In Georgia cases where a child support payor seeks a downward modification of his child support obligation, the payor often asks at what rate the child support obligation continues to accruewhile the modification action is pending. The Court of Appeals of Georgia recently heard a case that clarifies this issue a bit. Morgan v. Bunzendahl, A12A0290 (2012). In Morgan v. Bunzendahl,the father was found in contempt for failing to make payments totaling $10,392 on a previous contempt obligation and the trial court ordered him incarcerated until he purged himself of thecontempt. Id. at 2. Shortly thereafter, the father filed a petition to modify his child support obligation, due to recent financial setbacks in his construction business. Id. Ayear later, the trial court granted the petition, but denied the father's request to make the modification retroactive to the date the father filed the petition because it was not allowed underGeorgia law. Id. at 3. The father appealed.
The Court of Appeals of Georgia agreed with the father and vacated the trial court's order. Specifically, the Court found that the statute relied on by the trial court, OCGA §19-6-15(j)(1), "does not provide that the modification itself is 'retroactive,' and if the trial courtonly determines that the support payment should be modified, OCGA §19-6-15(j) is inapplicable because the trial court determines only how much the petitioner will owe each month from that dayforward." Id. at 4-5. In other words, if it is just a modification action and nothing else, the part of the statute that allows retroactivity does not apply because a modification actiondoes not determine "whether and how much the petitioner is in arrears on his child support payments." Id. This arrearage is considered in a contempt action, however, and, thus, under OCGA§19-6-15(j), "the child support oligation of a parent facing involuntary adversity 'shall not accrue' from he date of service of the modification petition." Id.
Specifically, the Court held that "when calculating back child support related to a contempt citation, that portion of the obligation attributable to lost income did not continue to accrue after[the father] served his modification petition on the custodial parent." Id. at 1.