Acevedo v. Kim, S08A0798.

Decision Date03 November 2008
Docket NumberNo. S08A0798.,S08A0798.
Citation284 Ga. 629,669 S.E.2d 127
PartiesACEVEDO v. KIM.
CourtGeorgia Supreme Court

John W. Roper, Columbus, for appellant.

Leslie L. Cohn, Columbus, for appellee.

SEARS, Chief Justice.

This Court granted Deiby "Dave" Acevedo's application for permission to pursue a discretionary appeal from a declaratory judgment by the Muscogee County Superior Court in favor of his former wife, YongMi Kim, construing the child support provision of the parties' 1996 final judgment and decree of divorce. We granted the application to decide whether a complaint for declaratory judgment seeking a determination of the amount due for past child support payments states a claim upon which relief can be granted.1 We hold that it does.

1. Acevedo and Kim were divorced in Muscogee County Superior Court on September 20, 1996. They had two children, Daniel and Jonathan, born January 12, 1989, and October 23, 1992, respectively. At the time of the divorce, the older child was 7, and the younger child was 3, and the divorce decree ordered Acevedo to pay Kim child support for the children until they reached the age of majority.

The decree set Acevedo's initial child support obligation as follows: (a) $1,000 monthly per child from October 1, 1996, through May 31, 1997; and (b) $750 monthly per child from June 1, 1997, through January 31, 1998.2 The decree further provided that on February 1, 1998, and the first day of February in all succeeding even-numbered years, Acevedo's child support obligation would increase at the same rate that Acevedo's income had increased in the past two years.3 The formula, though seemingly straightforward, proved difficult in application.

Acevedo paid child support regularly for the first eight years following the divorce. During this time, Kim never once voiced an objection regarding Acevedo's calculations of the amount of the automatic increases in his child support obligation. However, by the summer of 2004, a serious dispute regarding the proper application of the formula for biennial increases had arisen. When Kim, through an attorney, raised a question with Acevedo about the amount of his child support payments over the past eight years, Acevedo did his own calculations and provided them to Kim's attorney. According to Acevedo's calculations, he had actually overpaid Kim by almost $5,000 over the past eight years.4

On September 10, 2004, Kim's attorney threatened to sue Acevedo for contempt of court unless he paid Kim almost $35,000 in alleged back-due child support payments within 21 days. Ten days later, on September 20, 2004, Acevedo filed a complaint for declaratory judgment in the Muscogee County Superior Court to determine the amount of his monthly child support obligation. The complaint noted the controversy surrounding "the method of calculation of automatic increase[s]" and asserted the "need for a judicial construction ... such that the intention of the parties may be given full effect." At the time, Daniel was 15, and Jonathan was 11.5

Kim answered, denying the need for construction of the divorce decree, and later amended her answer to add a counterclaim for "back child support through January, 2005 in the amount of $56,153.66." The ensuing complicated procedural history in the trial court, which is not relevant to this appeal, concluded with the entry of an August 21, 2007 declaratory judgment ordering Acevedo to pay Kim $54,464.48, without interest, at the rate of $1,000 per month until the debt was paid in full.

After a brief detour through the Court of Appeals, we granted Acevedo's application for discretionary appeal and directed the parties to address two specific questions in their briefs:

Did [Acevedo's] petition seeking a declaratory judgment as to his obligation for past child support state a claim for relief? Porter v. Houghton, 273 Ga. 407, 542 S.E.2d 491 (2001); Kaylor v. Kaylor, 236 Ga. 777, 225 S.E.2d 320 (1976); Oxford Finance Cos. v. Dennis, 185 Ga.App. 177, 363 S.E.2d 614 (1987).

If the petition was sufficient to confer jurisdiction on the trial court to enter a declaratory judgment, did the trial court exceed that jurisdiction by granting [Kim] affirmative relief which she apparently did not seek by way of counterclaim? See Allstate Ins. Co. v. Talbot, 198 Ga.App. 190, 400 S.E.2d 694 (1990). Compare Myers v. United Services Auto. Association, 130 Ga.App. 357, 203 S.E.2d 304 (1973).6

2. In 1990, this Court answered the first question in Weaver v. Jones.7 In Weaver, the final decree of divorce provided for the wife to have custody and the father to pay child support. It included a provision allowing the child to choose to live with the father at age 14, at which point the mother would have to pay child support to the father. The child went to live with his father when he turned 14, but the mother never paid any child support. After the child turned 18, the father attempted to collect the support payments that had accrued over the past four years, and the mother responded by filing a declaratory judgment action to secure a conclusive determination of her obligations under the divorce decree. We rebuffed the father's claim that a declaratory judgment action was an inappropriate procedural vehicle to decide the issue, holding that a "declaratory judgment is an appropriate means of ascertaining one's rights and duties under a contract and decree of divorce."8

The decision in Weaver was no aberration. It is well established under Georgia law that a declaratory judgment action is a proper method for determining one's rights and obligations under a divorce decree that is unclear.9 The parties have offered no sound argument for overruling this line of decisions.

Contrary to the dissent's claim, our decision in Porter v. Houghton, which we cited in our question to the parties, does not compel a contrary conclusion.10 It is true, as we said in Porter, a title to land case, that "[t]o proceed under a declaratory judgment a party must establish that it is necessary to relieve himself of the risk of taking some future action that, without direction, would jeopardize his interests."11 However, unlike the plaintiff in Porter, Acevedo's complaint alleged the need for a judicial determination of his rights and obligations under the divorce decree to relieve himself of the risks of his planned future course of action. Acevedo planned to continue denying Kim's claim of back-due child support based on his understanding of the formula set forth in the divorce decree for calculating biennial increases in his support obligation. However, doing so subjected him to the very real risk of being brought up on charges of contempt of court. Thus, he needed direction from a judicial tribunal to remove the uncertainty regarding the consequences of his planned future actions.

Kaylor v. Kaylor, a will case cited in our question, is also distinguishable.12 In that case, the plaintiffs, as executors of the decedent's estate, sued themselves in their individual capacities as the sole beneficiaries under the will. The purpose of the declaratory judgment action was to settle a question relevant for estate tax purposes. We held that it was clear from the face of the complaint that there was "no justiciable controversy between the plaintiffs as executors and the defendants as individuals and beneficiaries under the will" and that "[t]he actual adverse party is the United States (Internal Revenue Service)," which was "not a party or represented in th[e] action."13 Since Georgia's version of the Uniform Declaratory Judgments Act14 requires the existence of a justiciable controversy, we held that the trial court lacked jurisdiction to adjudicate the complaint and therefore vacated the declaratory judgment. By contrast, it is undisputed that there is an actual, justiciable controversy between Acevedo and Kim. The sole question is whether a declaratory judgment action is the proper procedural vehicle for resolving the dispute.

The third case we cited in our question, Oxford Finance Cos. v. Dennis, is distinguishable as well, because like Kaylor v. Kaylor, the decision turned on the absence of a justiciable controversy between the parties.15 In any event, to the extent Kaylor v. Kaylor and Oxford Finance Cos. v. Dennis could be read to bar a declaratory judgment action to determine the amount due for past child support payments, they have been superseded by our later decision in Weaver v. Jones.

The argument that Acevedo could raise his claims against Kim as a defense in a contempt action if Kim ever chose to bring one misses the point, because, as a matter of law, it matters not that Acevedo could be heard in another type of action. The declaratory judgments act states plainly that "[r]elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies."16 As we have explained:

A declaratory judgment is an appropriate means of ascertaining one's rights and duties under a contract and decree of divorce. [Cit.] The wife's contention that the husband must use the modification procedures set out in Code Ann. § 30-220 is without merit. "Relief by declaratory judgment shall be available notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies." Code Ann. § 110-1101(c).17

It also seems unwise to create a legal rule that would require Acevedo and other noncustodial parents like him to risk the very real possibility of being publicly accused of contempt of court by the custodial parent of his children in order to obtain a binding judicial determination on whether the custodial parent is owed additional child support. It makes little sense to force parents having a disagreement over money matters to hurl public charges of contempt of court at each other, along with its attendant...

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