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Georgia Family Law Case Update – Child Support, Declaratory Judgment

On November 3, 2008, the Supreme Court of Georgia reached decision by a 4 to 3 vote, that held a party could seek a declaratory judgment as to his obligation for PAST due child support.Acevedo v. Kim f/k/a Acevedo, S08A0798 (11/3/08). While this decision is perhaps more important for lawyers handling cases to understand, it does emphasize some interesting legal principals.

Prior to discussing the case further, it is important to understand what a declaratory judgment is. A declaratory judgment is, among other things, a procedural mechanism litigants use to determine their “rights and obligations under a divorce decree that is unclear”. Acevedo. It is used to remove a party from the “risk of taking some future action that, without direction,would jeopardize his interest”. Acevedo.

The unique question before the Supreme Court in this matter was whether it was appropriate for to ask for a declaratory judgment for PAST due child support obligations. The majority opinion held that since there was a very real risk that he would be brought up on charges of contempt of court, “he needed direction from a judicial tribunal to remove the uncertainty regarding the consequences of his planned future actions.” A very strong dissent argued, however, that since the support at issue only involved previously owed arrearages, then “the logical consequence of this contrived construction would be the seeking of declaratory judgment as a defense to the payment of any found obligation or debt, thus spawning unnecessary and spurious litigation”.Acevedo.

While it remains to be seen what develops from this recent case, the close decision and unique construction of what is grounds for a declaratory judgment suggests that this will not be the last time we visit this issue in Georgia.

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