Opinion
38108.
DECIDED APRIL 12, 1960.
Action for child support. Bibb Superior Court. Before Judge Long. September 29, 1959.
Carl E. Westmoreland, for plaintiff in error.
William M. West, Solicitor-General, Jack J. Gautier, Assistant Solicitor-General, contra.
Under the Uniform Reciprocal Enforcement of Support Act (Ga. L. 1958, pp. 34, 37),
1. A father in Georgia is liable for the support of his minor child under 18 years of age, although residing in another State, and if the father is possessed of sufficient means, he may be required to pay for this support.
2. This duty rests upon the father and may be enforced although either spouse has obtained a final decree of divorce or separation and although there has been an award for support of the child in some prior proceeding.
3. A prior award of support for the minor child is not final and unalterable so as to preclude reconsideration and adjustment under this chapter.
DECIDED APRIL 12, 1960.
Marlene P. Harrison, defendant in error, and T. G. Barfield, plaintiff in error, were husband and wife. One child was born of the marriage in 1953, and sometime thereafter the mother took the child to her home in Virginia. The father filed suit for divorce in Bibb Superior Court and pursuant thereto a total divorce was granted him on February 13, 1956. On December 6, 1955, the mother and father executed a contract in which it was agreed that the mother would have permanent custody of the infant and would support, maintain, educate and care for the child without any monetary or other contribution therefor to be made by the father. The court in its decree approved and adopted the contract between the parties as to custody and support of the infant, and made the agreement the judgment of the court and a part of its decree. Both the contract between the parents for the support of the child and the decree adopting it took place after the effective date of the Uniform Support of Dependents Law. The mother and child have continued to live in Virginia, and on August 17, 1959, the mother petitioned the Court of Juvenile and Domestic Relations for the City of Petersburg, Virginia, for support of the child. This, pursuant to the proper practice under the reciprocal acts, was forwarded to Bibb Superior Court, where jurisdiction was obtained over the father. The father entered a plea of res judicata showing the judgment as rendered on February 13, 1956, and further filed demurrers and answer. The trial judge overruled the plea of res judicata and the demurrers, and proceeded with the hearing as to the amount of support to be paid by the father and awarded the sum of $10 per week to the mother for support of the child of the parties.
Whatever the status of the law in regard to a final award of support money for a child prior to 1951, it is clear that under the Uniform Support of Dependents Law (Ga. L. 1951, p. 107), in effect at the time the judgment for divorce herein was rendered and the support award made, a father continues liable for support of his children, and no decree made since the effective date of such act for the support of children entered in any divorce proceeding is a final and unalterable adjudication precluding a later adjustment, and therefore the plea of res judicata was properly overruled. Georgia Laws 1951, § 3 (a), p. 109 and § 3 (c), p. 110, in effect at the time of the support money award in issue in this case, clearly places a continuing duty upon the father to support his children under 17 years of age. Georgia Laws 1951, § 3 (g), p. 110 further provides: "Notwithstanding the fact that the respondent has obtained in any State or country [sic] a final decree of divorce or separation from his wife or a decree dissolving his marriage, the respondent shall be deemed legally liable for the support of any dependent child of such marriage."
This Uniform Support of Dependents Law (Ga. L. 1951, p. 107) was repealed and a substitute act entitled Uniform Reciprocal Enforcement of Support Act (Ga. L. 1958, p. 34), was in effect at the time of the filing of the mother's petition in the instant case in Bibb Superior Court. As to matters at issue in this case, the new Uniform Reciprocal Enforcement of Support Act has no legal variance from the act in effect at the time of the agreement between the parents for support of the child or at the time of the approval of the contract by the court and its inclusion in the divorce decree. The relevant section of this act is as follows (Ga. L. 1958, p. 36, § 2 (6) (a)): "A husband in one State is hereby declared to be liable for the support of his wife in conformity with the support laws of this State, and any child or children under 18 years of age and residing or found in the same State or in another State having substantially similar or reciprocal laws, and, if possessed of sufficient means or able to earn such means, may be required to pay for this support a fair and reasonable sum according to his means, as may be determined by the court having jurisdiction of the defendant in a proceeding instituted under this act. Notwithstanding the fact that either spouse has obtained in any State or county a final decree of divorce or separation from the other spouse or a decree dissolving their marriage, the obligor herein shall be deemed legally liable for the support under this Act of any dependent child of such marriage, whether or not there has been an award of alimony or support for said child or children."
It is clear then under the law existing at the time of the support contract and the decree adopting this contract, that this award was not res judicata so as to preclude a subsequent action for adjustment and determination of needed support. It is also clear that the law existing at the time of the petition in Bibb Superior Court provided for adjustment of any support award, although there had been a determination of the matter in a prior divorce proceeding.
In the light of Ga. L. 1958, p. 36, § 2 (6) (a), it is also clear that the petition stated a cause of action, and the demurrers were properly overruled.
The trial court did not err in overruling the plea of res judicata or in overruling the demurrers to the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.