In a petition for contempt against Michael O. Word based on Word's arrearage in child support payments the Department of Human Resources (DHR) sought a separate income deduction order under OCGA 19-6-30
(c) et seq. Following a hearing the trial court declined to hold Word in contempt, finding among other mitigating circumstances that Word had paid the arrearage. Further, the trial court refused to enter an income deduction order holding, sua sponte, OCGA 19-6-32
(a), which requires mandatory income deduction orders in certain child support cases, unconstitutional because it violates the doctrine of separation of powers. 1
We granted DHR's application to appeal and we reverse and remand because the legislature, in establishing mandatory income deduction orders in child support cases, infringed neither on judicial authority nor function.
1. The trial court held that the mandatory income deduction order 6
constitutes an attempt by the legislature to deprive the courts of their equitable injunctive power by requiring the courts to issue an injunction to collect a civil debt. In analyzing whether the statute violates the separation of powers doctrine of our state constitution we note at the outset the presumption that acts of the legislature are constitutional, and our duty to construe an act as constitutional where possible. 7
We also note that while our state constitution's doctrine of separation of powers 8
declares that the three branches of government shall be separate and distinct, the doctrine does not mean a separation in all respects. 9
The mandatory income deduction statute does not violate the separation of powers doctrine. The statute is one of procedure not substance, requiring simply that, where a court has determined a level of child support and ordered support, it then must issue an income deduction order. It does not require the court to decide contested facts in any way; rather, it dictates what the consequences of a court's judgment shall be. 10
Although the legislature may not invest itself with judicial power, the three branches are coordinate parts of one government, and the legislature may invoke the action of the judicial branch so long as it does not assume the constitutional "field of action" of that branch. 11
The Supreme Court has stated that in determining what the legislature may do in invoking assistance from the judiciary, "the intent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination." 12
Common sense and the inherent necessities of governmental coordination involved in the field of child support demonstrate that the mandatory income deduction provision is part of a plan based on a mutual goal to alleviate the problem of delinquent child support. To the extent the legislature has established judicial action as part of that plan, it has not improperly infringed on
MIN. NEWS 2776, 2785. See People ex rel. Sheppard v. Money, 529 NE2d 542, 545 (Ill. 1988).
any judicial function. 13
2. The income deduction provisions of the Code state that income deduction orders under 19-6-32
(a) become effective immediately unless the court "upon good cause shown" finds that it "shall be effective upon the delinquency in an amount equal to one month's support" or unless the parties agree otherwise. OCGA 19-6-32
(c). The trial court correctly construed this section as providing a delayed trigger for the implementation of the order, not affecting the trial court's duty to enter the order in the first instance. Because the trial court held 19-6-32
(a) unconstitutional, it did not reach the issue of whether Word showed good cause so that the effective date of the order should be delayed. Therefore, we remand this appeal to the trial court for that determination.
In remanding, we direct the trial court that good cause is the exception and should be found cautiously and only under narrow circumstances. Any finding of good cause not to require immediate withholding "must be based on at least a written determination that implementing immediate wage withholding would not be in the best interest of the child" and in cases involving modification of support orders, proof of timely payment of previously ordered support. 14
However, in no case is the fact that the obligated parent is current in his or her support obligation, in itself, "good cause." 15
For the above reasons, we reverse and remand this case to the trial court to issue an income deduction order under OCGA 19-6-32
(a) which order shall be effective immediately unless the trial court determines in accordance with this opinion that Word has demonstrated good cause to delay implementation.
Michael O. Word, pro se.