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Unofficial Opinion 94-7

Unofficial Opinion 94-7

March 16, 1994
To: 

Judge
Griffin Judicial Circuit

Re: 

Civil actions filed under the Child Support Recovery Act, O.C.G.A. § 19-11-1 et seq., are subject to fees charged by the clerk for alternative dispute resolution programs under O.C.G.A. § 15-23-7; but collection of fees must await conclusion of the action and the fee ordinarily should be charged to the child support obligor.

This is in response to your request for my opinion as to whether civil actions filed on behalf of the state pursuant to the Child Support Recovery Act, O.C.G.A. § 19-11-1 et seq., are subject to fees assessed for purposes of funding alternative dispute resolution programs under O.C.G.A. § 15-23-1 et seq. If such cases are subject to these fees, you further ask who should be responsible for their payment.

When construing statutes, the goal of any inquiry is to effectuate the intention of the General Assembly, keeping in mind the old law, the evil, and the remedy. O.C.G.A. § 1-3-1(a); Calhoon v. Mr. Locksmith Co., 200 Ga. App. 618, 620 (1991). Ordinarily, the state is not bound by passage of a law unless it is expressly named therein. O.C.G.A. § 1-3-8. Since the state is not named in the Alternative Dispute Resolution

Act, O.C.G.A. § 15-23-1 et seq., it might be concluded that the fees provided in that act are inapplicable to child support recovery actions. Compare 1984 Op. Att'y Gen. U84-7. However, I reach the opposite conclusion when reading that act in pari materia with other statutes on filing fees due from the state.

Prior to July 1, 1991, the statute governing filing fees due the clerks of court, O.C.G.A. § 15-6-77, provided that "Nothing contained in this subsection shall be deemed to require such sum of the state, its agencies, or political subdivisions." O.C.G.A. § 15-6-77(b)(5). Effective July 1, 1991, the General Assembly revised this Code Section to provide that "Nothing contained in this subsection shall be deemed to require advance payment of such sum by the state, its agencies, or political subdivisions." O.C.G.A. § 15-6-77(e)(2) (emphasis added). Thus, it appears that the General Assembly intended that the state, its agencies, or political subdivisions be liable for filing fees, but that these fees need not be tendered as of the filing of the action.

The rationale behind this statutory change is simple. Actions filed on behalf of the public should be allowed to proceed without prepayment of filing fees as they further the public interest and the state, its agencies, and political subdivisions pose no danger of nonpayment. In addition, if the public body is successful in prosecuting its action, this cost can be taxed to the opposing party by the court at the conclusion of the action.

Because both O.C.G.A. § 15-6-77(e)(2) and O.C.G.A. § 15-23-7 relate to filing fees, they are statutes in pari materia and should be construed together. See Georgia Marble Co. v. Whitlock, 260 Ga. 350, 354 (1990); Reid Rental, Inc. v. City of Waycross, 197 Ga. App. 676, 677 (1990). It would be an incongruous result to conclude that the General Assembly intended for the state, its agencies, and political subdivisions to be subject to filing fees in general, but to be excluded from the fee imposed for alternative dispute resolution programs; especially in light of the broad language used in O.C.G.A. § 15-23-7. Thus, I conclude that actions filed under the Child Support Recovery Act are subject to the fee imposed in O.C.G.A. § 15-23-7. To remain consistent with the related statute, O.C.G.A. § 15-6-77(e)(2), though, this fee should not be required as an advance payment from the state, its agencies, or political subdivisions.

There is one exception of note which should be mentioned. In concluding that actions filed under the Child Support Recovery Act are subject to this fee, I do not mean to include those cases which are filed under the Uniform Reciprocal Enforcement of Support Act (URESA), O.C.G.A. § 19-11-40 et seq. The General Assembly has indicated its intention that no filing fee be imposed in conjunction with cases filed under this reciprocal law. O.C.G.A. § 19-11-56. Accordingly, these cases are not subject to the fee.

Having concluded that the fee imposed in O.C.G.A. § 15-23-7 is applicable to child support recovery actions, I will address your inquiry concerning the party responsible for paying this fee. To answer this question, another statute which should be read in pari materia with O.C.G.A. § 15-23-7 is instructive. Effective April 20, 1992, the General Assembly charged the child support receivers of the various counties with the task of collecting "all costs of court and service fees of the sheriff in any [child support] action initiated by the state." O.C.G.A. § 15-15-5(b). Using mandatory language, the Code Section requires the child support receiver "to assess and collect from the paying party." Id. The fee is to be collected "with the first child support payment collected." Id.

Reading this language in pari materia with O.C.G.A. § 15-23-7, I conclude that the child support obligor is responsible for paying the additional fee to support the alternative dispute resolution program. In the event no child support obligation is established, the fee would be due from the state agency, or political subdivision initiating the action. I also note that like other fees, the alternative dispute resolution fee should not be collected in such a manner so as to reduce any payment due the parent or guardian of the minor child. See O.C.G.A. § 15-15-5(c).

In closing, this advice presumes that all prerequisites for charging this fee have already been met prior to its imposition. See O.C.G.A. § 15-23-10. Consequently, it is my unofficial opinion that civil actions brought pursuant to the Child Support Recovery Act are subject to the fee imposed under O.C.G.A. § 15-23-7 to support alternative dispute resolution programs, but the state, its agencies, and political subdivisions should not be compelled to make advance payment of the fee which should ordinarily be collected from the child support obligor upon the conclusion of the action.

Prepared by:

WILLIAM M. DROZE
Assistant Attorney General