Collins v. Collins

• Decision Date: 14 November 1978
• Docket Number: No. 56236,56236
• Citation: 250 S.E.2d 870,148 Ga.App. 103
• Parties: COLLINS v. COLLINS.
• Court: Georgia Court of Appeals

Page 870

250 S.E.2d 870

148 Ga.App. 103

COLLINS v. COLLINS.

No. 56236.

Court of Appeals of Georgia.

Argued Sept. 18, 1978.

Decided Nov. 14, 1978.

William C. Thompson, Atlanta, Kenneth A. Hindman, Savannah, Steven Gottlieb, Myron N. Kramer, Atlanta, for appellant.

David S. Marotte, Marietta, for appellee.

SHULMAN, Judge.

Appellant is the mother of an illegitimate child, Michael R. Collins, in whose name the original suit in this case was filed. Since Michael's birth, he and his mother have lived with appellant's mother, Dorothy Sanders. Mrs. Sanders applied for public assistance benefits for Michael under the Aid to Families with Dependent Children program. Benefits were granted and payments of $45 per month were made until a total of $225 had been disbursed for Michael's support.

A suit under Code Ann. Ch. 99-9B, the Child Support Recovery Act, was filed against appellant by the Department of Human Resources to recover the amount of the payments made for Michael's welfare. Service was had on appellant by having her execute an acknowledgment of service. The printed form by which appellant acknowledged service also contained a provision by which appellant consented to the judgment sought against her. Based on appellant's execution of the consent form, a judgment was entered against her requiring periodic payments until the total amount sought was paid. At the time suit was brought and appellant signed the acknowledgment/consent form, appellant was 17 years old. It is stipulated that no service was made on a parent or guardian of appellant.

Appellant subsequently failed to make the payments required by the consent judgment against her. The District Attorney of Cobb County then proceeded against appellant seeking a citation for contempt. Appellant made several payments which she alleges were made to avoid being held in contempt, and then filed a motion to set aside the judgment. This appeal is from the denial of the motion to set aside the judgment. We find the judgment to have been fatally defective and reverse the denial of appellant's motion.

1. "Code Ann. § 81A-104(d)(3) provides that if a suit is against a minor, service shall be made upon '. . . such minor, personally, And also to his father or his mother or his guardian or his duly-appointed guardian ad litem . . .' (Emphasis supplied.) The Supreme Court 'has strictly construed the provisions of this Code section, and rightfully so, since notice is the very bedrock of due process.' (Cit.) Strict compliance with this statutory requisite is therefore essential in order for service of process to be properly perfected upon an infant. Accordingly, in order to perfect service upon a minor in this state, both the minor And his father or mother or guardian or guardian ad litem must be served." Lanier v. Foster, 133 Ga.App. 149, 152, 210 S.E.2d 326.

"Section 4 of the Civil Practice Act as amended (Code Ann. § 81A-104) provides explicit rules for service of process. In the absence of service in conformity with such rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void." DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 626, 193 S.E.2d 852, 853.

Since the service in this case was made on appellant alone, it was fatally defective. Therefore, as explained in DeJarnette Supply Co., supra, the judgment against appellant is absolutely void unless there occurred some waiver of the defective service.

2. Appellee claims there was such a waiver as would save the consent judgment against appellant. We find appellee's arguments on that issue unconvincing.

A. We reject the notion that a minor can waive the multiple service requirements of Code Ann. § 81A-104(d)(3). Counsel has cited and we have found no cases reported in Georgia on this issue, but we hold that to permit such a waiver would be utterly inconsistent with the obvious intent of the statute to protect minors.

B. Appellee also argues that the consent judgment was a contract which was ratified by appellant's voluntary payments on the judgment made after reaching her majority. This argument is based on two premises: first, that a consent judgment, though not valid for some reason as a judgment, may be a binding agreement between the parties thereto (Driver v. Wood, 114 Ga. 296, 40 S.E. 257); second, that a contract made by one during minority may be ratified upon one's...