Franklin Allen, the appellant, and Jean Allen were divorced in South Carolina, and in 1988 a South Carolina family court ordered the appellant to pay $300 per month for the support of the Allens' minor child. The South Carolina court found that
the Respondent now claims no earnings, that he is not engaged in the practice of law[,] and according to his testimony the restaurant business that he recently opened has been unsuccessful. . . . This Court does find, however, that the Respondent has the requisite health, education, professional licenses, and the ability to pay the sum of $300 per month as child support at this time.
After moving to Georgia following her divorce, Jean Allen applied to the Georgia Department of Human Resources (DHR) for child support enforcement services, pursuant to OCGA 19-11-6
The DHR filed a complaint on behalf of the child to domesticate and modify the South Carolina decree to increase child support payments, (alleging that the financial ability of the appellant had changed). The DHR contends, and the appellant does not dispute, that the appellant now makes $4,595 per month as an attorney for the United States Department of Housing and Urban Development.
The trial court denied the appellant's motion to dismiss the complaint, holding as follows:
There is legal authority for the Georgia Department of Human Resources to bring an action on behalf of the minor child to domesticate and to modify a grant of child support pursuant to a decree of divorce entered in a foreign state. Scruggs v. Georgia Department of Human Resources, 261 Ga. 587
[408 SE2d 103
] (1991); Hutto v. Plagens, 254 Ga. 512
, 514, 330 S.E.2d 341 (1985).
We granted the appellant's application to appeal the trial court's denial of the motion to dismiss. The appellant first argues, in substance, that an action for domestication is not within the statutory authority of the DHR under OCGA 19-11-8
and that therefore the DHR lacks standing to bring this modification action. Since the DHR lacks standing to bring the modification action, argues the appellant, Jean Allen is a necessary party to the action. The appellant also contends that the modification action should have been dismissed since (a) the child did not receive public assistance, and (b) there was no allegation in the complaint that the child was in need of additional support. For the reasons that follow, we affirm the trial court.
1. We first address the appellant's contention that the DHR lacks standing to bring this modification action. We conclude that because the DHR has the statutory authority to file a modification action, it has the right, as part of that action, to domesticate the South Carolina decree.
In Scruggs, this Court found no error in the trial court's holding "that the DHR was authorized to bring an action on behalf of the appellant's two minor children to modify his support obligation to them," Scruggs, supra at 589, and we affirmed the trial court's denial of the appellant's motion to dismiss the DHR's complaint. OCGA 19-11-8
(b), although not relied on in Scruggs, supports the holding that the DHR is entitled to bring a modification action because a modification action is an "appropriate action . . . to assure that the responsible parent supports the child."
In Hutto v. Plagens, supra, this Court stated that "[a] plea for domestication of a foreign divorce decree may be asserted in the same action in which modification of that decree is sought, Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979)
." Hutto, 254 Ga. at 514. Hutto thus stands for the proposition that a party who is entitled to bring a modification action may also assert, as part of that action, a plea for domestication of a foreign decree. Based on the foregoing, we hold that because the DHR can properly bring an action to modify child support obligations, it is entitled to seek to domesticate a foreign decree "in the same action in which modification of that decree is sought," just as a party to the original modification decree would be entitled. 3
2. The appellant argues that regardless of whether the DHR could domesticate the foreign decree, the complaint does not support a modification action because (a) the child does not receive public assistance, and (b) there is no allegation in the complaint that the child is in need of additional support. We conclude that although DHR may bring a modification action on behalf of a child who does not receive public assistance, the DHR must allege that the child is in need of additional support. Nevertheless, for the reasons that follow, we affirm the trial court's denial of appellant's motion to dismiss.
First, the DHR is not only authorized, but is required to accept applications from a custodian of a minor child who is not a recipient of public assistance. OCGA 19-11-8
(b). See also OCGA 19-11-6
(c). However, we interpret OCGA 19-11-8
(b) to authorize DHR to file modification actions on behalf of children who do not receive public assistance only in cases where DHR can show the child's need for additional support. DHR is not authorized to seek modification of child support on behalf of a child not receiving public assistance solely on the basis of a change in either parent's financial circumstances. 4
In reaching the foregoing conclusion, we recognize that under the general modification statute, OCGA 19-6-19
, either parent may seek modification of support based on a change in either of their financial circumstances, or on the needs of the children. We further recognize that, as an assignee to a parent's support rights, see Division 1, DHR, to some degree, stands in the shoes of the party seeking support. 5
However, we do not believe the Legislature intended to give DHR the power to seek modification of support to the same extent a parent may do so. Rather, the legislative history behind OCGA 19-11-8
indicates an intent to authorize DHR to pursue appropriate action to assure adequate support from the responsible parent of a minor child not receiving public assistance, in order to prevent the child's family from having to apply for public assistance. 6
Of course DHR is not limited to asserting a claim for modification on behalf of children only where the custodians of those children otherwise would have to seek public assistance. Such action may be pursued even where, as in this case, the child's status is well above the requirement for public assistance, so long as the need for additional support legitimately can be asserted. 7
DHR's complaint in this case does not allege that the child needs additional support, but alleges only that the father's financial status has improved substantially so that additional support is warranted. Nevertheless, in light of the facts that appellant's motion to dismiss was based on the pleadings, and that our holding regarding DHR's limited authority in modification proceedings for non-public assistance families was not readily apparent from a reading of the relevant statutes, DHR may amend the complaint in this case to cure its deficiencies. Accordingly, this case is remanded to the trial court to provide DHR an opportunity to amend its complaint, if it can, consistent with this opinion.
SEARS-COLLINS, Justice, concurring in part and dissenting in part.
I agree with Division 1 of the majority opinion. However, I disagree with Division 2 to the extent it requires the DHR to allege a need for additional support when bringing a modification action on behalf of a child who is not receiving public assistance. Therefore, I concur with the majority's affirmance of the trial court, but I dissent to the remand for amendment of the complaint.
The primary purpose of statutory construction is to ascertain the intent of the legislature; however, if the language of the statute is plain and unequivocal, then the intent of the legislature is apparent on the face of the statute, and it is unnecessary, in fact forbidden, to go behind the words of the statute to extraneous sources to ferret out a construction contrary to those words. Telecom*USA v. Collins, 260 Ga. 362 (393 SE2d 235) (1990)
Burnam v. Wilkerson, 217 Ga. 657
, 660 (124 SE2d 389
) (1962); Atlanta Casualty v. Flewellen, 164 Ga. App. 885
, 887 (300 SE2d 166
) (1982). The language of the statutes at issue in this case is plain and unequivocal, yet the majority has chosen to interpret the legislative intent contrary to that language. OCGA 19-11-2
provides as follows:
(a) The underlying purposes of this article are:
(1) To provide that public assistance to needy children is a supplement to the contribution of the responsible parents;
(2) To provide for a determination that a responsible parent is able to support his children; and
(3) To provide for the enforcement of an able parent's obligation to furnish support.
(b) This article shall be liberally construed to promote its underlying purposes.
(b) provides that [t]he [DHR] shall accept applications for child support enforcement services from a custodian of a minor child who is not a recipient of public assistance and shall take appropriate action under this article, the child support statutes, or other state and federal statutes to assure that the responsible parent supports the child. [Emphasis supplied.]
The majority has required the DHR to allege that the child is in need of additional support in a modification action brought on behalf of a child who does not receive public assistance. The only reason given by the majority for this requirement is that the legislative history of OCGA 19-11-8
(b) "indicates an intent to authorize [the] DHR to pursue appropriate action to assure adequate support from the responsible parent of a minor child not receiving public assistance, in order to prevent the child's family from having to apply for public assistance." (Majority p. 524.) 9
The literal words of the statute, however, prohibit such a construction. Rather, the statute clearly requires the DHR to "take appropriate action under this article, the child support statutes, or other state and federal statutes to assure that the responsible parent supports the child." OCGA 19-11-8
(b). The statutory language, then, clearly permits the DHR to pursue a modification action under OCGA 19-6-19
(a), this state's statutory provision governing the modification of child support obligations. That Code section provides that a child support award "shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse or in the needs of the child or children." See also Wright v. Wright, 246 Ga. 81
, 82 (268 SE2d 666
) (1980). Thus, the literal language of the statute permits the DHR to bring a modification action on behalf of a minor child not receiving public assistance based solely upon a change in the financial ability of the spouse making payments. Moreover, the plain language of OCGA 19-11-8
contains no requirement that would restrict the DHR to filing a modification action on behalf of a child only if there has been a change in the child's needs.
Furthermore, the majority's statement of legislative intent actually contradicts its limiting construction of 19-11-8
. In this regard, allowing the DHR to seek modification of child support obligations based on the increased income of the noncustodial parent would help to ensure "increased child support collections for non-welfare families, [so that] those families would not then be forced to turn to public assistance." (Majority p. 524, fn. 6.)
Child support enforcement in our country is a national tragedy. In Georgia, non-compliance is rampant and has contributed to an epidemic of poverty for millions of children and injustice for others. OCGA 19-11-2
and the provisions that follow seek to amend this imperfect system by providing a mechanism whereby custodial parents of dependent children in this state can, with minimal time and expense, obtain assistance with the paperwork involved in child support enforcement, with locating the person obligated to pay support and with making sure that the proper amount of money is collected and disbursed.
Until today, the Child Support Recovery Act was a powerful tool for any child who needed it. Today, for many of our state's children, it is impotent.
Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, Robert O. Davies, for appellee.