Department of Human Resources v. Chambers, A93A2087
| Decision Date | 28 January 1994 |
| Docket Number | No. A93A2087,A93A2087 |
| Citation | 211 Ga.App. 763,441 S.E.2d 77 |
| Parties | DEPARTMENT OF HUMAN RESOURCES v. CHAMBERS. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., William M. Droze, Asst. Atty. Gen., Cynthia H. Frank, Staff Atty., for appellant.
McFarland & Associates, Robert P. McFarland, Charles E. Clark, for appellee.
Pursuant to a divorce decree in which Peggy Lee Chambers was awarded custody of her minor children, the father, Deryle Chambers, was ordered to pay child support through the Georgia Department of Human Resources (DHR). Mr. Chambers failed to make the required payments, accrued a substantial arrearage, and filed for protection under Chapter 13 of the Federal Bankruptcy Act.
DHR ex rel. Ms. Chambers filed a proof of claim in the bankruptcy action based on the child support arrearage which had accrued prior to the bankruptcy. After Mr. Chambers objected to the proof of claim, the bankruptcy judge entered an order lifting the automatic stay of 11 USC § 362 "for the limited purpose of allowing the Superior Court ... to conduct [a hearing] ... to determine the exact amount of pre-petition child support due...." The order further provided that the stay otherwise remained in effect, it being the intention of the bankruptcy court "that the issue of payment, collection or enforcement of the judgment return to this Court for further proceedings." Pursuant to the limited lift of stay, the superior court entered a judgment determining that Mr. Chambers owed $16,395 in pre-petition child support arrearage. However, in addition to determining the amount owed, the superior court also ordered that Mr. Chambers pay $4,600 of the arrearage under the Chapter 13 plan at not less than $90 per month; that $11,795 of the arrearage be paid outside of the plan at the rate of $325 per month, but that payment of this amount be delayed until one of the parties' two children residing with Ms. Chambers reached the age of 18, at which time interest would begin to accrue on the unpaid amount. The superior court further ordered that
We granted the application of DHR ex rel. Ms. Chambers for a discretionary appeal from the order of the superior court. DHR claims the superior court erred by: (1) ordering Ms. Chambers not to initiate any other enforcement or collection actions for child support; (2) ordering the postponement of arrearage payment until after a child reached the age of 18; and (3) ordering that interest accrue on the postponed arrearage only after a child reached age 18.
1. We first address whether or not the issues in this appeal have been rendered moot. The record reflects that after the notice of appeal was filed in this case, the trial court entered an order consented to by the parties which amended the payment terms of the previous court order from which this appeal was taken, and purported to settle the child support dispute between the parties. "The filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect." Brown v. Wilson Chevrolet-Olds, 150 Ga.App. 525, 529, 258 S.E.2d 139 (1979). A trial court is empowered to dismiss a notice of appeal where the questions presented have become moot, but this was not done in conjunction with the consent order. See Attwell v. Lane Co., 182 Ga.App. 813, 814, 357 S.E.2d 142 (1987).
Despite the ineffectiveness of the agreement as a court order, the parties clearly agreed to settlement terms rendering the issues in this appeal moot. Though technically the terms are contrary to the previous existing court order, they are obviously not contrary to the terms the trial court and the parties intended to incorporate in a valid consent order, nor do they constitute a consent by Ms. Chambers to a reduction, remission or other relief of the father's child support payments in violation of the trust imposed on her to see that court ordered child support is applied solely for the benefit of her children. Stewart v. Stewart, 217 Ga. 509, 510, 123 S.E.2d 547 (1962); Law Office of Tony Center v. Baker, 185 Ga.App. 809, 810, 366 S.E.2d 167 (1988). Nevertheless, Ms. Chambers argues that the appeal is not moot because the consent order was without effect, while Mr. Chambers contends otherwise. Despite their previous agreement to settle the case on the terms in the consent order, the consent order is not a binding court order, and there remains the possibility of future litigation between the parties over the issues raised in the appeal. Compare American Cyanamid Co. v. Carter, 164 Ga.App. 538, 539-540, 298 S.E.2d 276 (1982). Accordingly, we conclude the appeal is not moot.
2. Initially, we note the superior court order, to the extent it did more than determine the amount of child support arrearage under the limited lift of stay, may have exceeded the jurisdiction of the superior court in violation of the automatic stay provisions of 11 USC § 362. Carver v. Carver, 954 F.2d...
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