On December 5, 2002, Joe Singleton d/b/a Singleton Construction Company filed his notice of appeal from the order of November 27, 2002, holding him in contempt for ignoring an income deduction order for an employee brought by the State of Georgia, Department of Human Resources, ex rel Ebony M. Drayton, Joe L. Drayton III, and Jasmine R. Drayton. Finding no error, we affirm.
On December 18, 1998, in Civil Action No. DR97-1998-BA, the Superior Court of Chatham County entered a child support award against Joe Drayton for support of his three minor children. On November 19,1999, Drayton was held in contempt and jailed for nonpayment. On December 8, 1999, the trial court entered an income deduction order for the first time; the order stated that previously on December 7, 1999, Drayton had purged his earlier contempt by making the previously ordered payments of arrearage and attorney fees; that Drayton had been released from jail upon paying the sums; that an income deduction order for future payments was imposed; and that it was captioned “Terms for Release of Defendant Being Held for Child Support Contempt and Income Deduction Order.” At the time of the entry of the income deduction order and while in jail, Drayton was the employee of Joe Singleton d/b/a Singleton Construction Company.
On December 8, 1999, counsel for the Child Support Enforcement sent a copy of the income deduction order, as well as written notice by certified mail — return receipt requested — to Singleton Construction Company, Attn: Payroll, P. O. Box 23614, Savannah, Georgia 31402. On December 9, 1999, the return receipt was signed by Ernestine Singleton for Singleton Construction Company.
On August 13, 2002, the State of Georgia, Department of Human Resources, ex rel Ebony M. Drayton, Joe L. Drayton III, and Jasmine R. Drayton, filed a complaint for contempt sanctions for failure to remit child support against Joe Singleton d/b/a Singleton Construction for failure to withhold from Drayton’s wages as ordered. On Sep
1. Singleton contends that the trial court erred in finding that he had sufficient notice of entry of the income deduction order under OCGA § 19-6-32. We do not agree.
(a) In Singleton’s enumerations of error and brief for the first time, he seeks to raise due process constitutional issues; such issues were neither raised at trial in the pleadings nor ruled upon by the trial court. Constitutional issues must be raised at the earliest opportunity in the trial court and ruled upon to be preserved. Lucas v. Lucas,
(b) Although the income deduction order is titled “Terms for Release of Defendant Being Held for Child Support Contempt and Income Deduction Order,” the order constituted only an income deduction order by its clear and plain language. In the preamble to the income deduction order, the trial court recites what had occurred for the imposition of the income deduction order: that on November 19, 1999, the contempt hearing had been held; that Drayton had been found in contempt for failing to pay child support and attorney fees of $4,427; that Drayton could purge himself of contempt by paying $1,100; that upon paying such sum, he would be released from jail; and finally, that on December 7, 1999, Drayton had purged himself of contempt by paying such sum. All of such facts had already occurred prior to the entry of the income deduction order on December 8, 1999; thus, the order did not effect such prior events but only income deduction. Thus, the statutory requirements of OCGA § 19-6-
2. Singleton contends that the trial court erred in finding that Ernestine Singleton was properly served as his agent and that such notice to her was insufficient notice to him. We do not agree.
In Ga. L. 1989, pp. 861-878, the General Assembly passed remedial legislation titled “Domestic Relations — Child and Spousal Support; Enforcement; Guidelines; Income Deduction Orders; Wage Assignments; Insurance” and stated in the caption of the Act its purposes:
to revise extensively the statutes relative to the enforcement of child and spousal support obligations; to implement certain provisions of the federal Family Support Act of 1988 (Pub. Law 100-485); ... to amend the provisions relating to the authority of the court [s] to order the immediate deduction from wages of spousal and child support obligations; to provide for income deduction orders; to provide definitions for income deduction orders.
Id. at 861. See Sovereign Camp Woodmen of the World v. Beard,
This statute is part of the laws our state legislature passed in order to implement various federal amendments to Title IV-D of the Social Security Act. Those amendments require states to establish income withholding as a method of enforcing all child support orders and condition a state’s receipt of Federal Aid to Families with Dependent Children (AFDC) on compliance with the federal legislation. The unmistakable congressional intent of the federal mandate to impose income deduction is the establishment of a speedy and simple method for the withholding of wages or other income to ensure child support is paid promptly and efficiently.
(Footnotes omitted.) Ga. Dept, of Human Resources v. Word,
The clear and plain language of OCGA § 19-6-32 (e) provides: “(3) [t]hat the income deduction applies to current and subsequent payors and periods of employment”; and “(4) [t]hat a copy of the income deduction order will be served on the obligor’s payor or payors.” For purposes of enforcement, OCGA § 19-6-33 (a) and (b) provide how notice shall be given:
[t]he obligee or his or her agent shall serve an income deduction order and the notice to the payor, and in the case of a delinquency a notice of delinquency, on the obligor’s payor [, and] [s]ervice of the initial income deduction order by or upon any person who is a party to a proceeding under this Code section shall be by personal service, by certified mail or statutory overnight delivery, return receipt requested, or by regular mail. Service upon an obligor’s payor or successor payor under this Code section shall be by regular first-class mail.
Thus, like the rest of the procedures under the Act, service was to be simple and direct.
The Act provides service upon the payor of the original income deduction order or a delinquency by first class mail. The Act did not require personal service or specify that personal receipt was necessary to perfect service. Implicit in this statutory requirement of notice by mail is that anyone can receive notice for the payor, i.e., the payor, the payor’s agent, the payor’s employee, or the payor’s spouse, because notice is deemed perfected upon mailing. See generally Allen v. Bd. of Tax Assessors of Paulding County,
3. Singleton contends that the trial court erred in finding that he had been served in the contempt action under the income deduction order. We do not agree.
(a) Singleton contends that he was improperly served, because notice and summons for the rule nisi were sent to his attorney, who
Singleton entered a limited appearance to preserve the issue of personal jurisdiction and service by answer and motion. Dyer v. Surratt,
Singleton timely raised the OCGA § 9-11-12 (b) (2) defense in abatement to personal jurisdiction and answered generally and specifically the contempt. After the trial court denied his motion to dismiss for lack of personal jurisdiction, Singleton made a general appearance at trial by his presence and took part in the hearing by presenting evidence and a defense. “After a party has properly raised such [OCGA § 9-11-12 (b)] defense, it will only be found waived if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible.” (Citation omitted.) Heis v. Young,
(b) Since this was an action on an income deduction order under OCGA § 19-6-33 for enforcement against the payor, after Drayton had been found delinquent by the trial court, then Singleton could be served notice to appear by regular first class mail with a copy of the income deduction order and notice of the delinquency. Here such mailed notice and copy of the income deduction order were directed to Singleton’s attorney for Singleton, who received notice and had an opportunity to contest the matter at a hearing. OCGA § 19-6-33. The Act would have been satisfied as well by first class mail to Singleton; therefore, there was no harm. Both Congress and the General Assembly sought to simplify the procedure for the enforcement of child support and eliminated the necessity of personal service on either the obligor or the obligor’s payor for enforcement purposes.
Judgment affirmed.