Department of Human Resources v. Offutt

459 S.E.2d 597, 217 Ga. App. 823, 95 Fulton County D. Rep. 2483, 1995 Ga. App. LEXIS 603
CourtCourt of Appeals of Georgia
DecidedJuly 13, 1995
DocketA95A0287
StatusPublished
Cited by2 cases

This text of 459 S.E.2d 597 (Department of Human Resources v. Offutt) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Resources v. Offutt, 459 S.E.2d 597, 217 Ga. App. 823, 95 Fulton County D. Rep. 2483, 1995 Ga. App. LEXIS 603 (Ga. Ct. App. 1995).

Opinions

Beasley, Chief Judge.

We granted the discretionary application of the Department of Human Resources (DHR) to consider the trial court’s refusal to issue an income-deduction order for child support under OCGA § 19-6-32.

The appellee, Stanley Phillip Offutt, and Karen Worley Offutt were divorced on October 3, 1986. In the final judgment and decree, the mother was awarded physical custody of the couple’s two minor children and the father was ordered to pay child support. In August 1990, the mother sought assistance from the Child Support Recovery [824]*824Unit in collecting child support and, in doing so, assigned her right to child support to DHR. This service is provided even when the children do not receive public assistance. OCGA § 19-11-6 (c). Since that time, the father has paid child support to the Unit.

On May 10, 1994, DHR petitioned for the issuance of an income-deduction order based on an alleged arrearage of $74 through March 31, 1994. In denying the request, the court noted that the father had an excellent history of making payments and had not been the subject of any court-related proceeding concerning child support since the original divorce decree was entered. The court concluded that under these circumstances, OCGA § 19-6-32 does not mandate the entry of an income-deduction order.

OCGA § 19-6-32 (a) (1) provides, as relevant here: “After July 1, 1989, upon the application to the child support (IV-D) agency, and upon the entry of a judgment establishing, enforcing, or modifying a child support obligation . . ., the court . . . shall enter a separate order for income deduction if one has not been entered.” That section is not applicable here, however, because there is no such judgment. The only judgment is that of October 3, 1986. Thus, subsection (2) of the statute applies: “For all child support orders . . . prior to July 1, 1989, an order for income deduction may be issued without need for any amendment to the order involved or any further action by the court or entity that issued it, provided that an opportunity for a hearing before a court, a referee of the court, or an administrative hearing officer is afforded.”

It is a matter of the plain language in the statute, read in context. This case involves an order for child support entered prior to July 1, 1989, as part of the final judgment and decree which ended the marriage, divided the property, and established the legal rights and obligations of child custody and child support. By their express terms, subsection (a) (1) of OCGA § 19-6-32 applies to judgments or orders for child support entered after July 1, 1989, and subsection (a) (2) of OCGA § 19-6-32 applies to such orders entered before July 1, 1989. In concert with the watershed date, this new section and two other related and new sections, along with the rest of the substantial changes introduced by the statute, became effective July 1. Ga. L. 1989, pp. 861, 878, § 8. We must abide by the plain language and not construe it otherwise. Housing Auth. of Savannah v. Greene, 259 Ga. 435, 438 (4) (383 SE2d 867) (1989).

This view of the plain language is confirmed by a consideration of the context, the nature of the change, and the significance of the distinction between “before” and “after” in applying the rules of construction in OCGA §§ 1-3-1, 1-3-2, and 1-3-5.

By this Act, the legislature extensively revised the statutes relating to the enforcement of child and spousal support obligations and [825]*825other aspects of the law of family dissolution. Ga. L. 1989, p. 861. This was apparently in response to the risk of losing substantial federal funds.1 Notably, this included the establishment of presumptive guidelines for the computation of child support, whereas heretofore the amount of the award was left entirely to the discretion of the factfinder. Ga. L. 1989, pp. 861, 862, § 1; OCGA § 19-6-15. This is part of the reform and transition in which the law governing the dissolution of marriage has been since about 1970, as the primary part of the process has shifted in focus from the grounds for divorce to the “incidents” of dissolution which “now constitute the overwhelming mass of family law litigation, and pose the problems of great consequence for public policy because they shape the future for the former partners and their children.” Marygold S. Melli, Preface, pp. xvii-xix, Tentative Draft No. 1, The American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations. One aspect of the “incident” of future support requirements is enforcement.

Prior to 1989, there was no statutory provision for court-directed income deduction which would immediately capture the support payments at the source, i.e., the obligor’s employer or other payor of periodic amounts. The support orders could not utilize this method of assuring payment, and there was no mechanism to do so. True, there was garnishment, but a one-month delinquency first had to occur before this separate enforcement proceeding could be instituted. OCGA § 18-4-130 et seq., particularly OCGA § 18-4-132. When support was ordered, the obligor had an opportunity to comply voluntarily before court enforcement could be implemented.

Beginning in 1985, the most that the court ordering or modifying child support could do, and was actually required to do, was to warn the obligor in the support order that garnishment was an available remedy of enforcement. Ga. L. 1985, pp. 785, 791; OCGA § 19-6-30 (a). It constituted merely a threat. The legislature specifically provided that this was retroactive in that all orders entered or modified prior to July 1, 1985, were to be construed to contain this warning. OCGA § 19-6-30 (b).

Four years later more powerful authority was given to the support-ordering courts by way of the income-deduction provision. Ga. L. 1989, p. 861. It does not depend upon voluntary compliance.2

The new procedure was added by way of three Code sections introduced into the law in the 1989 Act and an addition to OCGA § 19-6-30. The addition provided that “All Title IV-D (child support re[826]

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Bluebook (online)
459 S.E.2d 597, 217 Ga. App. 823, 95 Fulton County D. Rep. 2483, 1995 Ga. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-resources-v-offutt-gactapp-1995.