301 Ga. 30 FINAL COPY
S17A0580. WYNN v. CRAVEN.
PETERSON, Justice.
Over a period of fifteen years, a mother undercalculated by more than
$72,000 the amount of child support a court had ordered the father to pay.
When the father sought a change in custody, she then demanded payment. The
trial court rejected her belated claim on the basis that it was barred by the
equitable doctrine of laches. But laches does not apply to claims for uncollected
child support, and so we reverse.
The record shows that Helen Wynn (“Mother”) and Robert Craven
(“Father”) had a child together before divorcing in March 2000. The divorce
decree incorporated the parties’ settlement agreement, which awarded Mother
primary physical custody of their child and required Father to pay child support
in “an amount equal to 20% of his gross weekly income but not less than $100
per week.” The decree further provided that child support was to be paid
through the superior court clerk’s office, and payments were to include the
statutory handling charge and a copy of Father’s weekly earnings statement. In May 2009, Mother’s attorney sent a letter to Father informing him that
he owed $1,500 in child support arrears based on Mother’s understanding that
he was to pay $100 per week. Father paid this amount in full. In February
2014, Mother, with the assistance of the Division of Child Support Services,
contacted Father to obtain $3,493 in arrears, an amount calculated again on the
understanding that Father was to pay $100 per week. Father paid the amount
requested.
In June 2014, Father sought a change of custody. In response, Mother,
with a new attorney, filed a motion for contempt claiming that Father should
have been making child support payments equal to 20 percent of his weekly
income, not merely $100 per week. Mother provided evidence that, based on
a 20 percent requirement, Father was $72,146 in arrears. The trial court
granted Father’s motion to change custody. The court denied Mother’s motion
for contempt on the basis of laches. The court concluded that Mother sought
and accepted payments of only $100 per week for more than a decade, and she
never sought the production of income records or otherwise exercised
reasonable diligence in seeking child support in the amount of 20 percent of
2 Father’s gross weekly income. The court directed that the applicable child
support amount due from the date of entry of the divorce decree until the date
of its order “shall be calculated at $100.00 per week.” Following the denial of
Mother’s motion for new trial and motion to set aside the judgment, we granted
Mother’s application for discretionary appeal.
Mother argues that the trial court erred by applying the doctrine of laches
to bar her claim to child support arrears, because it amounted to an
unauthorized forgiveness of the amounts owed in arrears. We agree.
It is clear that the divorce decree required Father to pay more than he did.
Father concedes that he would be $72,146 in arrears if the divorce decree
required him to pay 20 percent of his gross weekly income in child support.
The plain language of the divorce decree did precisely that, as it provides that
Father was ordered to pay “an amount equal to 20% of his gross weekly income
but not less than $100 per week.” This $100 per week requirement was a floor,
but only a floor; it was not also a ceiling. Father could pay $100 per week only
when 20 percent of his gross weekly income was less than $100; otherwise, he
had to pay 20 percent. Father can prevail, then, only if his equitable arguments
3 can relieve him of this unambiguous obligation. They can’t.
It is well established that a child support order is a judgment entitled to
full force and effect and is not subject to retroactive modification. OCGA §
19-6-17 (e). Any modification of a child support award may operate
prospectively only. See Robertson v. Robertson, 266 Ga. 516, 518 (1) (467
SE2d 556) (1996); Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279)
(1989). A forgiveness or reduction of child support arrears constitutes an
improper retroactive modification. See Robertson, 266 Ga. at 518 (1); see also
Ga. Dept. of Human Resources v. Prater, 278 Ga. App. 900, 902-903 (2) (630
SE2d 145) (2006) (forgiveness of past-due child support arrearage is not
permitted); Ga. Dept. of Human Resources v. Gamble, 297 Ga. App. 509, 511
(677 SE2d 713) (2009) (a trial court may not “forgive any amounts owed in
arrears”).
Mother’s delay could not relieve Father of his obligation to pay child
support. Father argues that the doctrine of laches barred Mother’s contempt
action because her almost 15-year delay in asserting her claim was inexcusable;
she twice had sought to collect arrears and had the opportunity on those
4 occasions to determine whether Father owed additional child support but
instead asked only for $100 per week.1 Laches may bar belated equitable claims
when “it would be inequitable to allow a party to enforce his [or her] legal
rights.” OCGA § 9-3-3 (emphasis supplied); see also OCGA § 23-1-25. But
Mother was not asserting her right to child support; rather, she was asserting
her child’s right to child support. A parent cannot waive her child’s right to
child support. See, e.g., Lewis v. Lewis, 278 Ga. 570, 570 (604 SE2d 485)
(2004) (noting “long-standing principle that the right to receive child support
belongs to the child and cannot be waived by the custodial parent”); Citizens
& S. Nat’l Bank v. Ellis, 171 Ga. 717, 733 (156 SE 603) (1931) (laches may
apply when plaintiff’s delay gives rise to “a presumption that, if the plaintiff
was ever possessed of a right, it has been abandoned or waived”).
Father’s only real authority for his argument that laches applies here is
1 Father also argues that Mother’s failure to “renew” the March 2000 child support award under the divorce decree caused the award to become dormant and unenforceable. See OCGA § 9-12-60 (a) (providing when a judgment becomes dormant and unenforceable). Father’s argument fails because the dormancy statute does not apply to child support orders entered after July 1, 1997. See OCGA § 9-12-60 (d) (provisions of subsection (a) of statute shall not apply to child support judgments or orders); Markowitz v. Ga. Dept. of Human Resources, 300 Ga. App. 371, 372 n.1 (685 SE2d 360) (2009) (noting that child support orders entered after July 1, 1997 are no longer included in the definition of dormant judgments).
5 the decision of the Court of Appeals of Georgia in Haddon v. Dept. of Human
Resources, 220 Ga. App. 338 (469 SE2d 434) (1996). But Haddon did not
involve an attempt to collect child support arrears. There, a probate court
entered an order incorporating a settlement agreement between a mother and
putative father requiring the putative father to pay $4,400 in exchange for a
release of any and all paternity claims against him. Id. at 339. Sixteen years
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301 Ga. 30 FINAL COPY
S17A0580. WYNN v. CRAVEN.
PETERSON, Justice.
Over a period of fifteen years, a mother undercalculated by more than
$72,000 the amount of child support a court had ordered the father to pay.
When the father sought a change in custody, she then demanded payment. The
trial court rejected her belated claim on the basis that it was barred by the
equitable doctrine of laches. But laches does not apply to claims for uncollected
child support, and so we reverse.
The record shows that Helen Wynn (“Mother”) and Robert Craven
(“Father”) had a child together before divorcing in March 2000. The divorce
decree incorporated the parties’ settlement agreement, which awarded Mother
primary physical custody of their child and required Father to pay child support
in “an amount equal to 20% of his gross weekly income but not less than $100
per week.” The decree further provided that child support was to be paid
through the superior court clerk’s office, and payments were to include the
statutory handling charge and a copy of Father’s weekly earnings statement. In May 2009, Mother’s attorney sent a letter to Father informing him that
he owed $1,500 in child support arrears based on Mother’s understanding that
he was to pay $100 per week. Father paid this amount in full. In February
2014, Mother, with the assistance of the Division of Child Support Services,
contacted Father to obtain $3,493 in arrears, an amount calculated again on the
understanding that Father was to pay $100 per week. Father paid the amount
requested.
In June 2014, Father sought a change of custody. In response, Mother,
with a new attorney, filed a motion for contempt claiming that Father should
have been making child support payments equal to 20 percent of his weekly
income, not merely $100 per week. Mother provided evidence that, based on
a 20 percent requirement, Father was $72,146 in arrears. The trial court
granted Father’s motion to change custody. The court denied Mother’s motion
for contempt on the basis of laches. The court concluded that Mother sought
and accepted payments of only $100 per week for more than a decade, and she
never sought the production of income records or otherwise exercised
reasonable diligence in seeking child support in the amount of 20 percent of
2 Father’s gross weekly income. The court directed that the applicable child
support amount due from the date of entry of the divorce decree until the date
of its order “shall be calculated at $100.00 per week.” Following the denial of
Mother’s motion for new trial and motion to set aside the judgment, we granted
Mother’s application for discretionary appeal.
Mother argues that the trial court erred by applying the doctrine of laches
to bar her claim to child support arrears, because it amounted to an
unauthorized forgiveness of the amounts owed in arrears. We agree.
It is clear that the divorce decree required Father to pay more than he did.
Father concedes that he would be $72,146 in arrears if the divorce decree
required him to pay 20 percent of his gross weekly income in child support.
The plain language of the divorce decree did precisely that, as it provides that
Father was ordered to pay “an amount equal to 20% of his gross weekly income
but not less than $100 per week.” This $100 per week requirement was a floor,
but only a floor; it was not also a ceiling. Father could pay $100 per week only
when 20 percent of his gross weekly income was less than $100; otherwise, he
had to pay 20 percent. Father can prevail, then, only if his equitable arguments
3 can relieve him of this unambiguous obligation. They can’t.
It is well established that a child support order is a judgment entitled to
full force and effect and is not subject to retroactive modification. OCGA §
19-6-17 (e). Any modification of a child support award may operate
prospectively only. See Robertson v. Robertson, 266 Ga. 516, 518 (1) (467
SE2d 556) (1996); Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279)
(1989). A forgiveness or reduction of child support arrears constitutes an
improper retroactive modification. See Robertson, 266 Ga. at 518 (1); see also
Ga. Dept. of Human Resources v. Prater, 278 Ga. App. 900, 902-903 (2) (630
SE2d 145) (2006) (forgiveness of past-due child support arrearage is not
permitted); Ga. Dept. of Human Resources v. Gamble, 297 Ga. App. 509, 511
(677 SE2d 713) (2009) (a trial court may not “forgive any amounts owed in
arrears”).
Mother’s delay could not relieve Father of his obligation to pay child
support. Father argues that the doctrine of laches barred Mother’s contempt
action because her almost 15-year delay in asserting her claim was inexcusable;
she twice had sought to collect arrears and had the opportunity on those
4 occasions to determine whether Father owed additional child support but
instead asked only for $100 per week.1 Laches may bar belated equitable claims
when “it would be inequitable to allow a party to enforce his [or her] legal
rights.” OCGA § 9-3-3 (emphasis supplied); see also OCGA § 23-1-25. But
Mother was not asserting her right to child support; rather, she was asserting
her child’s right to child support. A parent cannot waive her child’s right to
child support. See, e.g., Lewis v. Lewis, 278 Ga. 570, 570 (604 SE2d 485)
(2004) (noting “long-standing principle that the right to receive child support
belongs to the child and cannot be waived by the custodial parent”); Citizens
& S. Nat’l Bank v. Ellis, 171 Ga. 717, 733 (156 SE 603) (1931) (laches may
apply when plaintiff’s delay gives rise to “a presumption that, if the plaintiff
was ever possessed of a right, it has been abandoned or waived”).
Father’s only real authority for his argument that laches applies here is
1 Father also argues that Mother’s failure to “renew” the March 2000 child support award under the divorce decree caused the award to become dormant and unenforceable. See OCGA § 9-12-60 (a) (providing when a judgment becomes dormant and unenforceable). Father’s argument fails because the dormancy statute does not apply to child support orders entered after July 1, 1997. See OCGA § 9-12-60 (d) (provisions of subsection (a) of statute shall not apply to child support judgments or orders); Markowitz v. Ga. Dept. of Human Resources, 300 Ga. App. 371, 372 n.1 (685 SE2d 360) (2009) (noting that child support orders entered after July 1, 1997 are no longer included in the definition of dormant judgments).
5 the decision of the Court of Appeals of Georgia in Haddon v. Dept. of Human
Resources, 220 Ga. App. 338 (469 SE2d 434) (1996). But Haddon did not
involve an attempt to collect child support arrears. There, a probate court
entered an order incorporating a settlement agreement between a mother and
putative father requiring the putative father to pay $4,400 in exchange for a
release of any and all paternity claims against him. Id. at 339. Sixteen years
later, the Department of Human Resources filed a petition on behalf of the
mother seeking future child support; there was no claim that the putative father
failed to pay the amount due under the agreement. Id. at 339 & n.2. The
Haddon court applied the doctrine of laches to bar the petition for future child
support because the settlement agreement resolved all claims against the
putative father, and the mother never sought to set aside the order incorporating
the agreement. Id. at 339-341. The court acknowledged that parents may not
waive their children’s support rights but noted that those rights extend only to
support from a child’s parents, and the mother had never established the
putative father’s paternity. Id. at 339-340. Compare Dept. of Human Resources
v. Mitchell, 232 Ga. App. 215, 216-217 (1) & n.1 (501 SE2d 508) (1998)
6 (distinguishing Haddon and concluding that trial court improperly applied
laches to bar Department’s contempt action to compel putative father to submit
to paternity testing in an effort to collect reimbursement of public assistance
paid in support of the minor child and future child support payments).
Unlike Haddon, Mother is not seeking future child support. Instead, she
is seeking past child support ordered by a court and unpaid by Father.
Regardless of whether Mother was diligent in attempting to collect child
support arrears, Haddon does not apply here and does not support the
application of laches to belated claims for past child support. See Sharpe v.
Perkins, 284 Ga. App. 376, 380-381 (4) (644 SE2d 178) (2007) (finding
meritless the father’s argument that doctrine of laches barred mother’s recovery
of money for child’s private school tuition that he owed under divorce
agreement because it was the child’s right that could not be waived by a
parent); see also Lewis, 278 Ga. at 570 (claim for child support arrearage under
a temporary order was not waived by plaintiff’s failure to assert the claim at
trial). The trial court was therefore without authority to modify the clear
language of the divorce decree that required Father to pay 20 percent of his
7 gross weekly income, which had the effect of forgiving the arrears that had
accrued under the decree. See, e.g., Anderson v. Anderson, 230 Ga. 885,
886-887 (199 SE2d 800) (1973) (trial judge presiding over contempt
proceeding has no authority to forgive portion of arrearage or to reduce the
amount of future child support obligations); Gamble, 297 Ga. App. at 510-511
(reversing contempt judgment that reduced father’s child support obligation
and his arrearage). Because the trial court erred in forgiving Father’s arrears,
we reverse. Although equitable principles could not bar Mother’s contempt
action, on remand, the trial court may consider the parties’ circumstances,
including any financial hardship to Father and his dependents, in determining
the timing and manner of the payment of the arrears. See Strunk v. Strunk, 294
Ga. 280, 284 (5) (754 SE2d 1) (2013).
Judgment reversed. All the Justices concur.
Decided April 17, 2017.
Domestic relations. Lowndes Superior Court. Before Judge Tunison.
Bennett Law Firm, Michael S. Bennett, Sr., James T. Bennett, Kari Anne
Bowden, for appellant.
8 Jennifer E. Williams, for appellee.