Pruitt v. Lindsey

407 S.E.2d 750, 261 Ga. 540, 1991 Ga. LEXIS 396

• Court: Supreme Court of Georgia
• Decided: September 6, 1991
• Docket: S91A0596
• Status: Published

Opinions

Clarke, Chief Justice.

Alyce Ayn Pruitt and Frederick Lindsey are unwed parents of a minor child. Mr. Lindsey pled guilty to child abandonment in the State Court of Fulton County. In July of 1989, the court imposed and suspended a 12-month jail sentence and ordered Mr. Lindsey to pay child support. The court retained jurisdiction to amend, alter or modify child support. No appeal was taken. In September 1990, Ms. Pruitt filed an action in the Superior Court of Fulton County seeking to modify child support and to legitimate the child. The Superior Court dismissed the case, holding that only the father may bring an action to legitimate a child and holding that the mother must return to the State Court of Fulton County for a modification of child support. We granted this application for discretionary review.

1. Ms. Pruitt argues that the court erred in holding that her exclusive remedy for modification of child support is in the State Court of Fulton County. She asserts that she is entitled to bring a civil action for support and to have the amount of support calculated according to the guidelines set forth in OCGA § 19-6-15. We agree that the amount of support must be calculated according to the guidelines in OCGA § 19-6-15, but hold that Ms. Pruitt’s exclusive remedy for modification is in the State Court of Fulton County.

When a defendant is convicted of child abandonment under OCGA § 19-10-1, the trial court is authorized to prescribe the terms and conditions for the support of the child and to suspend the defendant’s sentence of incarceration on the condition that the defendant pay child support. OCGA § 19-10-1 (j) (1). If the defendant fails or refuses to provide support at any time during the child’s minority, the court may order that the suspended sentence be served. OCGA § 19-10-1 (j) (2). The statute also provides for modification of the amount of support in accordance with the child’s needs and the defendant’s ability to pay. OCGA § 19-10-1 (j) (4).

The clear intent of this statutory scheme is to allow the court that heard the child abandonment case to retain jurisdiction over the issue of child support throughout the child’s minority. The statute gives the trial court an important coercive tool — the suspended sentence — to ensure that the parent provides support. See generally Moody v. State, 190 Ga. App. 91 (378 SE2d 375) (1989). Moreover, because the statute provides for the trial court that hears the abandonment action to set and modify child support, it would not make sense to involve another forum in determining the amount of support for the child.¹

We have held, however, that the provisions for modification of child support found in OCGA § 19-10-1 are analogous to those found in OCGA §§ 19-6-17 and 19-6-18. Hudson v. State, 248 Ga. 397 (283 SE2d 271) (1981). We further hold that the guidelines for computing the amount of child support found in OCGA § 19-6-15 (b) and (c), known as the “Child Support Guidelines,” are the expression of the legislative will regarding the calculation of child support and must be considered by any court setting child support.

2. Ms. Pruitt next argues that the dismissal of her complaint for legitimation under OCGA § 19-7-22 violates constitutional guarantees of due process and equal protection. We disagree.

OCGA § 19-7-22 states that “[a] father of a child born out of wedlock may render the same legitimate by petitioning the superior court of the county of his residence. ...” Under the plain language of the statute, the procedure applies only to fathers. It does not follow, however, that the mother or child are thereby denied any right under the law. Other statutes protect the rights of the mother and child. For example, OCGA § 19-10-1, the child abandonment procedure followed in this case, provides for a determination of paternity that is conclusive in all future actions. Cummings v. Carter, 155 Ga. App. 688 (272 SE2d 552) (1980). Once paternity is legally established,² the child is on equal footing with all other children. The child is entitled to have both parents provide for his or her “maintenance, protection, and education.” OCGA § 19-7-24. The child is also entitled to inherit from either parent. OCGA § 53-4-4. In all respects, the rights of a child born out of wedlock are the same as a child born in wedlock once paternity has been established. In other words, that child is “legitimate” as far as the law is concerned.

In 1988, the legislature amended all sections of Official Code of Georgia so that children born to unwed parents no longer bear the designation “illegitimate.” They are now simply referred to as children “born out of wedlock.” This change was a wise one because any illegitimacy in these circumstances has to do with the relationship between the parents and certainly not with the character of the blameless child. In spite of this change, however, the statute providing for “legitimation” was not deleted. This is so because the law provides that only the mother of a child born out of wedlock is entitled to custody of the child “unless the father legitimates him as provided in Code Section 19-7-22.” OCGA § 19-7-25. Under the current legislative scheme, if a father wants to gain the right to custody or visitation, he must take the steps required by OCGA § 19-7-22 to “legitimate the child,” or, more correctly, to legitimate the relationship between himself and the child.

Thus, if paternity has been established, the only rights affected by OCGA § 19-7-22, are the rights of the father. The Superior Court correctly decided that a complaint for legitimation under this section cannot be maintained by the mother.

Judgment affirmed.

All the Justices concur, except Smith, P. J., and Benham, J., who dissent.

1 OCGA § 19-11-14, which provides that “[t]he right of a child born out of wedlock to receive such support is enforceable in a civil action, notwithstanding any other provision of law” is not to the contrary. Several civil procedures to enforce the child support award are available to the child, although the only procedure available to modify the support award is in the court that heard the child abandonment proceeding.

2 We do not address here the limited situations where biological paternity does not correspond with a duty to support, as in cases of artificial insemination.