Kirkpatrick v. Woodruff , 243 Ga. 736 ( 1979 )

243 Ga. 736 (1979) 256 S.E.2d 465

KIRKPATRICK
v.
WOODRUFF.

34913.

Supreme Court of Georgia.

Submitted May 11, 1979. Decided May 31, 1979.

Michael D. Hurtt, Finn & Cunningham, R. Scott Cunningham, for appellant.

Mitchell, Mitchell, Coppedge, Boyett, Wester & Bates, Erwin Mitchell, Susan W. Bisson, for appellee.

MARSHALL, Justice.

The plaintiff former wife and defendant former husband obtained a divorce in 1973 in the Whitfield Superior Court. The divorce decree incorporates an agreement of the parties requiring the husband to pay child support.

In October of 1977, the former wife filed an attachment for contempt against the former husband due to his nonpayment of child support. At the contempt hearing, on March 13, 1979, the former husband filed a motion to dismiss the attachment for contempt on the ground that Code §§ 30-207 and 74-105 are violative of the Equal Protection clauses of the state and federal Constitutions in that they impose the child-support obligation solely on the husband. See Orr v. Orr, — U. S. — (99 SC 1102, 59 LE2d 306) (1979); Stitt v. Stitt, 243 Ga. 301 (253 SE2d 764) (1979). The trial court agreed and dismissed the attachment for contempt. The former wife appeals. Held:

In Kosikowski v. Kosikowski, 243 Ga. 413 (254 SE2d 363) (1979), we held that a failure to challenge the constitutionality of our alimony laws at trial is a waiver and precludes any attempt to thereafter raise the issue on appeal. In line with Kosikowski, we now hold that questions concerning the constitutionality of our alimony laws can not be raised in contempt proceedings if such issues were not timely and properly raised at trial.

Judgment reversed. All the Justices concur.