Hancock v. Coley, 45563

• Decision Date: 09 June 1988
• Docket Number: No. 45563,45563
• Citation: 258 Ga. 291,368 S.E.2d 735
• Parties: HANCOCK v. COLEY.
• Court: Georgia Supreme Court

Page 735

368 S.E.2d 735

258 Ga. 291

HANCOCK v. COLEY.

No. 45563.

Supreme Court of Georgia.

June 9, 1988.

Ernest D. Blount, Stickbridge, for Pamela Coley Hancock.

Susan A. Chiapetta, Smyrna, John R. Mather, for John T. Coley.

GREGORY, Justice.

John Coley, appellee, and Pamela Coley Hancock, appellant, were divorced on June 19, 1981. Pamela was awarded custody of the parties' minor children and John was granted visitation rights. The decree provided, among other things, that John pay child support and alimony. Between 1983 and 1986 the parties filed numerous contempt actions against each other. On June 5, 1987 the trial court entered an order in a contempt proceeding requiring that Pamela, John, and the minor children obtain psychiatric evaluations. The order provided that John would not have visitation rights during the months of June, July, or August, 1987, and would not be liable for child support payments during that period. On September 25, 1987, the court entered an order finding that Pamela had wilfully refused to allow John to exercise his visitation rights. The court ruled that John had no obligation for child support pending further court order and transferred the case to the juvenile court with a recommendation to terminate John's parental rights.

1. Pamela contends the trial court was without authority to suspend the children's right to support from their father. In support of this argument she cites two cases dealing with whether a parent can contract away a child's right to support. Crumb v. Gordon, 157 Ga.App. 839, 278 S.E.2d 725 (1981); Williamson v. State, 138 Ga.App. 306, 226 S.E.2d 102 (1976). Those cases are not dispositive of the issue. The power of a court to fix child support is an entirely separate issue from the issue of a parent's right to contract away child support.

In its order the trial court found "[Pamela] has wilfully refused to allow [John] to exercise his visitation rights with his minor children for the past several years, despite the fact that there are Court Orders providing visitation and actions have been brought to enforce visitation ... Because of the [Pamela's] conduct in refusing visitation to [John], [John] has been unable to establish or maintain any meaningful parent-child relationship with his minor children." While we hold in division four that the court cannot modify the original decree in a contempt proceeding, it is within the power of the court to refuse to enforce child support provisions of a divorce decree at the behest of one who is refusing to comply with that same decree. Morris v. Sheffield, 214 Ga. 63, 102 S.E.2d 595 (1958). It is within the power of a court to refuse to enforce child support payments under these circumstances. It is not generally a method to be recommended and should never be used if it works a deprivation on a child.

2. Pamela complains that the trial court had no power in a contempt proceeding to transfer the issue of termination of John's parental rights to the juvenile court. Her ground for this position is that the statute which authorizes a superior court to transfer is limited in scope so that it does not include a circumstance in which an issue of termination of parental rights arises in a contempt proceeding in superior court. The statute in question is OCGA § 15-11-6(b). It provides:

"Courts of record, in handling divorce, alimony, or habeas corpus cases involving the custody of a child or children, may transfer the question of the determination of custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination. If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this article, in compliance with the order of the superior court. At any time prior to the determination of such question, the juvenile court may transfer the jurisdiction of the question back to the referring superior court."

Pamela argues that a contempt proceeding is neither "divorce," "alimony" nor "habeas corpus."

Our concern is that no shackles be placed on the power of a...