Allifi v. Raider

• Court: Georgia Court of Appeals
• Writing for the Court: MILLER
• Citation: Allifi v. Raider, 323 Ga.App. 510, 746 S.E.2d 763 (Ga. App. 2013)
• Decision Date: 16 July 2013
• Docket Number: Nos. A13A0758,A13A0759.,s. A13A0758
• Parties: ALLIFI v. RAIDER; Green v. Raider.

323 Ga.App. 510

746 S.E.2d 763

ALLIFI

v.RAIDER;

Green

v.Raider.

Nos. A13A0758, A13A0759.

Court of Appeals of Georgia.

July 16, 2013.

Susan Warren Cox, Statesboro, Joseph D. McGovern, for Jessica Alliffi.

James Clayton Metts III, Savannah, for Jonas Raider.

MILLER, Judge.

These consolidated appeals arise from Jonas Raider's petition to legitimate his then two-year-old son, and the subsequent petition of the child's step-father to adopt the child. The trial court denied the legitimation petition, and this Court subsequently denied Raider's application for discretionary review. Thereafter, Raider filed a motion to set aside judgment pursuant to OCGA § 9–11–60(d)(1), on the ground that the superior court lacked jurisdiction over the legitimation petition based on Raider's prior acknowledgment of legitimation pursuant to OCGA § 19–7–22(g)(2). The superior court granted Raider's motion to set aside, and concurrently denied step-father Ben Green's pending petition to adopt the child. These consolidated appeals ensued.

In Case No. A13A0758, Jessica Allifi, the child's mother, contends that the trial court erred in granting Raider's motion to aside the final judgment denying his legitimation petition.¹ In Case No. A13A0759, Green also challenges the trial court's order granting Raider's motion. For the reasons that follow, we reverse and remand.

This Court will not reverse a trial court's ruling on a motion to set aside unless the trial court abused its discretion. See Barner v. Binkley, 304 Ga.App. 73, 74(1), 695 S.E.2d 398 (2010).

So viewed, the evidence showed that the minor child, T.R., was born on March 24, 2008. Raider was present at the child's birth and signed the birth certificate. The day after T.R.'s birth, Raider and Allifi signed a paternity acknowledgment, which included a statement indicating that the relationship between Raider and T.R. shall be considered legitimate for all purposes under the law, pursuant to OCGA § 19–7–22(g)(2).

In December 2008, Raider and Allifi became engaged, and Raider moved in with Allifi and T.R. in June 2009. In February 2010, Raider and Allifi separated. For the next eight months, Raider had regular visitation with T.R.

In September 2010, Raider filed his petition to legitimate T.R. At the evidentiary hearing on Raider's motion, the evidence showed that Raider had posted photographs on the internet showing him smoking marijuana, failed to provide appropriate care when T.R. had a fever and when he ingested prescription medication, and posted inappropriate photos of then two-year-old T.R. on the internet. The trial court subsequently denied Raider's petition, finding that legitimation was not in T.R.'s best interest. In July 2011, this Court denied Raider's application for discretionary review of the order denying legitimation.

In March 2012, Raider filed a motion to set aside the judgment on his legitimation petition. In April 2012, Green filed a petition in superior court to adopt T.R. pursuant to OCGA § 19–8–10. Green alleged that Raider failed to exercise proper parental care or control due to certain alleged misconduct including posting photographs on the internet showing him smoking marijuana, failing to provide appropriate care when T.R. had a fever and when T.R. ingested prescription medication, and posting inappropriate photos of T.R. on the internet.

Thereafter, Allifi moved for summary judgment on Raider's motion to set aside, arguing that the motion was barred by the doctrines of res judicata and collateral estoppel. The trial court subsequently granted Raider's motion to set aside the judgment on his legitimation petition, finding that its original order denying legitimation lacked validity because it was based upon a mistake of fact and was preempted by the parties' acknowledgment of legitimation. The trial court also denied Green's pending adoption petition, finding that Raider's alleged misconduct was not so serious that his parental rights should be terminated.

Case No. A13A0758

1. Allifi contends that the trial court erred in granting Raider's motion to set aside the final judgment denying his legitimation petition. We agree.

The Georgia Constitution confers broad original jurisdiction upon superior courts. The Constitution provides that “[t]he superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution.” 1983 Ga. Const., Art. VI, Sec. IV, Par. 1; see also Ertter v. Dunbar, 292 Ga. 103, 104, 734 S.E.2d 403 (2012). Moreover, superior courts have subject matter jurisdiction over legitimation petitions filed by fathers of children born out of wedlock. See OCGA § 19–7–22(a); see also Brine v. Shipp, 291 Ga. 376, 379(3), 729 S.E.2d 393 (2012). Accordingly, the superior court had jurisdiction over Raider's petition to legitimate T.R.

A father's right to legitimate his child is absolute, subject only to the qualification that the natural mother may object. See In re Pickett, 131 Ga.App. 159, 161, 205 S.E.2d 522 (1974).

OCGA § 19–7–22(g)(2) provides that:

[i]n any voluntary acknowledgment of paternity which has been made and has not been rescinded pursuant to Code Section 19–7–46.1, when both the mother and father freely agree and consent, the child may be legitimated by the inclusion of a statement indicating a voluntary acknowledgment of legitimation.

(Emphasis supplied). The history of the legitimation statute shows that the legislature intended to provide a statutory right whereby a father could legitimate his child born out of wedlock and the child could then inherit from the father's estate and enjoy the father's name. See In re Pickett, supra, at 160, n. 1, 205 S.E.2d 522. Moreover, the current version of OCGA § 19–7–22 was enacted in 2005 to provide for legitimation by a voluntary acknowledgment of paternity and legitimation in certain circumstances. See Ga. L. 2005, p. 1491, § 1.

In 2008, the legislature enacted Ga. L. 2008, p. 667, § 4, which clarified the methods of legitimation of a child and included enactment of the new statutory provision set forth in OCGA § 19–7–21.1. That statute, which became effective July 1, 2008, provides in pertinent part:

Acknowledgment of legitimation means a written statement contained in a voluntary acknowledgment of paternity form indicating that a mother and father of a child born out of wedlock have freely agreed and consented that the child may be legitimated. ... Prior to the child's first birthday, a father of a child born out of wedlock may render his relationship with the child legitimate when both the mother and father have freely agreed, consented, and signed a voluntary acknowledgment of paternity and an acknowledgment of legitimation which have been made and have not been rescinded pursuant to Code Section 19–7–46.1.²

(Punctuation omitted, emphasis supplied). This Court has noted that OCGA § 19–7–21.1 circumvents the safeguards inherent in OCGA § 19–7–22, which requires a petition in Superior Court and a finding that legitimation is in the best interest of the child. See Sauls v. Atchison, 316 Ga.App. 792, 793, n. 1, 730 S.E.2d 459 (2012). Moreover, this case shows that there is obvious potential for a statutory acknowledgment of legitimation to create significant difficulties for our trial judges and practitioners, and may result in inconsistent findings due to the unnecessary filing of petitions for legitimation. See id.

Here, in this very case, in ruling on Raider's motion to set aside the order denying his legitimation petition, the trial court specifically noted that it was unaware that the child had been administratively legitimated. The trial court then granted Raider's motion to set aside, finding that the legitimation order was invalid because it was based on a mistake of fact and was preempted by the administrative legitimation. Although this case specifically highlights the potential for inconsistent findings with regard to the filing of a legitimation petition and the validity of a voluntary acknowledgment of legitimation, this Court is constrained to reverse the grant of Raider's motion to set aside the order denying his legitimation petition.

It is clear that Raider was aware of the voluntary acknowledgment of paternity at the time he filed his legitimation petition. Since Raider should have brought the voluntary acknowledgment of legitimation to the trial court's attention prior to judgment on his legitimation petition, he cannot now use the existence of this document as a basis to set aside the trial court's final judgment thereon. See Herringdine v. Nalley Equip. Leasing, 238 Ga.App. 210, 217(4), 517 S.E.2d 571 (1999) (ruling that defendant failed to show that he was entitled to relief from judgment for fraud under OCGA § 9–11–60(d)(2) where defendant failed to exercise proper diligence to discover forgery prior to judgment).³ Accordingly, we reverse the grant of Raider's motion under OCGA § 9–11–60(d) based on a mistake of fact regarding the voluntary acknowledgment of legitimation, and remand this case for further proceedings consistent with this opinion.

Case No. A13A0759

2. On appeal from the denial of his petition to adopt T.R., Green also contends that the trial court erred in setting aside the judgment on Raider's legitimation petition.

The record shows that Green filed his petition to adopt T.R. pursuant to OCGA § 19–8–10(a)(4), which provides that the parent's surrender or termination of parental rights shall not be required as a prerequisite to the filing of an adoption petition where the parent has failed to exercise proper parental care or control of the child. Green based his adoption petition on what appears to be the same evidence presented in opposition to Raider's legitimation petition, i.e., that Raider posted photographs on the internet showing him smoking marijuana, failed to provide appropriate care when T.R. had a fever and when he ingested prescription medication, and posted inappropriate photos of T.R. on the...