Parker v. Eason , 265 Ga. 236 ( 1995 )

Hunstein, Justice.

Karen Eason filed a citation for contempt in October 1993 seeking to recover from her former husband, Edward Parker, child support payments that had accrued since a March 1983 judgment. Parker asserted the dormancy of that judgment in his answer. See OCGA § 9-12-60. The trial court held that Eason’s contempt action constituted a revival action under OCGA § 9-12-61 and, based upon Ea-son’s October 1984 general execution docket entry, awarded Eason the sums sought for the ten-year period preceding filing of the contempt action. We granted Parker’s application for discretionary review on the issue whether the trial court’s finding comports with our dormancy statutes, see OCGA § 9-12-60 et seq., and we reverse.

There is no question that child support judgments are subject to statutes regarding dormancy even though the enforcement of these judgments is by means of a contempt action. Wannamaker v. Carr, 257 Ga. 634 (2) (362 SE2d 53) (1987). OCGA § 9-12-61 provides

[w]hen any judgment obtained in any court becomes dormant, the same may be renewed or revived by an action or by scire facias, at the option of the holder of the judgment, within three years from the time it becomes dormant.

Looking to the substance of Eason’s pleading rather than solely its nomenclature, see generally Martin v. Williams, 263 Ga. 707 (1) (438 SE2d 353) (1994); OCGA § 9-11-8 (f), the record reveals that Eason sought only to have Parker held in contempt for failure to make the child support payments and did not include revival of the dormant judgment among the relief she sought. Compare Wannamaker, supra (contempt action and application for writ of scire facias); Kight v. Behringer, 192 Ga. App. 62 (383 SE2d 624) (1989) (complaint to revive and enforce dormant judgments for child support); see also Watkins v. C & S Nat. Bank, 163 Ga. App. 468 (1) (294 SE2d 703) (1982) (relief sought included revival). Accordingly, under the facts in this case, the trial court erred by finding that the filing of Eason’s citation for contempt constituted an “action” under OCGA § 9-12-61 so as to revive the dormant judgment. See Turner v. Wood, 162 Ga. App. 674 (292 SE2d 558) (1982) (garnishment proceeding not an “action” under OCGA § 9-12-61). Accord Zerblis v. Zerblis, 239 Ga. 715 (238 SE2d 381) (1977).

As the trial court correctly noted, Eason has the right to consider those payments Parker has made during the ten years following the March 1983 judgment as having been applied to the oldest amounts owing. Wood v. Wood, 239 Ga. 120 (6) (236 SE2d 68) (1977). However, unlike the situation in Wood, it appears that there remain amounts currently owing and unpaid that are more than seven years old. Accordingly, the judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

Judgment reversed and remanded with direction.

All the Jus tices concur, except Fletcher and Carley, JJ., who concur specially.