Ehrman v. Moser, 57164

• Citation: 148 Ga.App. 857,253 S.E.2d 216
• Decision Date: 01 February 1979
• Docket Number: No. 57164,57164
• Parties: EHRMAN v. MOSER.
• Court: United States Court of Appeals (Georgia)

Page 216

253 S.E.2d 216

148 Ga.App. 857

EHRMAN v. MOSER.

No. 57164.

Court of Appeals of Georgia.

Argued Jan. 4, 1979.

Decided Jan. 15, 1979.

Rehearing Denied Feb. 1, 1979.

King & Spalding, M. Robert Thornton, Atlanta, for appellant.

Holland & Holland, Nancy S. Holland, Lithonia, for appellee.

WEBB, Judge.

The natural father appeals from an order terminating his parental rights and granting the stepfather's petition for adoption of his minor children pursuant to Code Ann. § 74-401 et seq.

The trial court found that appellant and the mother were divorced pursuant to an Ohio decree under which he was to make specified child support payments to her for the minor children placed in her custody, and she was to pay specified debts incurred during the marriage; that subsequent to that final decree, "the parties entered into a personal agreement, not approved by the courts of Ohio, the substance of which was as follows: the natural mother agreed to release the natural father from his obligation to make support payments in exchange for the natural father's agreement (a) not to attempt to prevent the natural mother from leaving the State of Ohio to go to the State of Georgia with the children, and (b) to pay the debts which the Ohio decree specified as being the obligation of the natural mother. This agreement was in writing, and signed by both the natural father and the natural mother . . . The natural father, pursuant to the aforementioned written agreement, paid the debts of the natural mother and did not attempt to prevent the natural mother from leaving the State of Ohio and going to the State of Georgia with the children," and that the appellant had ceased making child support payments to the mother in accordance with their agreement. The court concluded that appellant could not "bargain away" his court-ordered duty of support of the minor children; that his post-decree agreement with the mother did not constitute "justifiable cause," within the meaning of Code Ann. § 74-405(a)(2), for him to have ceased making support payments; ¹ and that by doing so he had abandoned his children.

We reverse. The phrase "justifiable cause," as used in the adoption statute pursuant to its amendment by Ga.L.1977, pp. 201, 211, is substantially the same as "justifiable reason" as it appears in Code § 30-219 providing for attachment for contempt for failure to pay alimony; and even though it was not brought to the attention of the trial court, the Supreme Court, citing Hawkins v. Edge, 218 Ga. 463, 128 S.E.2d 493 (1962), and Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782 (1953), has recently held that although a post-decree agreement without court sanction is ineffective to modify the terms of the decree, ² nevertheless the father's good-faith...