Whitlock v. Barrett

• Decision Date: 04 March 1981
• Docket Number: No. 60733,60733
• Citation: 158 Ga.App. 100,279 S.E.2d 244
• Court: Georgia Court of Appeals
• Parties: WHITLOCK v. BARRETT.

Page 244

279 S.E.2d 244

158 Ga.App. 100

WHITLOCK v. BARRETT.

No. 60733.

Court of Appeals of Georgia.

March 4, 1981.

Rehearing Denied March 23, 1981.

Certiorari Denied May 6, 1981.

Willie J. Woodruff, Jr., Kendric E. Smith, Athens, for appellant.

John A. Kupris, C. P. Brackett, Athens, for appellee.

CARLEY, Judge.

Appellant is the natural mother of an illegitimate child. Appellee is the mother of the putative father of the child. Appellee filed a petition for letters of guardianship of the person and property of the child in the Probate Court of Clarke County. Appellant was served with a copy of the petition in Madison County, the county of her domicile. Appellant filed an answer to the petition, stating that she was a resident and domiciliary of Madison County, that as a mother who had not relinquished her rights to her child she was the child's natural guardian and that the child was, therefore, a resident and domiciliary of Madison County. Code Ann. § 79-404. Appellant moved to dismiss the petition on the grounds that the Probate Court of Clarke County lacked personal jurisdiction over both her and her child and that the court lacked subject matter jurisdiction "since a judgment in favor of (appellee) would result in a termination of parental rights." While the Probate Court apparently made no ruling on the motion to dismiss the petition, it entered an order merely reciting that the child "is a resident of (Clarke) County, under the age of fourteen years; that (appellee) is a resident of this State, and no objection having been filed, It is ordered that (appellee) be, and she is hereby appointed Guardian of the person and property of said (child) ..."

Appellant appealed this order of the Probate Court to the Superior Court of Clarke County. Thereafter, appellant again moved to dismiss appellee's petition for lack of personal and subject matter jurisdiction. See generally Smith v. Atlanta Mut. Ins. Co., 42 Ga.App. 254(2), 155 S.E. 535 (1930). Again there was no formal ruling on appellant's motion but, rather, the judge of the superior court apparently determined to resolve the issues raised by the motion to dismiss by requiring the jury to return a special verdict answering the following questions:

1. Has appellant failed to contribute to the support of the child and has she acquiesced for a long period of time in appellee's control of the child?

2. Has appellant entered into a voluntary contract with the appellee releasing to the appellee her parental rights to the child?

3. Is the appellant physically, mentally or morally unfit to have custody of the child?

4. Is the appellee physically, mentally or morally unfit to have custody of the child?

The superior court judge decided beforehand that if the jury answered "no" to Questions 1, 2 and 3, appellant would be appointed guardian but if the jury answered "yes" to either Question 1, 2 or 3 and answered "no" to Question 4, appellee would be appointed guardian.

The appeal then came on for trial in the superior court and was submitted to the jury under the special verdict. The jury answered "yes" to Questions 1 and 3 and "no" to Questions 2 and 4. The judge then entered judgment on this verdict and, as had been the predetermined result of such a verdict, appointed appellee the guardian of the child.

Appellant appeals from this order, enumerating as error the failure to dismiss the proceeding for lack of subject matter jurisdiction, lack of personal jurisdiction and improper venue.

We believe the superior court erred in failing to grant the motion to dismiss in the instant case. "There can not be two guardianships at the same time as to either the person or the property of the infant, though one person may be guardian of its person and another may be guardian of its property. (Cit.) The ordinary is without power to appoint a guardian for the person or for the property of a child unless the child has no guardian as to the one or the other of these things for which the guardianship is asked.... (A) 'guardian of the person' is defined to be 'one who has been lawfully invested with the care of the person of an infant whose (natural guardian) is dead, and is considered as standing in the place of the (natural guardian).' (Cits.) ...' ... Natural guardianship, pure and simple, is of the person only, and is incident to the relation of parent ...' " Jordan v. Smith, 5 Ga.App. 559, 560-561, 63 S.E. 595 (1908). The mother of an illegitimate child is its natural guardian, Alfred v. McKay, 36 Ga. 440 (1867), with the prima facie right to custody. Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150 (1942). See also Code Ann. § 74-203. Thus, we find that "(t)he ordinary has nothing to do with constituting the mother natural guardian ... The mother (is natural guardian) by operation of law, and without any action whatever by the ordinary no appointment, no letters of guardianship are contemplated... Nothing is said of any authority (of the ordinary) to displace the parent as guardian of the person. For a minor having no guardian, the ordinary may appoint a guardian of person and property, or of either; but if the minor has a natural guardian, it certainly cannot be said in a broad sense that he or she has no guardian. In such case the range of appointment is limited to guardianship of the property, for it is only as to property that there is no guardian." Beard v. Dean, 64 Ga. 258, 260-261 (1879). Code Ann. §§ 74-108, 109 and 110 "provide for the removal of a (parent) as natural guardian of his child's person, in certain cases. To such a proceeding the (parent) must be a party, and he must be served with notice, otherwise the proceeding is void as depriving him of his parental control without due process of law. (Cit.) After he has been removed and there is no longer a natural guardian, the ordinary's jurisdiction to appoint arises. (Cit.)" Jordan v. Smith, 5 Ga.App. 559, 561, 63 S.E. 595, supra. The probate court has no authority to appoint another as guardian of the person of a child with a living natural guardian unless the loss of that status "has been ascertained and declared in some regular proceeding authorized by law, after due notice (is given). (Cit.)" Robison v. Robison, 29 Ga.App. 521, 116 S.E. 19 (1922).

The application of the above stated rules to the instant case demonstrates that it was error to fail to grant appellant's motion to dismiss. When appellant showed that she was the child's mother, that her parental rights had not been relinquished or forfeited "in some regular proceeding authorized by law," and that she was, therefore, the natural guardian of the child, the probate court was without jurisdiction to appoint someone else the guardian of the child's person. Jordan v. Smith, 5 Ga.App. 559, 63 S.E. 595, supra; Robison, 29 Ga.App. 521, 116 S.E. 19, supra. Furthermore, even if a probate court has subject matter jurisdiction over the petition of guardianship in the instant case, only the Probate Court of Madison County, not Clarke County, would have jurisdiction to hear the matter. Mathis v. Sapp, 232 Ga. 620, 208 S.E.2d 446 (1974).

The superior court, apparently aware of the jurisdictional problems that the probate court could not appoint a guardian unless appellant had lost her parental right to custody of the child and that if custody had not been lost, venue would not be proper in Clarke...