Worthington v. Worthington

• Decision Date: 17 March 1983
• Docket Number: No. 39022,39022
• Citation: 250 Ga. 730,301 S.E.2d 44
• Parties: Billy Earl WORTHINGTON v. William Bryan WORTHINGTON, et al.
• Court: Georgia Supreme Court

Page 44

301 S.E.2d 44

250 Ga. 730

Billy Earl WORTHINGTON v. William Bryan WORTHINGTON, et al.

No. 39022.

Supreme Court of Georgia.

March 17, 1983.

J. Corbett Peek, Jr., James Garland Peek, Atlanta, for Billy Earl Worthington.

Thomas Henry Nickerson, Nickerson & Gaulden, Atlanta, for William Bryan Worthington, b/n/f.

BELL, Justice.

This case is before us on certiorari from a decision of the Court of Appeals. Worthington v. Worthington, 162 Ga.App. 813, 292 S.E.2d 861 (1982). In 1974 Mary Jane Moore bore an illegitimate child. She filed suit against appellant, alleging he was the father and seeking to compel him to pay child support. The complaint was eventually amended so that it was cast solely as an OCGA Ch. 19-7, Art. 3 (Code Ann. § 74-301 et seq.) (Ga.L.1980, p. 1374) paternity suit with Moore individually and her son individually, by next friend, and by guardian ad litem as plaintiffs. In defense appellant answered that he and Moore had entered into a contract in 1974 under the terms of which he gave her $10,000 in return for her release of all support obligations he might owe her and the child. He moved for summary judgment, which was denied, and the Court of Appeals granted an interlocutory appeal.

The Court held that to the extent the mother had an individual right to sue for child support she had waived that right, but also found that insofar as the contract purported to waive the child's right to support under OCGA § 19-7-24 (Code Ann. § 74-202) ¹ it was contrary to public policy and unenforceable.

Appellant applied for a writ of certiorari, which we granted. He urges that OCGA Ch. 19-7, Art. 3 (Code Ann. § 74-301 et seq.) is a new remedy for failure to fulfill the obligation to support an illegitimate child and is not intended to be retrospective. He further argues that his contract extinguished his duty of support, and an attempt to revive that duty by retroactively applying Article 3 will unconstitutionally impair his vested contractual right. We reverse the first division of the Court of Appeals' opinion; we uphold the result of the second division, but not for the reasons the Court relied upon.

1) With respect to Division (2), we have already held in divorce cases that the right to petition for modification of child support belongs to the child, and cannot be waived by agreement between the parents. Livsey v. Livsey, 229 Ga. 368, 369, 191 S.E.2d 859 (1972); accord, Crosby v. Crosby, 249 Ga. 569, 292 S.E.2d 814 (1982); OCGA § 1-3-7 (Code Ann. § 102-106). If the problem facing us were purely one of social policy and its impact upon the enforceability of contracts, as the Court of Appeals characterizes it, we would not hesitate to find that the protection of the non-waiver doctrine should be extended to illegitimate children. See Walker v. Walker, 266 So.2d 385 (Dist.Ct.App.Fla., 1972). Children, legitimate or illegitimate, are not property, and absent a clear legislative declaration otherwise their support rights may not be bartered away by their parents. H. Clark, The Law of Domestic Relations, § 5.3 (1968). ² Contra, Warner v. Burke, 137 Ga.App. 185, 223 S.E.2d 234 (1976). See Newsome v. Newsome, 232 Ga. 49, 51, 205 S.E.2d 291 (1974) (Ingram, J., concurring specially). See generally 10 Am.Jur.2d Bastards § 98; 10 C.J.S. Bastards §§ 40-41 (1982 Supp.). But there is also an important issue of statutory interpretation which the Court of Appeals hasn't addressed, i.e., the possible conflict between the voluntary discharge language of the 1974 version of § 19-7-24 (Code Ann. § 74-202) and that section of Article 3 which provides, "Regardless of its terms, an agreement, other than an agreement approved by the court in accordance with this article, between an alleged or presumed father and the mother or child does not bar a petition under this Code section." OCGA § 19-7-43(b) (Code Ann. § 74-304).

If § 19-7-24 (Code Ann. § 74-202) did not authorize contractual releases of illegitimates' support claims, then it does not conflict with § 19-7-43(b) (Code Ann. § 74-304), and we are free both to invoke social policy and follow § 19-7-43(b)'s (Code Ann. § 74-304) mandate, but if § 19-7-24 (Code Ann. § 74-202) did provide for such releases ³ then we are, as appellant contends, confronted with a new statute, enacted to provide an additional method of enforcing the duty of support established by a prior act, which appears to operate in a manner that impairs vested contractual rights incurred under the prior act. Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980); Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803 (1959); Bullard v. Holman, 184 Ga. 788(2), 193 S.E. 586 (1937); Bank of Norman Park v. Colquitt County, 169 Ga. 534(3), 150 S.E. 841 (1929). However, we need not address the retroactivity issue since as we find below § 19-7-24 (Code Ann. § 74-202) was never intended to allow parents of illegitimates to extinguish their support rights.

As it existed in 1974, OCGA § 19-7-24 (Code Ann. § 74-202) provided that "[t]his obligation shall be good consideration to support a contract by [the alleged father]. He may voluntarily discharge this duty; if he shall fail or refuse to do it, the law will compel him." This language does not expressly grant the father the right to bar further claims by his voluntary discharge, nor does it expressly give the mother the capacity to waive the child's support rights. The social policy against such a bar is strong, and because the act lacks a clear expression on the subject we find against appellant. This is not the sole ground of our decision, however, since our conclusion is buttressed by unusually clear documentation of the statute's origins and the legislative intent behind its enactment.

OCGA § 19-7-24 (Code Ann. § 74-202) originated in the Code of 1863, § 1749. ⁴ Prior to that time the sole statutory expression of the putative father's duty to support was found in the old bastardy statute. Cobb's 1851 Digest, pp. 148-150 (former Code Ann. Ch. 74-3, repealed by Ga.L.1973, p. 697). Under that statute an alleged father could be criminally prosecuted for failure to make a bond to support and educate his illegitimate child. To avoid public embarassment the practice arose whereby the father privately agreed with the mother to pay child support either periodically or in lump sum if she would forebear from initiating bastardy proceedings. In the decade preceding the War Between the States there was, however, a serious question whether those contracts were supported by legal consideration so that they could be enforced by the mother or child against the alleged father. See 20 A.L.R.3d 500, §§ 8-9.

This issue was brought before our Court in the case of Hargroves v. Freeman, 12 Ga. 342 (1852). Hargroves was a suit by an illegitimate child by her next friend against the executors of her putative father's estate, to enforce a promissory note he had made to avoid a bastardy proceeding. The executors defended on the ground that the consideration was insufficient to sustain the promise. On appeal the child's counsel, Thomas R.R. Cobb, ⁵ argued that the father's moral obligation to support his child was sufficient consideration to support the note. Justice Lumpkin, writing for the court, agreed in dictum that there was indeed a strong moral obligation but ultimately ducked that issue and bottomed his decision on the bastardy statute. He observed that the statute bound a father for the maintenance and education of his child, and a contract to discharge that obligation was thus supported by legal consideration, was not against policy, morals, or law, and was enforceable by the child.

When the 1863 Code was complied under Cobb's direction the Hargroves holding was incorporated into a new statute, § 1749. ⁶ That section spelled out two rules of law: first, the putative father had a legal obligation to support his child; second, he could legally contract to avoid prosecution to compel him to meet his duty, and the duty was legal consideration for the contract. The issue of whether these agreements could bar mothers or children from claiming child support over and above the contractually agreed sum formed no part of the historical context of the statute, nor the legislative intent it embodied.

We also find persuasive a comparison of § 1694 of the 1863 Code (OCGA § 19-6-8 in its present form) (Code Ann. § 30-211) to § 1749. § 1694 allowed a husband under certain circumstances to contract to discharge his spousal support obligations, and expressly provided that such an arrangement "shall be a bar to [his wife's] right to permanent alimony." Based on this comparison, we infer that if the legislature had intended that Code of 1863 § 1749 contracts could operate to extinguish the child's support rights, it would have included similar language in that statute.

Moreover we find that by 1974 the section of the statute concerning discharge of obligations had been repealed. § 19-7-24 (Code Ann. § 74-202), former Code Ann. Ch. 74-3, and former Code Ann. § 74-9901 have been previously held to have formed an integrated statutory scheme to compel fathers to support their bastard issue. Tillman v. State, 249 Ga. 792, 294 S.E.2d 516 (1982); Washington v. Martin, 75 Ga.App. 466, 43 S.E.2d 590 (1947). Under the scheme, Ch. 74-3 provided the mechanism to compel the father to post a bond for support and education, § 74-9901 was the sanction he faced for failure to do so, and § 19-7-24 (Code Ann. § 74-202) was specifically designed as a means by which the father could avoid the embarrassment and expense of a public proceeding. See Hargroves, supra, 12 Ga. at 350. Code Ann. Ch. 74-3 was repealed by Ga.L.1973, p. 697, but § 19-7-24 (Code Ann. § 74-202) and § 74-9901 were left on the books. This Court has recently held that § 74-9901 necessarily fell when Ch. 74-3 was repealed, Tillman, supra; accord, Dunagan v. State, 163 Ga.App. 414, 294 S.E.2d 633 (1982), and we now find likewise with respect...