Singleton Const. Co. v. State of Ga. Dept.
| Decision Date | 03 September 2003 |
| Docket Number | A03A1546. |
| Parties | SINGLETON D/B/A SINGLETON CONST. CO. v. STATE OF GA. , DEPT. OF HUMAN RESOURCES EX REL DRAYTON. |
| Court | Georgia Court of Appeals |
On December 5, 2002, Joe Singleton d/b/a Singleton Construction Company filed his notice of appeal from the order of November 27, 2002, holding him in contempt for ignoring an income deduction order for an employee brought by the State of Georgia, Department of Human Resources, ex rel Ebony M. Drayton, James L. Drayton, and Jasmine R. Drayton. Finding no error, we affirm.
On December 18, 1998, in Civil Action Number DR97-1998-BA, the Superior Court of Chatham County entered a child support award against Joe Drayton for support of his three minor children. On November 19, 1999, Drayton was held in contempt and jailed for non-payment. On December 8, 1999, the trial court entered an Income Deduction Order for the first time; the order stated that previously on December 7, 1999, Drayton had purged his earlier contempt by making the previously ordered payments of arrearage and attorney fees; that Drayton had been released from jail upon paying the sums; that an Income Deduction Order for future payments was imposed; and that it was captioned "Terms For Release of Defendant Being Held For Child Support Contempt And Income Deduction Order." At the time of the entry of the Income Deduction Order and while in jail, Drayton was the employee of Joe Singleton d/b/a Singleton Construction Company.
On December 8, 1999, counsel for the Child Support Enforcement sent a copy of the Income Deduction Order, as well as written notice by certified mail - return receipt requested - to Singleton Construction Company, ATTN: PAYROLL, P. O. Box 23614, Savannah, Georgia 31402. On December 9, 1999, the return receipt was signed by Ernestine Singleton for Singelton Construction Company.
On August 13, 2002, the State of Georgia, Department of Human Resources, ex rel Ebony M. Drayton, Joe L. Drayton, III, and Jasmine R. Drayton filed a complaint for contempt sanctions for failure to remit child support against Joe Singleton d/b/a Singleton Construction for failure to withhold from Drayton's wages as ordered. On September 17, 2002, service was made upon counsel for Singleton for a rule nisi hearing to be held on October 16, 2002. On October, 16, 2002, Singleton sought to make a special appearance without submitting to the jurisdiction of the court by filing his general answer and a motion to dismiss; neither the answer nor the motion to dismiss raised any due process or other constitutional issues. On October 16-17 and 24, a hearing was held; the motion to dismiss was denied, and Singleton was ordered to appear for trial. By order of December 2, 2002, Singleton was held in contempt, ordered jailed until he purged the contempt, and ordered to pay $ 8,923 to purge the contempt. On December 7, 2002, Singleton purged himself of contempt by paying the sums and was released from jail. On December 8, 2002, the trial court entered the Income Deduction Order.
1. Singleton contends that the trial court erred in finding that he had sufficient notice of entry of the Income Deduction Order under O.C.G.A. § 19-6-32. We do not agree.
a. In Singleton's enumerations of error and brief for the first time, he seeks to raise due process constitutional issues; such issues were neither raised at trial in the pleadings nor ruled upon by the trial court. Constitutional issues must be raised at the earliest opportunity in the trial court and ruled upon to be preserved. Lucas v. Lucas, 273 Ga. 240, 242 (3) (539 S.E.2d 807) (2000); Atlanta Indep. School Sys. v. Lane, 266 Ga. 657, 658 (1) (469 S.E.2d 22) (1996). Further, unless ruled upon by the trial court, constitutional issues can not be reviewed on appeal, because the appellate court lacks jurisdiction to consider a constitutional issue not ruled upon by the trial court. Pimper v. State ex rel Simpson, 274 Ga. 624, 627 (555 S.E.2d 459) (2001). Thus, a constitutional issue is waived by the failure of the trial court to rule upon it. Haynes v. Wells, 273 Ga. 106, 108 (3) (538 S.E.2d 430) (2000).
b. Although the Income Deduction Order is titled "Terms For Release Of Defendant Being Held For Child Support Contempt And Income Deduction Order," the order constituted only an Income Deduction Order by its clear and plain language. In the preamble to the Income Deduction Order, the trial court recites what had occurred for the imposition of the Income Deduction order: that on November 19, 1999, the contempt hearing had been held; that Drayton had been found in contempt for failing to pay child support and attorney fees of $ 4,427; that Drayton could purge himself of contempt by paying $ 1,100; that upon paying such sum, he would be released from jail; and finally, that on December 7, 1999, Drayton had purged himself of contempt by paying such sum. All of such facts had already occurred prior to the entry of the Income Deduction Order on December 8, 2002; thus, the order did not effect such prior events but only income deduction. Thus, the statutory requirements of O.C.G.A. § 19-6-32 of a single order dealing with income deduction only was satisfied.
2. Singleton contends that the trial court erred in finding that Ernestine Singleton was properly served as his agent and that such notice to her was insufficient notice to him. We do not agree.
In Ga. Laws 1989, pp. 861-978, the General Assembly passed remedial legislation titled "Domestic Relations - Child and Spousal Support; Enforcement; Guidelines; Income Deduction Orders; Wage Assignments; Insurance" and stated in the caption of the Act its purposes:to revise extensively the statutes relative to the enforcement of child and spousal support obligations; to implement certain provisions of the federal Family Support Act of 1988 (Pub. Law 100-485); . . . to amend the provisions relating to the authority of the courts to order the immediate deduction from wages of spousal and child support obligations; to provide for income deduction orders; to provide definitions for income deduction orders. Id. at 861.See Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921) ().
This statute is part of the laws our state legislature passed in order to implement various federal amendments to Title IV-D of the Social Security Act. Those amendments require states to establish income withholding as a method of enforcing all child support orders and condition a state's receipt of Federal Aid to Families with Dependent Children (AFDC) on compliance with federal legislation. The unmistakable congressional intent of the federal mandate to impose income deduction is the establishment of a speedy and simple method for the withholding of wages or other income to ensure support is paid promptly and efficiently. Georgia Dept. of Human Resources v. Word, 265 Ga. 461, 462 (458 S.E.2d 110) (1995). Id. at 462 n. 1. Id. at 463 (1). Thus the purposes of the Act are procedural and remedial.
The clear and plain language of O.C.G.A. § 19-6-32 (e) provides: "(3) that the income deduction applies to current and subsequent payors and periods of employment"; and "(4) that a copy of the income deduction order will be served on the obligor's payor or payors." For purposes of enforcement, O.C.G.A. § 19-6-33 (a) and (b) provide how notice shall be given: ...
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