Newsome v. Newsome, 28695

• Decision Date: 04 April 1974
• Docket Number: No. 28695,28695
• Citation: 205 S.E.2d 291,232 Ga. 49
• Parties: Joy Cheryl NEWSOME et al. v. Kenneth Allen NEWSOME.
• Court: Georgia Supreme Court

Page 291

205 S.E.2d 291

232 Ga. 49

Joy Cheryl NEWSOME et al. v. Kenneth Allen NEWSOME.

No. 28695.

Supreme Court of Georgia.

April 4, 1974.

Oliver K. Mixon, Augusta, for appellants.

Nicholson, Fleming & Blanchard, Jim Blanchard, Jr., Augusta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

Can a mother, suing as next friend for the minor child in her custody under a divorce decree, maintain an action against the father for support of the child after rendition of the final divorce decree in which the parties agreed the father would be relieved of support and relinquish all parental right to the child? This is the basic question involved in this appeal. The trial court determined there could be no recovery and the mother, for herself and the minor child, has appealed that decision.

We affirmed the trial court's judgment. In Allen v. Allen, 228 Ga. 523(2), 186 S.E.2d 743, this court said: 'Where, . . . a property and alimony settlement is entered into between the parties to the divorce and such agreement is approved by the court, and where the wife by the terms of such agreement is given full and complete custody of the child and is bound to support such child, she is barred from filing an original action to seek reimbursement from the father for support furnished the child.'

'The act approved March 21, 1958 (Ga.L.1958, p. 204), does not give a right of action to the defendant's former wife to require him to pay for the support of the minor children awarded to her in a final decree of divorce, which made no provision for their support, where it does not appear that the children were awarded to a third party or to the mother subsequently to the divorce decree.' Thomas v. Thomas, 215 Ga. 383, 110 S.E.2d 657.

The rationale of these cases requires that we hold the appellants are not entitled to maintain the present action for child support. For additional authorities discussing the legal issue involved in similar circumstances, see Strange v. Strange, 222 Ga. 44, 148 S.E.2d 494, and Summers v. Summers, 212 Ga. 614, 94 S.E.2d 725.

Judgment affirmed.

All the Justices concur, except NICHOLS, P.J., and INGRAM and HALL, JJ., who concur in the judgment only.

INGRAM, Justice (concurring specially).

I concur in the judgment reached in this case because paternity was in dispute at the time this divorce decree was entered and the alleged father 'relinquished' his parental rights in exchange for the mother's waiver of child support.

What concerns me is the broad view taken by this court in this and earlier cases. They seem to foreclose a mother in every instance from seeking future child support from the father subsequent to a 'consent' divorce decree in which the mother obtains custody and assumes the child's support.

This means the husband, who is either the admitted father or the adjudicated father, thereafter escapes all future liability for 'the maintenance, protection, and education of his child.' Code § 74-105 provides that: 'Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child.' (Emphasis supplied.) The question arises whether this duty of the father can be bargained away by a mother even with the approval of the court. I submit that it violates public policy to permit a child's support from his father, which arises as a statutory duty, to be bartered away as if it were the 'property' of the mother to be exchanged for some personal...