Cabrel v. Cabrel
Decision Date | 31 May 2011 |
Docket Number | Nos. S11A0212,S11X0214.,s. S11A0212 |
Citation | 289 Ga. 233,710 S.E.2d 810 |
Parties | CABRELv.LUM et al.Lum et al.v.Cabrel. |
Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Smith, Welch, & Brittain, A.J. Welch, Jr., David Matthew Waldroup, for appellants.R. Edwin Joyner, for appellee.
Appellant/cross-appellee Aline Cabrel is the surviving spouse of Lucien Cabrel, who died in December 1963; appellees/cross-appellants Ramona Lum and Mary Jamelia Griffin are the adult daughters of Aline and Lucien Cabrel. Mrs. Lum and Mrs. Griffin and their two brothers 1 were minor children when their father died, and the four minor children and their mother were the recipients of a joint award of year's support in 1964. In 2000, the daughters filed a petition to partition real property located in Henry and Spalding counties in which property the daughters claimed an interest by virtue of the 1964 joint award of year's support.2 In their petition, the daughters also sought an accounting and to recover from their mother income generated by the property between 1964–1997. In 2001, Mrs. Cabrel withdrew her opposition to partitioning the property and, as a result of that concession, the superior court entered a consent order granting the application for partitioning. In 2004, a judgment was entered on a jury verdict approving the partitioners' return, thereby awarding the daughters fee-simple title to approximately 189 acres of the property and Mrs. Cabrel fee-simple title to 487 acres. There remained pending the daughters' claim for a portion of the income generated by the property since 1964.
In January 2009, the trial court granted partial summary judgment to the daughters on the remaining issue of income, finding their mother was liable to them for their proportionate share of the income produced by the property from 1964–1997. The trial court denied summary judgment to the daughters as to the amount to which the daughters were entitled and whether Mrs. Cabrel was entitled to any set-offs. In September 2009, Mrs. Cabrel filed a motion for summary judgment on the issue of damages and sought to set aside the 2004 judgment partitioning the property, asserting that her daughters had no right to partition the property or to income generated by the real property since that property was awarded in 1964 to her and the minor children as a year's support. In July 2010, the trial court entered an order declining to set aside the judgment of partition and granting Mrs. Cabrel summary judgment on the issue of damages, thereby awarding the daughters no monetary damages. The trial court also denied the daughters' request for an award of attorney fees under OCGA § 13–6–11. The trial court recognized that, during the life of the surviving spouse, a child cannot force partitioning of property received as an award of year's support, but held that the 2004 partitioning occurred as a result of Mrs. Cabrel having consented to the partitioning and not having appealed the partitioning judgment or having sought timely to vacate the judgment. The trial court ruled that Mrs. Cabrel was barred by the doctrines of res judicata, laches, estoppel, and waiver from seeking to disturb the 2004 judgment of partition. On the issue of damages, the trial court found in favor of Mrs. Cabrel, ruling that because there remained pending the issue of the amount the daughters were entitled to collect as a result of their mother's use of the property awarded as a year's support, Mrs. Cabrel was not barred from raising the award of a year's support to establish that her daughters were not entitled to income from the property. Finding in support of the continued existence of the year's-support award, the trial court did not award damages to the daughters.
In Case No. S11A0212, Mrs. Cabrel appeals the denial of summary judgment on the partitioning issue, contending the court that entered the 2004 partitioning judgment was without jurisdiction to partition the property. 3 In Case No. S11X0214, the daughters take issue with the trial court's denial of their motion for summary judgment, its failure to conduct a hearing on their motion for attorney fees, and its determinations that they were barred from having an accounting and were not entitled to pre-judgment interest.
1. Mrs. Cabrel asserts the trial court erred when it did not set aside the 2004 partitioning judgment. She contends the Superior Court of Spalding County was without jurisdiction in 2004 to enter the partitioning judgment during her lifetime since the property at issue was the subject of the 1964 award of year's support, and only the probate court, the successor of the court that set aside the property as an award of year's support, could sever that joint award.
A motion to set aside a judgment must be brought within three years of the entry of the judgment complained of; a judgment void for lack of personal or subject-matter jurisdiction may be attacked at any time. OCGA § 9–11–60(f). Since Mrs. Cabrel sought to set aside the 2004 partitioning judgment more than three years after its entry, her attack on that judgment is viable only if the court that entered the judgment lacked personal or subject-matter jurisdiction. See Hook v. Bergen, 286 Ga.App. 258(2), 649 S.E.2d 313 (2007). The Superior Court of Spalding County had subject-matter jurisdiction to enter the partitioning judgment since the land sought to be partitioned was partially located in Spalding County and OCGA § 44–6–160, the statute under which the partitioning petition was filed, requires a partitioning petition to be filed in the superior court of the county in which the land is located. That court had personal jurisdiction of Mrs. Cabrel since, under the partitioning statutes, the notice of intent to seek partitioning is the only process necessary to bring a defendant into court to meet the application for partitioning. Shields v. Gish, 280 Ga. 556(3), 629 S.E.2d 244 (2006).4
Since the motion to set aside was filed more than three years after the entry of the judgment of partition and that judgment was made by a court with jurisdiction, the trial court did not err when it denied Mrs. Cabrel's motion to set aside the judgment of partition. The judgment appealed in Case No. S11A0212 is affirmed.
2. In their cross-appeal, the daughters, who hold fee-simple title to 189 acres of the 676 acres as a result of the 2004 judgment of partition, contend the trial court erred when it awarded them no damages on their claim to a share of the income generated by the year's-support property from 1964–1997. The daughters maintain they are entitled to an accounting in light of their status as co-tenants with their mother as a result of the 1964 joint award of year's support. In order to address the issues presented by the cross-appeal, a brief overview of the law of year's support is warranted.
When an individual dies testate or intestate and is survived by a spouse and/or minor children, the survivors are entitled, upon application to the probate court having jurisdiction over the decedent's estate, to an allowance out of the estate called a year's support. OCGA §§ 53–3–1(c); 53–3–5(a). See also Radford, 1 Ga. Wills & Administration in Georgia § 10:1. It is “[a]mong the necessary expenses of administration and to be preferred before all other debts....” OCGA § 53–3–1(b). See OCGA § 53–7–40 ( ). The property set aside is intended for the joint support and maintenance of the surviving spouse and the minor children. Tribble v. Knight, 238 Ga. 84, 86, 231 S.E.2d 68 (1976). The year's support award
... [meaning] that the share of each is thrown into [a] hotchpot, so to speak, and the whole, both as to corpus and income, is charged with the support of each of the beneficiaries so long as they occupy that relationship....
Walden v. Walden, 191 Ga. 182, 189, 12 S.E.2d 345 (1940), quoting Goss v. Harris, 117 Ga. 345, 347, 43 S.E. 734 (1903). Upon marriage or attainment of majority, each minor child loses the right to receive support generated by the property set apart, but owns an undivided interest in the set-apart property that is not consumed in the support and maintenance of the surviving spouse and the remaining minor children. Tribble v. Knight, supra, 238 Ga. at 86, 231 S.E.2d 68.
Property set apart for the joint support and maintenance of the surviving spouse and minor children “continues after the expiration of the year, and thereafter so long as it lasts to be subject to the support of the [surviving spouse] during her [or his] life and the children[,] until they are married or reach majority.” Walden v. Walden, supra, 191 Ga. at 184, 12 S.E.2d 345. The allowance given in response to a year's support application may be in the form of real property from the estate of the deceased spouse/parent ( Whitt v. Ketchem, 84 Ga. 128, 10 S.E. 503 (1889)), and property awarded jointly to the surviving spouse and minor children Sudderth v. Bailey, 239 Ga. 385, 236 S.E.2d 823 (1977) quoting 29 EGL, Year's Support, § 18 (1975). See also Tribble v. Knight, supra, 238 Ga. at 86, 231 S.E.2d 68. See also Walden v. Walden, supra, 191 Ga. at 188–189, 12 S.E.2d 345 (...
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