Shultz v. Walker
Decision Date | 03 November 2021 |
Docket Number | A21A1034 |
Citation | 361 Ga.App. 819,865 S.E.2d 637 |
Parties | SHULTZ v. WALKER. |
Court | Georgia Court of Appeals |
Jane Maria McCoy, for Appellant.
Betty DeAnn Wheeler, for Appellee.
In July 2020, a trial court denied Billy Wayne Shultz III's petition to legitimate his minor child. Shultz then moved to set aside the judgment based on the fact that Shultz had already administratively legitimated the child in 2015. The trial court denied Shultz's motion to set aside the judgment, and Shultz appeals. For the reasons set forth below, we vacate the trial court's order, and remand for further proceedings.
The uncontested facts in this case show that Shultz and Maci Brooke Walker are the parents of a minor child, B. W. S., born in November 2015. The parties were never married, but were in a relationship at the time of B. W. S.’s birth. A few days after the birth, Shultz and Walker executed an acknowledgment of paternity and administrative legitimation of B. W. S.1
Shultz began to exhibit symptoms of mental illness, and the two ended their relationship. The two maintained a co-parenting relationship until some time in 2017, when Walker cut off contact between Shultz and B. W. S.
In February 2019, Shultz, through counsel, filed a petition to legitimate B. W. S. During these proceedings, neither party informed the court about the previous administrative legitimation. After a hearing, a transcript of which does not appear in the appellate record, in July 2020, the trial court denied Shultz's petition, finding that he had abandoned his opportunity interest to develop his relationship with the child.
In October 2020, Shultz filed a motion to set aside the judgment denying his petition for legitimation, arguing that a nonamendable defect appeared on the face of the record. Shultz claimed that no legitimation petition was necessary due to Shultz's previous administrative legitimation of B. W. S. Shultz amended his motion to set aside to also argue that fraud, accident, or mistake rendered the judgment void. Walker contested the motion to set aside, and the court held a hearing. The court subsequently denied Shultz's motion, relying on Allifi v. Raider , 323 Ga. App. 510, 746 S.E.2d 763 (2013) (physical precedent only) to find that there was no legal basis to set aside the judgment. The court noted, however, that it did not have the power to invalidate or vacate the prior administrative legitimation. Shultz filed an application for discretionary appeal, which was granted. Case No. A21D0189 (decided Feb. 5, 2021). The instant appeal followed.
Shultz's arguments on appeal concern the denial of his legitimation petition. However, his appeal is from the denial of his motion to set aside the judgment and our review necessarily is limited to that issue. Accordingly, we are bound by the applicable standard of review, which is abuse of discretion. Moore v. Davidson , 292 Ga. App. 57, 58, 663 S.E.2d 766 (2008) () (citation omitted).
Pursuant to OCGA § 9-11-60 (d), a trial court may set aside its judgment under limited circumstances. The two circumstances raised by Shultz in the lower court were:
OCGA § 9-11-60 (d) (2)-(3).
Our Court considered a case with a similar factual background as the instant appeal in Allifi , 323 Ga. App. at 510, 746 S.E.2d 763. In Allifi , the mother (Allifi) and biological father (Raider) of a child signed a paternity acknowledgment shortly after the child's birth. 323 Ga. App. at 510, 746 S.E.2d 763. Allifi and Raider eventually split up, and Raider filed a petition to legitimate the child. Id. at 510-511, 746 S.E.2d 763. Neither party informed the superior court about the previous administrative legitimation, and the superior court denied the petition. Id. at 511, 513 (1), 746 S.E.2d 763. Raider then filed a motion to set aside the judgment, which the superior court granted based on 9-11-60 (d) (2), finding that its judgment was predicated on a mistake of fact. Id. at 511, 746 S.E.2d 763.
Upon appeal, we noted in our opinion the difficulty our Court has had in interpreting the statutes allowing for administrative legitimation without oversight by the courts. Id. at 513 (1), 746 S.E.2d 763 () (citations omitted).2 However, we found that Raider had not met his burden to show a legal basis to set aside the judgment, as the mistake of fact was mixed with his own failure to inform the court of the previous administrative legitimation. Id. Therefore, OCGA § 9-11-60 (d) (2) was inapplicable, as it requires the mistake of fact to be "unmixed with the negligence or fault of the movant." Accordingly, we reversed the trial court's setting aside of its judgment, and remanded for further proceedings. Allifi , 323 Ga. App. at 513 (1), 746 S.E.2d 763.
In the instant case, we find Allifi to be persuasive on the issue of OCGA § 9-11-60 (d) (2), because Shultz failed to raise the issues of the existence, validity, and effect of the underlying administrative legitimation for the trial court to consider before rendering its judgment. And it follows that the mistake of fact on which Shultz attempts to rely is not unmixed with his own negligence or fault in failing to inform the superior court of the previous administrative legitimation. See Aycock v. Hughes , 189 Ga. App. 838, 838 (1), 377 S.E.2d 689 (1989) ( )(punctuation omitted). And although Allifi was not binding precedent from this Court (because of Judge Ray's concurrence in judgment only), it was persuasive authority for the superior court, and we do not find that the court abused its discretion in denying Shultz's motion to set aside the judgment on this ground.
That leaves Shultz with the argument that the previous administrative legitimation constituted a nonamendable defect which appeared upon the face of the record or pleadings. OCGA § 9-11-60 (d) (3). The trial court, however, did not reach this issue in the first instance. In finding no legal basis to set aside the judgment, the trial court relied exclusively on Allifi , which addressed only whether the judgment in that case could be set aside...
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