Settlement. Fulton Superior Court. Before Judge Downs.
Shaw Law Firm, Scott W. Shaw, for appellant.
Warner, Bates, McGough, McGinnis & Portnoy, Kynna D. Garner, Nancy I. Jordan, for appellee.
A trial court enforced a purported settlement of a child support dispute between Monica Wright and her ex-husband Thomas Burch and awarded Burch attorney fees under OCGA § 9-15-14 (b). On appeal, Wright argues that the trial court erred when it enforced the settlement as to child support. Wright also argues that the fee award was erroneous because the evidence did not support such an award, because it was not accompanied by findings of fact, and because Wright had been asserting a novel legal theory in good faith below. We conclude that although the trial court was authorized to conclude that the parties had agreed to submit the settlement agreement to the court, it was not authorized to enforce the terms of the agreement as to past-due arrearages, or to modify future child support payments without ensuring that such a modification was in the best interest of the child. We therefore reverse or vacate those portions of the trial court's order modifying child support and awarding fees, and we remand for further proceedings.
The relevant facts are not in dispute. The record shows that the parents were married in 1996, and the child at issue was born in September 1999. Wright and Burch's divorce was finalized in Tennessee on December 16, 2003. The marital dissolution agreement incorporated into the decree provided that Burch would pay Wright child support in the amount of $600 per month, except when the child was living with Burch, until the termination of the agreement. The [331 Ga.App. 840] agreement specified:
No action by the parties will be effective to reduce the child support set forth herein after the due date of each payment and that each party understands that court approval must be obtained before the child support can be reduced unless such payments are automatically reduced or terminated under the terms of this [agreement].
(Emphasis supplied.) The agreement also provided that it " shall not be modified or annulled by the parties except by written agreement signed by both parties[.]" After the divorce, Wright, who resided in Georgia, had primary custody of the child. In July 2013, however, the child elected to live with Burch in Maryland, and moved there the following month.
Meanwhile, in May 2013, Burch filed the instant petition to domesticate the Tennessee divorce decree and for money had and received. The petition alleged that pursuant to the marital dissolution agreement, the parties had agreed to reduce Burch's child support obligations between September 2004 and December 2007 to $400 a month. Burch also alleged that the Georgia Department of Human Resources (DHR) had erroneously garnished his paychecks in excess of his child support obligations, transferred approximately $2,100 to Wright, and misstated his arrearage by more than $39,000. Burch sought to make any future child support payments directly to Wright rather than by means of garnishment and transferral. That same month, Wright wrote to Burch's counsel that although she " [d]id not agree" with Burch's calculation of his arrearage, DHR had made " a severe error" in reaching its estimate of the arrearage. Wright also wrote to DHR asking that there " not be any garnishment of arrears" from Burch. Wright did not file any answer to Burch's petition.
The parties immediately began negotiations as to the arrearage, the child's upcoming change of residence, and a reduction in child support. On July 8, 2013, Burch amended his petition to include a claim for modification such that the parties would have joint custody, with child support also modified " in accordance with any change in custody[.]" On October 13, the parties reached an apparent agreement as to a draft consent order purporting to modify both custody and child support. The draft consent order specifically provided that " all arrearage issues are resolved by this order and no back child support is owed by [Burch] to [Wright]" and that Wright would pay Burch $385 per month in child support (with additional provisions for other eventualities). The parties also agreed not to require an income [331 Ga.App. 841] deduction
order; instead, Wright would pay child support " directly" to Burch.
Burch's counsel e-mailed Wright's counsel that once she had received Wright's signature on the draft consent order, Burch's counsel would forward them to the trial court. Wright's counsel immediately e-mailed Wright's assent to these arrangements. On October 17, Burch's counsel notified the court of the agreement, submitted the draft consent order (without signatures), and asked that ...