Supersedeas

What on earth does “supersedeas” mean?

When a trial court enters a final judgment, such as a judgment for divorce or a final order for child custody, either party has the right to appeal the judgment to the Court of Appeal.  When the appeal is made the final judgment or order does not take effect. It is stayed until a decision is made on the appeal.  The halting of the judgment or order while the appeal is underway is called “supersedeas.”

So what happens if (a) the trial court had previously issued a temporary order for child custody, visitation, child support, and alimony, (b) the trial court then issued a final judgment different from the temporary order, and (c) a party appeals the final judgment.  Does the temporary order continue in effect or should the parties start following the final judgment or order?

The answer is: (a) the new provision regarding custody and visitation should be followed; and (b) the prior, temporary provisions regarding child support and alimony should be followed.  But what if the final order switches custody and reverses the direction of the child support? Does the party who now has custody under the final order continue to pay child support under the temporary order?  Obviously, this would not make any sense because the child support money would be going away from the child rather than toward the child.  Yet this is what the law seems to require.

Fortunately, there is a solution to this problem:  the trial judge can order that the supersedeas stay does not apply.  The attorney representing the party who now has custody and should be receiving child support can ask the trial judge to make the new child support effective during an appeal.  Indeed, the attorney should also make this request anytime the final judgment or order benefits their client and an appeal is taken.  The judge can always deny the request, but it does not hurt to ask.

Child Support Deviation for Shared Custody

It comes as a surprise to many the child support does not automatically change when custody moves from sole to shared.  With sole physical custody, the child lives with one parent and visits with the other parent, typically on alternating weekends and holidays.  With shared physical custody the child lives about half the time with one parent and half the time with the other. Yet the parent with the larger income can wind up paying the same amount of child support as if the child was living with the other parent full time.

Under Georgia child support law, full child support is presumed correct, even with shared physical custody.   The parent seeking a child support deviation from the presumptively correct amount must convince the judge to exercise his or her discretion.  The judge can only grant any request for deviation if the party seeking the deviation proves:

1.  The presumptive amount of child support would be unjust or inappropriate; and

2.  The best interest of the child will be served by the deviation.

So how is this proven?  Let’s say Mom and Dad share equal time with the child and Dad’s income is $75,000 per month and Mom’s income is $25,000.  For simplicity, let’s also say that it costs $500 to feed the child for a month. Some of Dad’s child support is a contribution toward Mom’s cost of feeding the child.  But now that the child spends half of her time with Dad, Mom’s cost for food is reduced to $250 and Dad is now paying $250 directly for food.  Mom’s cost for supporting the child is being reduced, while Dad’s cost has increased.

Dad’s argument for a downward deviation should be made in detail from the actual expenses for all such costs for the child.  Dad should show that it is appropriate and in the best interest of the child for him to keep some of the child support money so he can pay the expenses while the child is with him.  Essentially, he argues that he is now supporting the child directly at some extend by buying food rather than indirectly by paying Mom child support so that she can buy food.

If we are representing Mom, we argue as follows:

1.  Many of Mom’s major expenses, such as her lease or mortgage, her car loan, etc., do not change at all.

2.  With her much lower income, Mom is barely scraping by as it is.  She can’t pay her bills if child support is reduced.

3.  If child support is reduced, Mom’s ability to provide for the child while the child is with her will suffer.

4.  Dad’s income is three times Mom’s income.  He is able to pay the presumptively correct amount of child support and still provide for the child while the child is with him.

Again, all of the claims would be supported by the actual costs and income of the parties.

So who wins the argument?  It’s up to the judge.  But the judge is much more likely to rule in your favor if you put forward a detailed argument based on the specific income and expenses of the parties. A Brunswick family law specialist can help you prepare and present a strong argument.

Finally, in order to make any of these arguments you must prepare an accurate financial statement based on calculations from actual expenses.  All too often parties submit dubious financial statements based only an estimates and guesses. It is hard to convince a judge with numbers that the judge does not believe.

 

 

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