Ga. Dept. of Human Resources v. Deason, A99A0934.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: ELDRIDGE.
• Citation: 238 Ga. App. 853,520 S.E.2d 712
• Parties: GEORGIA DEPARTMENT OF HUMAN RESOURCES v. DEASON.
• Docket Number: No. A99A0934.,A99A0934.
• Decision Date: 07 July 1999

520 S.E.2d 712
238 Ga. App. 853

GEORGIA DEPARTMENT OF HUMAN RESOURCES
v.
DEASON

No. A99A0934.

Court of Appeals of Georgia.

July 7, 1999.

520 S.E.2d 713

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, for appellant

Lewis M. Groover, Jr., Atlanta, for appellee.

ELDRIDGE, Judge.

On August 5, 1966, Sheryn C. Deason and James E. Deason, residents of Florida, were married in Miami, Florida. On June 20, 1973, the parties were divorced in the Circuit Court of Broward County, Florida. Immediately prior to the divorce action being filed, each party had been bona fide residents of Broward County, Florida. There were two minor children born of this marriage: Jennie Deason, born April 7, 1972, and James E. Deason, Jr., born December 19, 1966.

[238 Ga. App. 854] On May 7, 1973, James E. Deason was personally served with valid process but did not answer the divorce, custody, and child support action. On May 29, 1973, the parties entered into a written custody, child support, and property settlement agreement that was incorporated into the final judgment. The agreement provided that James Deason would pay to Sheryn Deason 70 per week in child support, which would decrease by 35 per week when each child attained the age of 21, became self-supporting, or married.

As of April 30, 1994, James Deason was in arrearage in child support and owed Sheryn Deason back child support in the amount of 58,220. On April 30, 1994, the State of Florida, Department of Health & Rehabilitative Services in Broward County, had Sheryn Deason execute an affidavit of child support which stated that, since January 1975, James E. Deason, Sr., had defaulted on payment of any child support.

520 S.E.2d 714

On November 20, 1997, the District Attorney for Gwinnett County filed a petition for enforcement of a foreign order by contempt under 28 USC § 1738B against James E. Deason, Sr., for the State of Georgia, Department of Human Resources, ex rel. Sheryn C. Deason. On August 4, 1997, James E. Deason accepted, waived, and acknowledged service in the Petition for Enforcement of Foreign Order by Contempt under 28 USC § 1738B and submitted to the jurisdiction and venue of the Superior Court of Gwinnett County. At the time the petition was filed, he was believed to be living at 3255 Trotter's Walk Circle, Snellville, Gwinnett County, Georgia; however, in his answer he denied this. Rule nisi issued on November 20, 1997, for a hearing on January 20, 1998, but was not received. On January 28, 1998, a summons and rule nisi were reissued for hearing on March 31, 1998. On April 23, 1998, the hearing was continued by court order until May 5, 1998. On May 5, 1998, James E. Deason filed an answer alleging that the judgment was dormant since 1980; that Sheryn C. Deason was guilty of laches in delay in collecting it; and that the allegations of the complaint were denied. On May 7, 1998, by written order the hearing was continued until June 16, 1998

The only evidence in the case consists of the verified petition and answer. There was no evidentiary hearing. The record is silent as to the following: whether there has been an effort to collect this arrearage earlier, and, if not, why not; whether there were any reasonable justifications for the delay; whether James E. Deason has hidden for the last 25 years or if his whereabouts were known; when he last lived in Florida; and whether he is a resident of Georgia, and, if so, for how long and where.

On October 9, 1998, after hearing oral argument on the defenses, the trial court made the following findings of fact: the facts in the petition are correct; the petition claims an arrearage of 58,220, [238 Ga. App. 855] although the court made no finding that this was true; James E. Deason, Jr., became 21 on December 19, 1987; Jennie Deason became 21 on April 7, 1993; the petition for enforcement of foreign order by contempt to collect 58,220 in due and owing child support was filed five years, seven months, and thirteen days after the final installment was due; and no evidentiary hearing was held, but was based upon the undisputed facts urged by the parties.

In the conclusions of law, the trial court relied exclusively upon Georgia substantive and procedural law to conclude that

[a]limony judgments, like all other judgments, are subject to and controlled by our Dormancy and Revival Statutes and any applicable statute of limitation. A lump sum alimony judgment is dormant after the expiration of seven years, and is not subject to revival after the expiration of ten years. This applies to said payments due prior to July 1, 1997. [Cit.]

"There is no question that child support judgments are subject to statutes regarding dormancy even though the enforcement of these judgments is by means of contempt action." Parker v. Eason, 265 Ga. 236, 454 S.E.2d 460 (1995). On October 9, 1998, the trial court dismissed the complaint as barred by the statute of limitation. On December 9, 1998, appellate review under OCGA § 5-6-35 was granted. On December 11, 1998, notice of appeal was filed.

1. The first enumeration of error is that the trial court improperly applied Georgia law, rather than Florida law, to the petition for enforcement of a foreign child support order. We agree.

The petition in this case was brought pursuant to the Full Faith & Credit for Child Support Orders Act ("FFCCSOA"), 28 USCS § 1738B, to enforce a Florida child support judgment.

(a) Despite the urging of the Attorney General, the Uniform Interstate Family Support Act ("UIFSA"), OCGA § 19-11-160 et seq., cannot be applied in this case; it was passed by the General Assembly in 1997 to replace, in the future, the Uniform Reciprocal Enforcement of Support Act ("URESA"). OCGA § 19-11-40 et seq., Ga. L.1997, pp. 1613, 1655, § 32. The language of the Act did not clearly and plainly express the intent of the General Assembly that the provisions of the Act apply retroactively. Ga. L.1997, pp. 1613, 1679, § 36.

520 S.E.2d 715

The effective date of OCGA § 9-12-60(d) [(Ga.L.1997, pp. 1613, 1616, § 2) ] is July 1, 1997, and there is no expression of any legislative intent that it apply to judgments for child support and spousal support entered before that date. [Cits.] [238 Ga. App. 856] Giving that amendment a retroactive interpretation would have the far-reaching effect of authorizing initiation of a suit after July of 1997 to recover arrearages on any and all child or spousal support judgments that were entered in this state at any time prior to July of 1987. Our review of the 1997 enactment as a whole does not lead us to the conclusion that the General Assembly's implicit intent was that OCGA § 9-12-60(d) [(Ga. L.1997, p. 1613 et seq.)] have such a broad and significant impact. [Cits.]

(Emphasis in original.) Brown v. Brown, 269 Ga. 724, 726-727, 506 S.E.2d 108 (1998). In fact, OCGA § 19-11-40.5 expressly provided that UIFSA and the other provisions of the Act apply to proceedings initiated on or after January 1, 1998, while URESA continued to apply to proceedings pending prior to January 1, 1998. Ga. L.1997, pp. 1613, 1655, § 32.

"A repealing Act will not be given retroactive operation so as to divest previously acquired rights. A statute is never to be given a retroactive operation unless such construction is absolutely demanded." (Citations and punctuation omitted.) J. Scott Rentals v. Bryant, 239 Ga. 585, 587, 238 S.E.2d 385 (1977).

Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention.... Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.

(Citations and punctuation omitted.) Polito v. Holland, 258 Ga. 54, 55(2), (3), 365 S.E.2d 273 (1988); see also Pritchard v. Savannah Street &c. R. Co., 87 Ga. 294, 13 S.E. 493 (1891). "The general rule is that procedural laws should be applied retroactively unless the legislature has expressed a contrary intent," which it did regarding Ga. L.1997, p. 1613. Mug A Bug Pest Control v. Vester, 270 Ga. 407, 509 S.E.2d 925 (1999). Ga. L.1997, p. 1613, creates both substantive and procedural statutory changes and affects vested rights, so that the legislature intended for it to be applied prospectively. Id.

While Ga. L.1997, p. 1613, cannot be applied retroactively because of the language in its effective date, the Act can assist in determining the legislative intent regarding URESA and the public policy in Georgia regarding collection of foreign child support judgments. [238 Ga. App. 857] The General Assembly expressed through the Act the public policy of Georgia regarding several existing evils that it desired to correct through the Act: (1) judgments for child support, domestic or foreign, no longer are subject to a statute of limitation, Ga. L.1997, pp. 1613, 1616, § 1 (OCGA § 9-3-20); (2) judgments or orders for child support no longer become dormant, Ga. L.1997, pp. 1613, 1616, § 2 (OCGA § 9-12-60(d)); (3) each child support payment or installment is a judgment which, when due, is entitled to full faith and credit, Ga. L.1997, pp. 1613, 1618, § 6 (OCGA § 19-6-17(e)(1), (2)); (4) foreign support orders are unmodifiable, except by FFCCSOA, Ga. L.1997, pp. 1613, 1619-1620, § 7 (OCGA § 19-6-26); (5) the choice of law is determined, Ga. L.1997, pp. 1613, 1674, § 33 (OCGA §§ 19-11-163; XX-XX-XXX); and (6) many other statutory changes. "The recent amendment ... affirms the legislative intent that a plaintiff have a broad [and liberal] right" regarding collection of a foreign child support judgment that was...