Department of Human Resources v. Offutt

Blackburn, Judge,

dissenting.

I respectfully dissent to the majority opinion, overruling Dept. of Human Resources v. Brandenburg, 211 Ga. App. 715 (440 SE2d 498) (1994). In denying DHR’s request for an income-deduction order, the trial court noted that Offutt had an excellent history of making child support payments and had not been the subject of any court-related proceeding concerning child support since the original divorce decree was entered. The court concluded that under these circumstances, *828OCGA § 19-6-32 does not mandate the entry of an income-deduction order.

OCGA § 19-11-6 (c) provides in part, “[t]he department shall accept applications for child support enforcement services from any proper party or person notwithstanding the fact that the child or children do not receive public assistance. When made, this application to the department shall constitute an assignment of the right to support to the department.” (Emphasis supplied.)

“OCGA § 19-6-32 (a) (1) provides that after a child-support agency has obtained a judgment establishing, enforcing, or modifying a child support obligation, the court shall enter a separate order for income deduction if one has not been entered.” (Punctuation omitted; emphasis supplied.) Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, 733 (399 SE2d 65) (1991). The statute mandates the entry of income-deduction orders. Id. While the rationale and ruling of the trial court do not seem inappropriate, the relevant statutes do not permit the ruling to stand. The trial court does however have discretion, upon a showing of good cause, to determine when the income-deduction order becomes effective under OCGA § 19-6-32 (c). Dept. of Human Resources v. Brandenburg, supra. In Brandenburg, this court held that the issuance of an income-deduction order was mandatory where Ms. Brandenburg received public assistance and a judgment had been entered in 1986 ordering Mr. Brandenburg to provide child support.

The majority maintains that OCGA § 19-6-32 (a) (2) governs whether an income-deduction order should issue in this case. However, such an application would render meaningless the specific limiting language contained in OCGA § 19-6-32 (a) (1) and violate a cardinal rule of statutory construction. Subsection (a) (1) is applicable when an application has been made to a child support agency, as in this case, and a judgment has been entered establishing, enforcing, or modifying a child support obligation. The meaning of the limiting language is that subsection (a) (1) applies to actions which involve requests made to child support agencies for financial assistance or assistance in enforcing child support obligations after July 1, 1989, the effective date of the statute, and a judgment has been entered establishing, modifying, or enforcing the child support obligation. In contrast, OCGA § 19-6-32 (a) (2) applies to actions involving other child support orders and spousal orders prior to July 1, 1989. If the legislature intended otherwise, it need not have provided any limiting terms at all in the statute. See Intl. Indem. Co. v. Enfinger, 170 Ga. App. 443 (317 SE2d 841) (1984) (dissenting opinion). “Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another.” (Punctuation omitted.) *829Bd. of Trustees of the Policemen’s Pension Fund of Atlanta v. Christy, 246 Ga. 553 (272 SE2d 288) (1980).

Decided July 13, 1995 Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Kevin M. O’Connor, Assistant Attorneys General, for appellants. Stanley P. Offutt, pro se.

I am constrained to conclude that the trial court erred in refusing to enter an income-deduction order in this case for the reasons stated.

I am authorized to state that Presiding Judge Birdsong, Judge Andrews and Judge Johnson join in this dissent.