change was in the child’s best interest; fee award was vacated as moot to the extent tied to the vacated enforcement.
Issues
| Issue | Wright's Argument | Burch's Argument | Held |
|---|---|---|---|
| Whether parties could privately settle/modifiy child support without court approval | Parties cannot privately modify child support; such agreements are ineffective without court incorporation | Parties can agree to resolve arrearages and future payments and submit consent order for court entry | The parties may agree to submit a settlement to court, but private agreements cannot retroactively alter past-due support; future modification requires court review for child’s best interest (affirm in part, reverse in part) |
| Whether trial court could forgive/reduce past-due arrearages by enforcing settlement | Settlement purporting to forgive arrears is void as retroactive modification | Settlement resolved arrears and DHR overpayments justify reduction | Court erred: reduction/forgiveness of past arrears is an improper retroactive modification and cannot be enforced |
| Whether trial court properly modified future support without statutory procedures/findings | Any modification must follow OCGA § 19-6-15(k) and be shown to be in child’s best interest | Parties’ agreement on future payments may be incorporated if court approves and finds it appropriate | Court erred by incorporating modification without making required findings; remand for hearing under § 19-6-15(k) |
| Whether attorney-fee award under OCGA § 9-15-14(b) was proper | Fee award unsupported by findings and counsel acted in good faith raising novel legal theory | Fees warranted for delay and to rectify garnishment; $2,500 reasonable | Fee award vacated (mooted by vacatur of enforcement); trial court must reassess fees on remand consistent with holdings |
Key Cases Cited
- Robertson v. Robertson, 266 Ga. 516 (1996) (modification of child support award in divorce decree requires court action; private agreements enforceable only when incorporated)
- Ga. Dept. of Human Resources v. Prater, 278 Ga. App. 900 (2006) (trial court may address repayment of arrears but cannot forgive or reduce past-due amounts as a retroactive modification)
- Tidwell v. White, 220 Ga. App. 415 (1996) (letters and counsel communications can memorialize an enforceable settlement even if later denied by new counsel)
- Rainey v. Lange, 261 Ga. App. 491 (2003) (trial court loses jurisdiction after filing of application for discretionary review; post-filing orders are void)
- Pearson v. Pearson, 265 Ga. 100 (1994) (court must consider whether agreed child support is sufficient based on child’s needs and parents’ ability to pay before incorporation)
- Arrington v. Arrington, 261 Ga. 547 (1991) (trial court may reject parties’ child support agreement and must evaluate sufficiency)
- Amos v. Amos, 212 Ga. 670 (1956) (court empowered to reject parties’ proposed modification of child support)