Bisno v. Biloon

• Decision Date: 19 February 1982
• Docket Number: No. 62631,62631
• Citation: 291 S.E.2d 66,161 Ga. App. 351
• Parties: BISNO v. BILOON et al.
• Court: Georgia Court of Appeals

Page 66

291 S.E.2d 66

161 Ga.App. 351

BISNO v.BILOON et al.

No. 62631.

Court of Appeals of Georgia.

Feb. 19, 1982.

John H. Hicks, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Jesse Echols, Joseph J. Drolet, Margaret V. Lines, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

The instant appeal raises issues concerning the intrastate applicability of the Georgia Uniform Reciprocal Enforcement of Support Act (URESA), Code Ann. § 99-901a et seq.The marriage between appellant-husband and appellee-wife was dissolved by a final judgment and decree of divorce entered by the Superior Court of Clayton County in 1974.The divorce decree provided that appellant would pay $250 per month as child support for each of his two children.It is undisputed that appellant has been in full compliance with his child support obligation under the Clayton County divorce decree.However, in 1980appellee filed a URESA petition in Bibb County, the county of her residence.Attached to appellee's petition was her affidavit, in which she asserted that appellant"should be required to pay" as child support "$1,100.00 per month ($550.00 per child)."Also attached to her petition was appellee's unsworn statement that "[t]he present amount of child support [$250 a month per child] is, ..., the original amount ordered in 1974 and does not reflect the substantial change of circumstances in [appellant's] income and the cost of caring for the children as they grow."Pursuant to the order of the Superior Court of Bibb County, appellee's petition was transmitted to the Superior Court of Fulton County, the county of appellant's residence.The Superior Court of Fulton County found that a URESA petition was a proper procedural vehicle by which to seek a modification of a valid and existing judgment awarding child support, that the Clayton County decree was not res judicata as to the amount of child support to be paid by appellant until modified pursuant to Code Ann. § 30-220 et seq. and that appellant's child support obligation should be modified upward to $350.00 per month for each of his children.It is from this URESAorder modifying and increasing his child support payments that appellant appeals.

URESA has intrastate application.Code Ann. § 99-905a.Also, "[t]he remedies of [URESA] are in addition to and not in substitution of any other remedies."Code Ann. § 99-904a.Thus the issue for resolution in the instant appeal is whether URESA, in addition to Code Ann. § 30-220 et seq., may be used for the modification of a Georgia judgment awarding child support.

The purpose of URESA is to improve and extend the enforcement of duties of support.Code Ann. § 99-902a."Duties of support applicable under [URESA] are those imposed or imposable under the laws of any State where the obligor was present during the period for which support is sought.The obligor is presumed to have been present in the responding State during the period for which support is sought until otherwise shown."Code Ann. § 99-907a.Thus, where the URESA obligor was present in Georgia during the relevant time, it is the laws of this state regarding the duties to support that are at issue.

Under the laws of this state the provisions of Code Ann. § 30-220 et seq. apply to the Clayton County decree awarding child support.Code Ann. §§ 30-223.1and30-225.1(c).Under former Code Ann. § 30-220(Ga.L.1955, pp. 630, 631, as amended byGa.L.1964, pp. 713, 714) which is applicable to the 1974Clayton County decree under the holding in McClain v. McClain, 241 Ga. 422, 246 S.E.2d 187(1978), "[t]he judgment of a court providing permanent alimony for the support of a wife or child or children, or both, shall be subject to revision upon petition filed by either the husband or the wife showing a change in the income and financial status of the husband."Also under the laws of this state, until such a petition is brought the original permanent decree is res judicata as to the amount a father is obligated to pay for the support of his children.Roberts v. Mandeville, 217 Ga. 90, 92, 121 S.E.2d 150(1961).Likewise, under Code Ann. § 30-225.1(a), "[s]o long as a party against whom is rendered a permanent alimony judgment remains or is domiciled in this State, the exclusive procedure for the modification of such judgment shall be by a proceeding instituted for such purposes in the superior court of the county in which venue is proper."Therefore, the duty to support in Georgia where there has been a prior award in this state of child support is to make such payments as are required under that award until such time as that duty is modified pursuant to the procedure established by Code Ann. § 30-220 et seq. and no court of this state has authority to modify that duty otherwise.Roberts, 217 Ga. 90, 121 S.E.2d 150supra;Deese v. Deese, 230 Ga. 105, 196 S.E.2d 16(1973).

Since, under URESA, the courts are compelled to enforce the duties of support "imposed or imposable" under the laws of this state and the law of this state provides that a permanent award of child support by a Georgia court is res judicata and judicially establishes the duty of the obligor until a modification of that duty is secured through the exclusive procedure of Code Ann. § 30-220 et seq., it follows that a Georgia court has no authority to entertain a URESA petition which asks for a modification of a prior award of child support by a court of this state.Modification of a Georgia award of child support is not a remedy provided for by URESA because, under the applicable laws of this state, the duty to provide support in an amount greater or lesser than that provided for by the prior award is imposable only under the provisions of Code Ann. § 30-220 et seq.Therefore, contrary to the trial court's interpretation of URESA in the instant case, " '[a]ny order of support issued by a court of this State when acting as a responding [court] shall not supersede any previous order of support issued in a divorce or separate maintenance action ...'Thus, the ... URESAorder[does] not supersede the ... divorce decree ordering child support; and by the same token, the URESAorder[does] not constitute a modification of the ... support order as if it were a proceeding under Code Ann. § 30-220(a)."Ray v. Ray, 247 Ga. 467, 469, 277 S.E.2d 495(1981).

That such an interpretation of URESA is necessary as well as required is readily apparent.By its very title and stated purpose URESA is a law which seeks to improve the enforcement of the duty to support.To hold that URESA provides an additional procedure for the modification of that duty which has been established by a previous judicial determination would, in effect, emasculate and obviate our modification statute.Under the interpretation of URESA advanced by appellee and adopted by the trial court, the "exclusive" procedure of Code Ann. § 30-220 et seq. would be "exclusive" only in the very limited case where both the obligee and the obligor were residents of the same county of this state.Under appellee's interpretation of URESA, a resident obligor on a prior Georgia judicial award of child support could have his duty to support modified in a proceeding which is instituted by filing a petition not in the county of his residence but in the county of residence of the obligee, which is then "prosecuted" by a district attorney in a hearing in which the obligor's defenses are limited (Code Ann. § 99-938a(a)) and at which, pretermitting the terms of the prior award or a change of condition subsequent thereto, the court need only find a "duty of support"(Code Ann. § 99-920a).

We do not believe the intent of the General Assembly in enacting URESA was that resident obligors on prior judicial awards of child support be denied the right to a jury trial on the issue of change of condition by being "prosecuted" in a quasi-criminal hearing at which a law enforcement official of this state represents the obligee." 'The whole purpose of the law is to require a respondent husband to support his dependents, and the Legislature could never have intended that a state attorney of this state, a public prosecuting official, who represents the dependents in such a proceeding, should be transformed into an attorney representing a private client in a divorce suit.'[Cit.]"Thibadeau v. Thibadeau, 133 Ga.App. 154, 156, 210 S.E.2d 340(1974).

When the General Assembly enacted Ga.L.1979, pp. 466, 495 and amended URESA to redefine "duty of support," it made its legislative intent manifest: "it is the intent of the General Assembly and of this Act that no contract made or judgment, order, or decree rendered prior to the effective date of this Act should be overturned, modified, or disturbed except to the extent absolutely required by the Constitution of this State or of the United States.Nothing in this Act, however, shall be construed to prohibit modification of judgments, decrees, or orders to the extent such modification is expressly authorized by statute."(Emphasis supplied.)Ga.L.1979, pp. 466, 469.Thus it is the apparent intent of the General Assembly that URESA, which addresses the enforcement of the "duties of support," not be construed as a vehicle for denying modification as otherwise authorized by law.Under appellee's interpretation, URESA, not only would provide her a vehicle for securing...