In the appellant-mother’s present action against the appellee-father under the Uniform Reciprocal Enforcement of Support Act (URESA), OCGA § 19-11-40 et seq., she alleged that the defendant was under a duty to support the parties’ minor children under the parties’ 1974 Ohio divorce decree, under which the defendant was allegedly in arrears in the amount of $27,534.86 as of May 31,1985. The trial court — finding that the “plaintiff demands $33,102.13 in arrearage accruing under the Ohio decree” — dismissed the petition on the ground of res judicata, based on the appellant’s two previous URESA actions against the appellee: in Georgia (in 1978) and in North Carolina (in 1982), in both of which cases the matter of the alleged arrearage under the Ohio decree was likewise pleaded, but both of the final orders were silent thereon. The Court of Appeals denied the appellant’s application for discretionary appeal; this court granted certiorari. We reverse the trial court’s order dismissing the petition.
1. In this URESA action to recover arrearage under the parties’ prior support order pursuant to OCGA §§ 19-11-51 and 19-11-63, the dismissal of the petition would be proper only if the rule of res judicata is applicable to either 1 or both of the two previous URESA orders.
“[A] foreign judgment is conclusive as to all matters which were decided
or could have been heard
at the time of the judgment in question.
Johnson v. Johnson,
Thus, the matter of arrearage was put in issue by the mere allegations of the amounts thereof in the two previous URESA petitions.
Farmer,
supra. This is so even though this may have been intended as merely necessary allegata under the URESA,
2
and regardless of the absence of a specific prayer for such relief.
Madison, Ltd. v. Price,
2. However, a mechanical application of the res judicata rule in this situation would frustrate the purposes of the URESA, i.e., “to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” OCGA § 19-11-41. URESA was designed to facilitate collection of support from absent parents in distant states (and counties,
Ray v. Ray,
Moreover, the remedies provided within the URESA are “in addition to and not in substitution of any other remedies.” OCGA § 19-11-45. “A judgment requiring the payment of alimony or child support, temporary or permanent, including attorney’s fees, may be enforced against the obligee [sic; obligor?] by writ of execution (or fi. fa.). The obligee is entitled to an execution as each installment of alimony or child support becomes due and payable. The clerk is required to issue the fi. fa. upon affidavit of the obligee or his attorney as a matter of right; it is not essential that a new judgment be obtained.” McConaughey, Ga. Divorce, Alimony & Child Custody (2nd ed.), Sec. 14-9 (footnotes omitted). “The remedies of action for contempt
[Lenett v. Lutz,
“It has often been stated that a final judgment has the effect of res judicata between the parties and their successors in interest as to all matters which were put in issue or which, under the rules of law, could have been put in issue [OCGA § 9-12-40.
Prince v. Prince,
The issue of arrearages sometimes may not be addressed in an order simply because the amount of arrearage cannot be determined readily and ordered paid, or the obligor may not be financially able at a particular time to make such payments. To apply a strict res judicata rule in this area might deter custodial parents from utilizing the URESA remedy or remedies for fear of waiving legal rights which at some later date may be determined to have been capable of litigation in the URESA proceeding. Thus, in
Ray v. Ray,
Our holding — that the order rendered by a responding court in a URESA proceeding is not res judicata in a subsequent action for arrearage under the original support order, subject to a set-off of any such arrearages already paid to prevent a double recovery — is in line with the position taken in other states interpreting the URESA. See, e.g., Annot., 31 ALR4th 347, 365, Sec. 6;
Westberry v. Reynolds,
Accordingly, the trial court erred in dismissing the petition on the ground of res judicata.
Judgment reversed.
Notes
Arrearages were not specifically recoverable under the Georgia URESA until these two Code sections were amended by Ga. L. 1979, p. 941, §§ 1, 2. The Georgia URESA action was filed prior to, and the order therein entered subsequent to, the April 13, 1979, effective date of the amendment. See 23 AmJur2d 974, 975, Desertion & Nonsupport, § 124.
“[N]o cause of action shall arise unless the obligee is in need of support and the obligor has failed and refused to support the obligee.” (Emphasis supplied.) OCGA § 19-11-52.