Wilkins v. Stynchcombe

232 S.E.2d 564, 238 Ga. 306, 1977 Ga. LEXIS 1007

• Court: Supreme Court of Georgia
• Decided: January 28, 1977
• Docket: 31755
• Status: Published

Opinions

Per curiam.

This appeal is from an order entered in Fulton Superior Court denying habeas corpus relief to the appellant who is incarcerated in the Fulton County jail under a prior contempt order issued from that court because of appellant’s failure to pay an arrearage of alimony and child support.

The contempt order provides that appellant may purge himself and secure release from confinement by paying the sums found past due in the order. No appeal was taken from that order and appellant does not contend that the order is void. Instead, it is argued that appellant has shown in the habeas trial court that he is unable to pay the sums which he was ordered to pay in the earlier contempt order.

We have no choice except to affirm the habeas trial court’s order denying relief, as appellant is being confined pursuant to a prior unappealed contempt order in Fulton Superior Court. Appellant has not shown in this case that his present restraint is unlawful. See McKay v. Balkcom, 203 Ga. 790 (1) (48 SE2d 453) (1948); and Craddock v. Foster, 205 Ga. 534 (54 SE2d 406) (1949). His best hope for release, short of paying the arrearage, appears to lie in seeking appropriate relief in the court which issued the contempt order. See Poole v. Wright, 188 Ga. 255 (2, 3) (3 SE2d 731) (1939); and Mann v. Malone, 231 Ga. 397 (1) (202 SE2d 63) (1973).

Judgment affirmed.

All the Justices concur, except Hill, J., who concurs specially.