Fiffee v. Jiggetts

• Decision Date: 18 February 2020
• Docket Number: A20A0131
• Citation: 839 S.E.2d 224,353 Ga.App. 730
• Parties: FIFFEE v. JIGGETTS.
• Court: Georgia Court of Appeals

353 Ga.App. 730

839 S.E.2d 224

FIFFEE

v.JIGGETTS.

A20A0131

Court of Appeals of Georgia.

February 18, 2020

R. Krannert Riddle, Savannah, for Appellant.

Steven Gary Blackerby, Denise Steiner Esserman, Brunswick, for Appellee.

Barnes, Presiding Judge.

Following the grant of her application for discretionary review, Luerica Fiffee (the "mother") appeals from the trial court’s denial of her motion to vacate a custody modification order granting primary physical custody of the children to Michael Jiggetts (the "father"). According to the mother, the trial court’s custody modification order must be set aside because notice of the hearing conducted on the father’s motion to modify custody was served on her counsel by facsimile, and, as a result, did not satisfy the statutory requirements for service found in OCGA § 9-11-5 (b) and constituted a nonamendable defect on the face of the record. We agree with the mother and therefore reverse.

The record reflects that the parties, who never married, have six minor children. The mother moved to New York with the four youngest children, and the father remained in Georgia with the two oldest children. In August 2018, the trial court granted the parties joint legal custody of the children, awarded the mother primary physical custody of the four youngest children, and awarded the father primary physical custody of the two oldest children (the "Custody Order").¹ The trial court also ordered the father to pay child support.

Less than a month later, on September 7, 2018, the father filed a verified motion to vacate the Custody Order, motion for new trial, and motion to modify custody and child support (the "Motion to Modify Custody"). In connection with his Motion to Modify Custody, the father filed an affidavit asserting that additional people were living in the mother’s apartment in New York and that the living conditions were unsanitary and unsafe such that he should be granted primary physical custody of all six children.

On September 25, 2018, the trial court entered an order scheduling a hearing on the father’s Motion to Modify Custody for seven days later, on October 2, 2018 (the "Scheduling Order"). The bottom of the one-page Scheduling Order contained the notation "cc:" followed by the names of each party’s counsel and a telephone number for each, and it is undisputed that the Scheduling Order was sent to counsel by facsimile.

The hearing on the father’s Motion to Modify Custody was held on October 2, during which neither the mother nor her counsel appeared.² At the conclusion of the hearing, the trial court ruled from the bench that it would vacate the Custody Order and award primary physical custody of all six children to the father, and counsel for the father stated that she would prepare an order to that effect.

Two days later, the mother’s counsel submitted a letter to the trial court asserting that he had not learned of the October 2 hearing until after it occurred. According to counsel, he received all facsimiles transmitted to his office as attachments to emails, and he acknowledged that he received the trial court’s faxed Scheduling Order through his email system. However, counsel stated that he had been out of town from September 25 to October 1, had a backlog of accumulated emails, and did not see the faxed Scheduling Order until after the October 2 hearing. Counsel asserted that notice of the hearing had been insufficient and requested that a date be scheduled for the mother to "make the trip [to Georgia] and be heard" on the father’s Motion to Modify Custody, given that evidence had been presented by the father at the hearing.

The trial court did not schedule an additional hearing in light of counsel’s letter. Rather, on October 15, 2018, the trial court entered an order granting the father’s Motion to Modify Custody, awarding the father primary physical custody of all six children and ordering the mother to pay child support (the "Modification Order"). The trial court recited that the Scheduling Order had been served on the mother’s counsel on September 25, 2018, that a hearing on the father’s motions was conducted on October 2, and that the mother and her counsel failed to appear at the hearing. The trial court also included factual findings based in part on the evidence heard during the October 2 hearing.³

On November 13, 2018, the mother filed a motion to vacate the Modification Order (the "Motion to Vacate"). Among other things, the mother argued that service of the Scheduling Order on her counsel by facsimile was insufficient under OCGA § 9-11-5 (b),⁴ and that, as a result, the Modification Order should be vacated and the mother afforded an opportunity to travel to Georgia and be heard on the custody modification issues raised by the father. The trial court thereafter summarily denied the mother’s Motion to Vacate. The mother then filed an application for discretionary review, which this Court granted, resulting in the present appeal.

1. As an initial matter, the father contends that the mother’s appeal should be dismissed for lack of jurisdiction, but we reject his contention. The denial of a motion to set side a prior order in a child custody proceeding on the ground of inadequate notice of a hearing is subject to appeal by means of an application for discretionary review, as the mother properly pursued in this case. See Voyles v. Voyles , 301 Ga. 44, 47, 799 S.E.2d 160 (2017) ; Landry v. Walsh , 342 Ga. App. 283, 284 (1), n. 1, 801 S.E.2d 553 (2017). And while the father argues that the mother’s motion should be construed as a "discretionary" motion to set aside or for reconsideration, the denial of which is not appealable in its own right,⁵ the mother’s motion instead is properly construed as a motion to set aside the Modification Order pursuant to OCGA § 9-11-60, as discussed infra in Division 2. The trial court’s denial of the mother’s Motion to Vacate thus could be appealed through our discretionary appeal procedures. See Voyles , 301 Ga. at 47, 799 S.E.2d 160 ; Ferguson v. Freeman , 282 Ga. 180, 181 (1), 646 S.E.2d 65 (2007) ; Landry , 342 Ga. App. at 284 (1), n. 1, 801 S.E.2d 553. Accordingly, we have jurisdiction to hear this appeal.

2. The mother contends that service of the trial court’s Scheduling Order on her counsel was defective on the face of the record because service by facsimile did not comply with the service requirements imposed by OCGA § 9-11-5 (b), and that the trial court therefore should have vacated the Modification Order and scheduled a new hearing where the mother could present testimony and evidence in opposition to the father’s Motion to Modify Custody. We agree.

While the mother’s Motion to Vacate did not expressly cite to a particular statute as a basis for vacating the Scheduling Order, her motion was in substance a motion brought pursuant to OCGA § 9-11-60 (d), which authorizes a trial court to set aside its judgment on certain narrow grounds, including "[a] nonamendable defect which appears upon the face of the record or pleadings." OCGA § 9-11-60 (d) (3).

See Hiner Transport v. Jeter , 293 Ga. App. 704, 706, 667 S.E.2d 919 (2008) (construing motion as motion to set aside under OCGA § 9-11-60 (d) (3) based on argument raised therein, although motion did not cite to that statute or use the specific term "nonamendable defect"). See generally Nelson & Hill v. Wood , 245 Ga. App. 60, 64 (2), 537 S.E.2d 670 (2000) ("There is no magic in nomenclature, and we judge pleadings, motions and orders not by their name but by their function and substance, being always mindful to construe such documents in a manner compatible with the best interests of justice."). A trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60 (d) (3) is reviewed for an abuse of discretion. Nadel v. Branch Banking & Trust Co. , 340 Ga. App. 213, 215, 797 S.E.2d 140 (2017).

The trial court abused its discretion in failing to set aside the Modification Order because the lack of proper notice of the hearing held on the father’s Motion to Modify Custody appears on the face of the record. OCGA § 9-11-6 (d) provides in relevant part: "A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court." "When a hearing is held on any motion, OCGA § 9-11-6 (d) requires notice of the hearing to be served on counsel, if for no other reason than to avoid the appearance of ex parte contact." (Citation and punctuation omitted.) Glass v. Glover , 241 Ga. App. 838, 838, 528 S.E.2d 262 (2000).

Service of the notice of a hearing pursuant to OCGA § 9-11-6 (d) is governed by OCGA § 9-11-5 (b). See Cofield v. Halpern Enterprises , 316 Ga. App. 582, 583-584, 730 S.E.2d 63 (2012). OCGA § 9-11-5 (b) provides that "[w]henever under this chapter service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court." Such service "shall be made by delivering a copy to the person to be served or by mailing it to the person to be served at the person’s last known address."⁶ Id. Additionally, where counsel has consented under OCGA § 9-11-5 (f) to being served electronically, OCGA § 9-11-5 (b) provides that electronic service may be made by "transmitting a copy via e-mail in portable document format (PDF) to the person to be served using all e-mail addresses provided pursuant to subsection (f) of this Code section and showing in the subject line of the e-mail message the words ‘STATUTORY ELECTRONIC SERVICE’ in capital letters."

"Compliance with the notice requirement of OCGA § 9-11-5 (b) is mandatory, not discretionary." (Punctuation and footnote omitted.)

Cofield , 316 Ga. App. at 584, 730 S.E.2d 63. "An order that is based on a hearing and entered against a party...