Alan Wesley Skipper v. Jennifer Paul

Opinion

THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

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July 2, 2020

In the Court of Appeals of Georgia A20A0521. SKIPPER et al. v. PAUL.

MCFADDEN, Chief Judge.

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.

1. Facts and procedural posture.

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surrendered their parental rights and had not withdrawn the surrenders within the ten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

2 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.

2. OCGA § 9-11-60 (d) (3).

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 “[a] nonamendable defect which appears upon the face of the

record or pleadings. Under this paragraph, it is not sufficient that the complaint or

other pleading fails to state a claim upon which relief can be granted, but the

3 pleadings must affirmatively show no claim in fact existed.” 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 SE2d

612) (1995). Accord Oxmoor Portfolio v. Flooring & Tile Superstore of Conyers, 320

Ga. App. 640, 644 (2) (740 SE2d 363) (2013) (“Under OCGA § 9-11-60 (d) (3), the

pleadings must affirmatively show no claim in fact existed.”) (citations and

punctuation omitted). So “[w]here there is a non-amendable defect appearing on the

face of the record or pleadings which is not cured by verdict or judgment and the

pleadings affirmatively show that no legal claim in fact existed, the judgment is void.

The presence of an amendable defect on the face of the record, however, does not

void the action.” Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362

(1) (469 SE2d 452) (1996) (citations omitted; emphasis in original). See Hardeman

v. Roberts, 214 Ga. App. 484, 486 (448 SE2d 254) (1994) (special concurrence)

(citing Mercer v. Nowell, 179 Ga. 37, 40 (175 SE 12) (1934) for proposition that “[a]

defect which would be amendable before verdict would be cured by the judgment in

the case.”) “When the irregularities in the record can be corrected by amendment, the

judgment will not be arrested or set aside. Defects in matters of form can be

4 amended.” Norton Realty & Loan Co. v. Bd. of Educ. of Hall County, 129 Ga. App.

668, 674 (4) (200 SE2d 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 SE2d 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 SE2d 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

SE2d 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). 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 SE2d 460)

5 (2013). See also Oxmoor Portfolio, supra at 644-645 (2) (recognizing that an answer

not bearing necessary signature of an attorney was an amendable defect that could

have been cured before judgment).

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) (child may be adopted by a party

who is not a relative of the child if each living parent of such child voluntarily and

in writing surrendered all of his or her parental rights). 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.”)

“We review a trial court’s ruling on a motion to set aside a judgment under

OCGA § 9-11-60 (d) for abuse of discretion.” Oxmoor Portfolio, supra at 644 (2)

(citation and punctuation omitted). In this case,

the pleadings do not affirmatively show that no claim [for adoption] in fact existed and that there was no basis upon which to enter [the adoption decree]. Because [the trial court’s findings] failed to establish the presence of a nonamendable defect on the face of the record or pleadings, the court abused its discretion by granting [the] motion to set aside the [adoption decree].

6 Williams, supra at 302. Compare Fiffee v. Jiggetts, 353 Ga. App. 730, 736 (2) (839

SE2d 224) (2020) (failure to provide proper notice of a custody modification hearing

constituted nonamendable defect that can justify setting aside judgment). We

therefore reverse the trial court’s order setting aside the adoption decree.

Judgment reversed. Hodges, J., concurs in judgment only. Doyle, P. J.,

dissents.

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2.

A20A0521. SKIPPER et al. v. PAUL.

Doyle, P. J., dissenting.

Unlike the cases on which the majority relies, this is not a timely appeal from

a ruling in an adoption proceeding. So it was not enough for Paul to show error. In

order to prevail, she must show a nonamendable defect. Because she has not, I

respectfully dissent.

The thirty-day deadline to file such an appeal from the adoption decree had

expired before Paul began trying to unwind the adoption. See OCGA § 5-6-38 (a). So

our public policy that there must eventually be an end to litigation weighs more heavily in this case than in the cases on which she relies, and she is limited to the

narrow remedies afforded by a motion to set aside under OCGA § 9-11-60 (d).

She invokes OCGA § 9-11-60 (d) (3), which provides that a motion to set aside

a judgment may be brought based upon “[a] nonamendable defect which appears

upon the face of the record or pleadings. Under this paragraph, it is not sufficient that

the complaint or other pleading fails to state a claim upon which relief can be granted,

but the pleadings must affirmatively show no claim in fact existed.” 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

SE2d 612) (1995). “Where there is a non-amendable defect appearing on the face of

the record or pleadings which is not cured by verdict or judgment and the pleadings

affirmatively show that no legal claim in fact existed, the judgment is void. The

presence of an amendable defect on the face of the record, however, does not void the

action.” Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362 (1) (469

SE2d 452) (1996) (citations omitted; emphasis in original). See Hardeman v. Roberts,

214 Ga. App. 484, 486 (448 SE2d 254) (1994) (special concurrence) (citing Mercer

v. Nowell, 179 Ga. 37, 40 (175 SE 12) (1934), for the proposition that “[a] defect

which would be amendable before verdict would be cured by the judgment in the

2 case.”) “When the irregularities in the record can be corrected by amendment, the

judgment will not be arrested or set aside. Defects in matters of form can be

amended.” Norton Realty & Loan Co. v. Bd. of Educ. of Hall County, 129 Ga. App.

668, 674 (4) (200 SE2d 461) (1973) (citations and punctuation omitted).

Consequently, nonamendable defects that have been recognized 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 SE2d 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 SE2d 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 SE2d 398) (2010).

Conversely, the absence of a required judge’s 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). 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 (3). Williams v. Contemporary Servs. Corp., 325 Ga. App. 299, 301 ( 750 SE2d 460)

(2013). See also Oxmoor Portfolio v. Flooring & Tile Superstore of Conyers, 320

Ga. App. 640, 644-645 (2) (740 SE2d 363) (2013) (recognizing that an answer not

signed by an attorney was an amendable defect that could have been cured before

judgment).

In this case, the trial court found nonamendable defects in that two forms

executed by the biological father surrendering his parental rights were not supported

by an affidavit from the appellee mother; in that two forms executed by the appellee

mother surrendering her parental rights did not substantially conform with statutory

requirements; and in that the appellants’ attorneys failed to file certain statutory forms

and documents with the court. But these defects were merely 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.”)

Thus, the pleadings do not affirmatively show that no claim [for adoption] in fact existed and that there was no basis upon which to enter [the adoption decree]. Because [the movant] failed to establish the presence of a nonamendable defect on the face of the record or pleadings, the court abused its discretion by granting [the] motion to set aside the [adoption decree].

4 Williams, supra at 302.