Julie Morris and John Tanner were divorced on April 20, 2004. At that time, the parties had three minor children. In a settlement agreement incorporated into the final divorce decree, the parties made the following provision regarding child support: The Husband agrees to pay to the Wife as child support for the minor children of the parties the sum of Seven Hundred $700 Dollars per month, per child. The Husband shall take the children as State and Federal tax deductions and the Wife shall make no claim on her State and Federal tax returns. Said sum shall be payable on the 1st day of each month and shall continue each month thereafter 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. For so long as each is in college or other secondary education, Husband’s child support obligation shall continue until such child reaches the age of twenty-three 23 years, marries, dies, becomes self-supporting, or enters the Armed Services. The final decree of divorce also provided for shared physical custody, but that Morris had primary physical custody of the three children1 and ultimate decision-making authority. In October 2005 the eldest child began living with Tanner. In July 2007, Tanner ceased making child support payments for the eldest child. Then, in May 2008, the middle child began living with Tanner and Tanner stopped paying support for that child in January 2009. In July 2009, Morris formally requested Tanner to return the middle child to her custody. When the child was not returned, Morris filed an action for contempt.
At the contempt hearing, Tanner testified that Morris agreed to the decrease in child support payments for both children; however, Morris testified that she had not so agreed. Morris admitted, however, that she did not diligently seek the return of the eldest child, who is now eighteen or older, and that she did not seek back child support for the eldest child. Upon hearing argument and considering evidence, the trial court adjudged that the total arrearage amount was $28,700 was due for both children, but, the trial court only held Tanner in contempt for the $8,400 owing in support for the middle child. The trial court also ordered the middle child be returned to the custody of Morris instanter and awarded attorney’s fees to Morris in the amount of $4,755.98. Tanner filed a discretionary application requesting appeal which this Court granted, posing the following questions to the parties: “Whether the trial court erred in finding that Mr. Tanner was in arrears in his child support payments for the parties’ oldest child and their middle child. See Perry v. Perry , 265 Ga. 186, 187-188 454 SE2d 122 1995. If so, should the award of attorney fees be vacated”
