The Supreme Court of Georgia recently heard an interesting case regarding self-executing child support provisions in a divorce settlement agreement. In Tanner v. Morris, the parties’ divorce settlement agreement gave the mother primary physical custody and stated that the father was to pay child support to the mother for the three minor children “for so long as each child shall remain in high school and while also living at home with Wife prior to beginning college or other secondary education.” Tanner v. Morris, S10A1227 at 2 (2010) (emphasis added).
Shortly after the divorce was final, the parties’ eldest child began living with the father, and the father ceased making child support payments for that child. Id. The middle child subsequently began living with the father, and the father thereafter ceased making child support payments for that child. Id. at 3. When the father refused the mother’s request for return of the middle child to her custody, the mother filed an action for contempt. Id. The trial court held that the father had child support arranged for both children, but only held him in contempt for the support for the middle child, since the mother never requested return of the eldest child. Id. The father appealed.
The Supreme Court of Georgia found that the language “while also living at home with Wife” made the child support provision self-executing, meaning that the child support was modifiable without anew order from the court. Id. at 4. Since the Court has previously held self-executing provisions such as this one to be lawful, the Court held that “it was error for the trial court to hold [the father] in contempt for relying on the self-executing provision in the parties’ settlement agreement to reduce his child support obligation when he had [the mother’s] consent to allow the children to live with him.” Id. Thus, the portion of the trial court’s judgment as to the arranged for the eldest child was reversed. Id. at 5. The Court also vacated the arranged amount for the middle child, holding that “the arranged amount should be from the time [the father] lost [the mother’s] consent to keep the middle child, rather than the full amount awarded by the trial court.” Id.