Jordan v. Goff, 62604
| Decision Date | 04 December 1981 |
| Docket Number | No. 62604,62604 |
| Citation | 160 Ga.App. 636,287 S.E.2d 640 |
| Parties | JORDAN v. GOFF. |
| Court | Georgia Court of Appeals |
Leonard H. Conger, Bainbridge, for appellant.
Ben Kirbo, Bainbridge, for appellee.
Appellee commenced this action against appellant, the executor under the will of William Mellette Jordan who died in 1970. It appears that the decedent was the father of two illegitimate children born to appellee. In 1967 appellee and the decedent entered into a written agreement whereby he agreed to pay appellee the sum of $100 per week for the support of these children until they reached the age of majority. In the present case, appellee sought to collect past due child support pursuant to this agreement which had accrued from May 17, 1979 through February 20, 1981. Appellee also sought to recover reasonable attorney's fees based upon the allegation that appellant was stubbornly litigious in failing and refusing to pay the weekly installments as they matured.
Appellant answered the complaint and denied only those allegations characterizing his refusal to pay as stubbornly litigious behavior authorizing the award of attorney's fees. In further response to the complaint, appellant stated that he refused to pay appellee unless ordered to do so by the court, or until appellee acquiesced in his demands that a guardian be appointed to represent the youngest child and that the oldest child, who apparently is over the age of 18, execute a release in favor of appellant in connection with any such payments. Appellant also responded that his refusal to pay until compliance with one of the foregoing conditions was motivated by a desire to protect himself from possible future claims by the children as beneficiaries under the agreement.
The parties entered into a stipulation whereby they agreed to all facts which had previously been set forth in their pre-trial order and agreed that the only issue for resolution was whether appellee was entitled to attorney's fees under Code Ann. § 20-1404 and, if so, the amount. In accordance with the stipulation, this matter was submitted to the trial court, without the intervention of a jury, for resolution. The trial court found that appellant had been stubbornly litigious and caused appellee unnecessary trouble and expense in the matter and entered judgment awarding appellee the sum of $9,200 in principal, $561.95 as interest, plus $500 as attorney's fees and costs of this action. From this judgment, appellant appeals.
1. Appellant contends that the trial court erred rendering the following conclusion of law:
Appellant argues that the two children are third-party beneficiaries under the 1967 agreement between appellee and the decedent and, thus, a guardian should be appointed to represent the minor child and that the child of age should have been made a party to this litigation. Appellant also contends that under Code Ann. § 81A-117 this action should have been commenced in the names of the children because they are the real parties of interest.
We find appellant's contentions meritless. While the children as beneficiaries of the agreement between appellee and the decedent would be authorized to maintain an action against appellant under the agreement (Code Ann. § 3-108), there is no legal requirement that the children be made parties to this action. Code Ann. § 81A-117(a) reads, in pertinent part, as follows: The agreement in the present case being made in the name of appellee for the benefit of the children, appellee was authorized to institute this suit for their benefit and to do so without joining the children as parties.
Moreover, there was no legal requirement that a guardian be appointed to represent the interests of the minor child....
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Ryle v. Sliz
...of stubborn litigiousness, have applied it nonetheless. See, e.g., Woodson v. Burton, 241 Ga. 130(4), 243 S.E.2d 885; Jordan v. Goff, 160 Ga.App. 636(2), 287 S.E.2d 640; Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 191 S.E.2d 317. In each of the cited cases, the court looked at the history......
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Department of Human Resources v. Ammons
...circumstances, there is considerable doubt whether OCGA § 15-11-55 would have any applicability whatsoever. Cf. Jordan v. Goff, 160 Ga.App. 636(1), 287 S.E.2d 640 (1981) (no appointment of guardian necessary in non-termination case where the child is represented by his natural guardian). Co......