Skipper v. Paul
Decision Date | 02 July 2020 |
Docket Number | A20A0521 |
Citation | 846 S.E.2d 444,356 Ga.App. 281 |
Parties | SKIPPER et al. v. PAUL. |
Court | Georgia Court of Appeals |
Edenfield Cox & Bruce, Susan W. Cox, Marcol D. Harvey; Jones Osteen & Jones, Richard E. Braun, Jr., for appellants.
Hester Outman, Jerrold W. Hester, James B. Outman, for appellee.
This appeal challenges a trial court order granting a motion to set aside a final adoption decree on the basis of purported nonamendable defects appearing on the face of the record and pleadings. But because the defects were amendable, rather than nonamendable, the trial court abused its discretion in setting aside the final judgment. So we reverse.
Jennifer Paul and John Brannen are the biological parents of a minor child. On March 8, 2018, two months prior to the child's birth, Brannen executed a surrender of parental rights and release for adoption, along with an acknowledgment of the surrender. The child was born on May 7, 2018, and the next day, Paul executed a surrender of parental rights and an acknowledgment of the surrender in favor of prospective adoptive parents Alan Skipper and Ralph Cowart, Jr., who are not related to the child. Paul also entered into a custody agreement with Skipper and Cowart, relinquishing custody of the child to them until the adoption was completed. On May 9, 2018, the trial court accepted the custody agreement and awarded sole legal and physical custody of the child to Skipper and Cowart until completion of the adoption.
Skipper and Cowart filed a verified petition for adoption of the child pursuant to OCGA § 19-8-5, which establishes the procedures for adoption by a third party who is not a stepparent or relative of the child. On May 22, 2018, after a hearing, the trial court entered a decree of adoption, finding that the biological parents had surrendered their parental rights and had not withdrawn the surrenders within the ten days allowed by law; terminating their parental rights; finding that adoption is in the best interests of the child; and making final the adoption of the child by the petitioners.
Five months later, on October 25, 2018, Paul filed a motion to set aside the final adoption decree based on alleged fraud and on purported nonamendable defects appearing on the face of the pleadings. After a three-day hearing, which included the introduction of testimony and documents regarding matters outside the pleadings, the trial court entered an order denying the motion to set aside based on the allegation of fraud, but granting the motion based on the court's findings of nonamendable defects on the face of the record and pleadings. Specifically, the court found nonamendable defects in that the two forms executed by Brannen surrendering his parental rights were not supported by an affidavit from Paul; in that the two forms executed by Paul surrendering her parental rights did not conform with certain statutory requirements; and in that Skipper and Cowart's attorneys failed to file several statutory forms and documents with the court. Skipper and Cowart appeal from the order setting aside the final adoption decree.
The appellants assert that the trial court erred in finding that the defects in the adoption documents, which did not affect the rights of Paul or the merits of the adoption petition, authorized the setting aside of the final decree of adoption. We agree.
OCGA § 9-11-60 (d) (3) provides that a motion to set aside a judgment may be brought based upon In order to set aside a judgment under this Code section, "the nonamendable defect must be one which shows that no claim exists[.]" Barnes v. Williams , 265 Ga. 834, 835 (1), 462 S.E.2d 612 (1995). Accord Oxmoor Portfolio v. Flooring &Tile Superstore of Conyers , 320 Ga. App. 640, 644 (2), 740 S.E.2d 363 (2013) () (citations and punctuation omitted). So Horizon Credit Corp. v. Lanier Bank & Trust Co. , 220 Ga. App. 362 (1), 469 S.E.2d 452 (1996) (citations omitted; emphasis in original). See Hardeman v. Roberts , 214 Ga. App. 484, 486, 448 S.E.2d 254 (1994) (special concurrence) ( ). Norton Realty & Loan Co. v. Bd. of Educ. of Hall County , 129 Ga. App. 668, 674 (4), 200 S.E.2d 461 (1973) (citations and punctuation omitted).
Consequently, nonamendable defects that have been recognized as showing no claim in fact existed and as authorizing the setting aside of judgments include the entry of a default judgment for failure to answer an amended complaint where no such answer was required, Shields v. Gish , 280 Ga. 556, 558 (2), 629 S.E.2d 244 (2006) ; the dismissal of a claim with prejudice where such a dismissal could only be without prejudice, Bonner v. Green , 263 Ga. 773, 774, 438 S.E.2d 360 (1994) ; the failure to provide a party with notice of a final hearing, Coker v. Coker , 251 Ga. 542, 543, 307 S.E.2d 921 (1983) ; and the failure to conduct a jury trial where there was no waiver of the right to a jury trial, Barner v. Binkley , 304 Ga. App. 73, 75 (2), 695 S.E.2d 398 (2010).
Conversely, the absence of a judge's required signature on an affidavit for garnishment was held to be an amendable defect that did not justify the grant of a motion to set aside, Horizon Credit Corp. , supra at 362-364 (1), 469 S.E.2d 452. Similarly, the failure to file a required certificate of default was not a nonamendable defect sufficient to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d) (3). Williams v. Contemporary Servs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). See also Oxmoor Portfolio , 320 Ga. App. at 644-645 (2), 740 S.E.2d 363 ( ).
In the instant case, the various defects in the pleadings and record cited by the trial court were not nonamendable defects showing that no claim for third-party adoption in fact existed. See OCGA § 19-8-5 (a) ( ). Rather, they were defects of form that were amendable and could have been cured prior to judgment. See OCGA § 9-12-15 ("A judgment may not be set aside for any defect in the pleadings or the record that is aided by verdict or amendable as a matter of form.".
Id. at 645 (2), 740 S.E.2d 363. Compare Fiffee v. Jiggetts , 353 Ga. App. 730, 736 (2), 839 S.E.2d 224 (2020) ( ). We therefore reverse the trial court's order setting aside the adoption decree.
Judgment reversed.
Because the trial court did not abuse its discretion by setting aside the final judgment of adoption pursuant to OCGA § 9-11-60 (d) based upon its conclusion that the multiple defects appearing on the face of the record and pleadings were nonamendable, I respectfully dissent.
OCGA § 9-11-60 (d) (3) authorizes a trial court to set aside its judgment based upon "[a] nonamendable defect which appears upon the face of the record or pleadings." "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."1
In its order granting the motion to set aside the adoption under that Code section, the trial court identified multiple nonamendable defects on the face of the record and pleadings, including that Paul's surrender of parental rights failed to conform to statutory requirements because: it did not use the statutory language required under OCGA § 19-8-26 (c) for a non-stepparent and non-relative adoption, but instead used the form for a surrender of parental rights to DFCS or a licensed child-placing agency; Paul did not sign it under oath before a notary public, and it was not witnessed by another adult; and it failed to include certain specific information regarding revocation required by OCGA § 19-8-26 (g).2 Pretermitting, however, whether these defects in the pleadings...
To continue reading
Request your trial-
Shannon v. Hatch
...amounts to a nonamendable defect on the record. Bonner v. Green , 263 Ga. 773, 438 S.E.2d 360 (1994) ; Skipper v. Paul , 356 Ga. App. 281, 283 (2), 846 S.E.2d 444 (2020) (physical precedent only). And, pursuant to OCGA § 9-11-41 (b),4 a dismissal for failure to prosecute is not an adjudicat......