Daniel v. Daniel
| Citation | 239 Ga. 466,238 S.E.2d 108 |
| Decision Date | 07 September 1977 |
| Docket Number | No. 32269,32269 |
| Parties | Howard Thomas DANIEL v. Glenda Sutton DANIEL. |
| Court | Georgia Supreme Court |
Thomas S. Chambless, Watson, Spence, Lowe & Chambless, Albany, for appellant.
This is an appeal from an order of the Superior Court of Terrell County granting the appellee's motion for summary judgment on the appellant's counterclaim in a child support modification action.
The appellant-husband and appellee-wife were divorced in 1974. Issues of child custody, child support, alimony and property settlement were agreed to by the parties and incorporated into the final divorce judgment. On July 9, 1976, the appellee filed a petition to modify the child support provisions of the divorce judgment. In a separate and distinct proceeding, the appellee obtained a writ of fieri facias against the appellant for unpaid child support payments for the months of September 1975 through February of 1976 pursuant to Code Ann. § 30-204. In addition to answering the modification petition, the appellant filed a counterclaim contending that the procedures set forth in Code Ann. § 30-204 are unconstitutional and that the alleged child support arrearages are not required under the divorce judgment or should not be required because the parties' children were in his custody during those months by mutual agreement. The appellee filed a motion for summary judgment on the appellant's counterclaim which was granted. The appellant appeals.
1. In Wood v. Atkinson, 231 Ga. 271, 201 S.E.2d 394 (1973) we upheld the constitutionality of Code Ann. § 30-204. We have recently reviewed and upheld the principles of that decision in West Point Pepperell v. Springfield, 238 Ga. 655, 656-657, 235 S.E.2d 24 (1977). We do not agree with the appellant that decisions of the United States Supreme Court and of this court since the 1973 decision in Wood dictate a different result.
2. The original divorce decree between the parties provided for joint custody of the three minor children by mutual agreement. The appellee-wife was to have custody for the months of September through May and was to receive $117 per child per month during those months. The appellant-husband was to have alternate weekend visitation rights during those months and visitation rights over the children's Christmas vacation and between school terms. The appellant was given custody of the children for the months of June, July and August, during which time he was not required to make child support payments. The appellee was given alternate weekend visitation rights during those months. The parties also agreed to confer with each other on all matters pertaining to the health, welfare education and upbringing of the children with a view toward promoting the children's best interests.
In the fall of 1975 the appellee decided to return to school to complete her education. Not desiring to uproot the children, the parties agreed that the children should continue in the appellant's custody during the appellee's school term. Pursuant to this agreement between the parties, the children remained in the appellant's custody from September 1975 through February 1976. In February 1976 the appellee decided that the arrangement was not working out and thereafter resumed custody according to the terms of the divorce decree. Based on his understanding of the divorce decree and his understanding of the oral agreement, the appellant did not pay the appellee child support payments during September 1975 through February 1976 while he had custody of all three children and was totally supporting them. In December 1976 the appellee obtained an execution against the appellant for this unpaid child support. The appellant contends that the execution was improperly granted. We agree.
While this court has held that parties to a divorce decree cannot by private agreement modify the terms of that decree (see, e. g., Meredith v. Meredith, 238 Ga. 595(1), 234 S.E.2d 510 (1977) and cases cited therein), we find that the unusual circumstances of this case authorize a different result.
Most courts faced with the issue of a father's right to credit in child support arrearages have taken the position that a father is not entitled as a matter of law to credit for voluntary expenditures. See 47 A.L.R.3d 1039 (1973) and cases cited therein. Several jurisdictions, including many which support the above general rule, have held that a father may be given credit if equity would so dictate under the particular circumstances involved, provided that such an allowance would not do an injustice to the mother. 47 A.L.R.3d, supra at 1041. Included among these equitable exceptions are situations where the mother has consented to the father's voluntary expenditures as an alternative to his child support obligation, see, e. g., Frazier v. Rainey, 227 Ga. 350, 180 S.E.2d 725 (1971), also...
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