Amerson v. Vandiver
| Decision Date | 26 January 2009 |
| Docket Number | No. S08A1707.,S08A1707. |
| Citation | 673 S.E.2d 850,285 Ga. 49 |
| Parties | AMERSON v. VANDIVER. |
| Court | Georgia Supreme Court |
Brenda H. Trammell, Madison, for appellant.
Martin L. Fierman, Eatonton, for appellee.
Pamela D. Amerson and John M. Vandiver were divorced in March 2004. The final divorce decree incorporated a settlement agreement which, in relevant part, provided that Ms. Amerson would have sole and permanent custody of the parties' two children, that Mr. Vandiver agreed to the termination of his parental rights and would have no obligation for child support, and that such termination was in the best interests of the children. In April 2007, the judgment was amended solely to correct the spelling of one child's name.
In March 2008, Mr. Vandiver moved to set aside the divorce decree on the ground that the superior court lacked subject matter jurisdiction to terminate his parental rights. Although it found that the agreement was voluntarily entered and is effective as a contract between the parties, the superior court set aside so much of the final judgment as may be construed to terminate Mr. Vandiver's parental rights. The superior court also transferred the case to the juvenile court for final disposition of all issues regarding termination of parental rights, custody, visitation, child support, and all ancillary matters necessary for the entry of a final judgment. Ms. Amerson appeals pursuant to our grant of her application for interlocutory appeal.
Georgia law authorizes judicial approval of a parent's voluntary agreement for the termination of his parental rights when it is in the best interest of the child. Taylor v. Taylor, 280 Ga. 88, 89, 623 S.E.2d 477 (2005). Under those limited circumstances, the agreement is enforceable and does not violate the principle that "one parent cannot contract away the right of the child to be supported by the other parent." Taylor v. Taylor, supra at 90, n. 2, 623 S.E.2d 477. We also note that OCGA § 15-11-98(a), which governs the appointment of legal counsel and guardians ad litem to represent children in proceedings for termination of parental rights, does not apply to a motion to set aside and, moreover, that no issue has been raised regarding any failure to make such appointments in either the original divorce action or the motion to set aside. See Department of Human Resources v. Ammons, 206 Ga.App. 805, 807(2), 426 S.E.2d 901 (1992); In the Interest of S.L., 189 Ga.App. 361, 363, 375 S.E.2d 484 (1988) (); In the Interest of C.M., 172 Ga.App. 757, 324 S.E.2d 581 (1984); Dan E. McConaughey, Ga. Divorce, Alimony and Child Custody, § 22:14, p. 851 (2007-2008 ed.).
However, under OCGA § 15-11-28(a)(2)(C), except in connection with an adoption proceeding, which has not occurred here, the juvenile court is the sole court for initiating action involving any proceeding for the termination of parental rights. Therefore, Cothran v. Cothran, 237 Ga. 487, 228 S.E.2d 872 (1976). See also In the Interest of A.D.B., 232 Ga.App. 697, 503 S.E.2d 596 (1998). Compare Taylor v. Taylor, supra (). Furthermore, parties cannot
confer subject-matter jurisdiction on a court by agreement or waive the defense by failing to raise it in the trial court. That is not to say, however, that there is no defense available to an ... attack on a void judgment. [Cits.] Under limited circumstances, the equitable defenses of laches and estoppel may prevent a party from complaining of a court's lack of subject-matter jurisdiction. [Cits.]
Abushmais v. Erby, 282 Ga. 619, 622(3), 652 S.E.2d 549 (2007). See also Howington v. Howington, 281 Ga. 242, 243(1), 637 S.E.2d 389 (2006) ( ). The stability of the family and of society demands that one who intends to attack an apparently valid decree of divorce should proceed with the utmost promptness. Herring v. Herring, 246 Ga. 462, 464, 271 S.E.2d 857 (1980) (cited in Abushmais); Sikes v. Sikes, 231 Ga. 105, 107, 200 S.E.2d 259 (1973).
Mr. Vandiver affirmatively invoked the jurisdiction of the superior court for the purpose of obtaining a divorce, consented to that court's incorporation of the...
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