Antico v. Antico, 244 S.E.2d 820

Antico v. Antico

244 S.E.2d 820

Ga.

1978

Check Treatment

ANTICO v. ANTICO et al.

33404

Supreme Court of Georgia

April 18, 1978

May 2, 1978

241 Ga. 294 | 244 S.E.2d 820

Ga. 403 (216 SE2d 301) (1975). This testimony created an issue of fact for jury determination. The trial court erred in granting the appellee‘s motion for summary judgment.

Judgment reversed. All the Justices concur, except Hall, J., who dissents.

ARGUED FEBRUARY 14, 1978 — DECIDED APRIL 18, 1978 — REHEARING DENIED MAY 2, 1978.

Sutton & English, Frank Sutton, for appellants.

McClure, Ramsay, Struble & Dickerson, Robert B. Struble, for appellee.

HILL, Justice.

This appeal arises out of a garnishment proceeding in the State Court of Fulton County brought by the former wife on September 8, 1977, to collect under a temporary alimony order and a final divorce and alimony judgment entered in her favor by the Superior Court of Cobb County. In compliance with Code Ann. § 30-204, the wife (appellee) filed an affidavit for fi. fa. in the Superior Court of Cobb County on September 7, 1977, and based on that affidavit, a fi. fa. issued from the Cobb Superior Court. Her attorney then filed an affidavit of garnishment in the State Court of Fulton County on September 8, 1977. In instituting the garnishment the former wife complied with the statutory requirements relating to post judgment garnishments. Code Ann. Ch. 46-1 (as amended, Ga. L. 1977, p. 159).

1. The former husband (appellant) attacks the constitutionality of the garnishment generally, contending that because this garnishment was based upon alimony orders which contemplated installment payments, it is unconstitutional under

Sniadach v. Family Finance Corp., 395 U. S. 337 (89 SC 1820, 23 LE2d 349)(1969), and thus garnishment actions to collect installment alimony payments fixed by court order or judgment should be treated as pre-judgment garnishments under Code Ann. Ch. 46-2. See the concurring opinion in ; but see the dissenting opinion in . The issue raised on appeal is whether garnishment of wages to satisfy alimony orders and judgments by use of our post-judgment procedures meets the general requirements of due process, not whether such garnishment should be classified under the statute as pre-judgment garnishment rather than post-judgment. Moreover, Georgia‘s post-judgment garnishment law as amended in 1977, supra, satisfies many of the due process requirements applicable to pre-judgment garnishments. See .

In accordance with the Georgia statutes, the husband was accorded procedural due process by the fact that the affidavit for garnishment was approved by a judge before the summons of garnishment issued (Code Ann. § 46-102), and by the fact that he received timely notice of the garnishment (Code Ann. § 46-105), as well as an early hearing on his traverse (Code Ann. § 46-401). See

Coursin v. Harper, supra, 236 Ga. at 731.

2. The husband also contends that his wife waived her right to collect arrearages in child support due under the temporary alimony order by executing the separation agreement made part of the divorce decree which contained a release and discharge of all claims by each party against the other. Since the disputed amounts were for child support, the wife had no power to waive the child‘s rights to these sums.

Livsey v. Livsey, 229 Ga. 368 (191 SE2d 859) (1972); .

3. Finally, the husband argues that the trial court erred in the determination of the actual amount unpaid. There is evidence to support the trial court‘s findings.

Judgment affirmed. All the Justices concur, except Hall and Marshall, JJ., who concur specially.

ARGUED MARCH 15, 1978 — DECIDED APRIL 4, 1978 — REHEARING DENIED MAY 2, 1978.

Joseph H. King, Jr., for appellant.

John C. Tyler, for appellees.

HALL, Justice, concurring specially.

I concur in the judgment for the reasons stated in my dissents in

Coursin v. Harper, 236 Ga. 729, 732 (225 SE2d 428) (1976), and , and my concurring opinion in . It is my firm position that Georgia‘s post-judgment garnishment procedures were constitutional even before the 1975 amendment to the statute. See “Postjudgment Garnishment in Georgia: Acting Largely in the Dark,” 12 Georgia Law Review 60 (1977), and “Notice and Judicial Supervision in Postjudgment Garnishment — An Analysis of the Georgia Provisions,” 26 Emory Law Journal 597 (1977).