Alan Wesley Skipper v. Jennifer Paul

• Court: Court of Appeals of Georgia
• Decided: July 2, 2020
• Docket: A20A0521
• Status: Published

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surrendered their parental rights and had not withdrawn the surrenders within the ten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, Presiding Judge.

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

1 (Punctuation omitted.) Dept. of Transp. v. Szenczi, ___ Ga. App. ___, ___ (841 SE2d 228) (2020), quoting Nadel v. Branch Banking &c., 340 Ga. App. 213, 215 (797 SE2d 140) (2017). See also AA-Professional Bail Bonding v. Ga., 265 Ga. App. 42 (592 SE2d 866) (2004) (holding that a trial court’s decision to set aside a judgment based on a nonamendable defect appearing on the face of the record or pleadings pursuant to OCGA § 9-11-60 (d) (3) “‘will not be reversed absent a showing of manifest abuse of discretion’”). 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 constitute nonamendable defects,3

the trial court also based its order setting aside the adoption on multiple other

grounds.

First, although Brannen (the biological father) executed a pre-birth surrender

of parental rights pursuant to OCGA § 19-8-5 (e) (3), the statute requires that Paul,

2 The pleadings were prepared by the appellants’ attorney. Paul was not represented by counsel when she signed the surrender and other pleadings. 3 See Tyson v. Dept. of Human Resources, 165 Ga. App. 414, 414-415 (301 SE2d 485) (1983) (affirming the dismissal of an adoption petition because the use of a form for the surrender of a child to relatives instead of a form for surrender to non-relative third parties “was fatally defective”).

2 as the biological mother, is required to execute “a sworn statement” identifying him

as an alleged biological father of her unborn child pursuant to OCGA § 19-8-26

before the father executes his surrender.4 It is undisputed that the record does not

contain such a sworn statement by Paul, and the appellants’ counsel conceded at the

hearing on the motion to set aside that no such statement existed if it did not appear

in the record.

Next, the appellants’ counsel failed to file the attorney’s affidavit required by

OCGA § 19-8-13 (d) detailing all sums paid or promised to them for all services

rendered in connection with the adoption, and the accounting the Petitioners filed

under OCGA § 19-8-13 (c) was incomplete. As a result, the court could not make a

proper determination as to whether OCGA § 19-8-24 had been violated with regard

to inducement of the placement of the child by Paul.

Finally, there was no agent or investigator appointed “to verify the allegations

in the petition for adoption, to make a complete and thorough investigation of the

entire matter, including any specific issue the court requests to be investigated, and

to report its findings and recommendations in writing to the court” as required by

4 See OCGA § 19-8-5 (e) (3) (E).

3 OCGA § 19-8-16 (a).5 As a result, the trial court failed to “give consideration to the

investigation report to the court provided for in Code Section 19-8-16 and the

recommendations contained in such report” at the adoption hearing as required by

OCGA § 19-8-18 (a) (1). Such consideration is “mandated.”6

As this Court has explained, “[t]he requirements of the adoption statute are

mandatory and should be strictly construed and meticulously followed so that beyond

all peradventure the adoption will not later be subject to attack.”7 Although “‘the

executed forms may vary slightly from those presented in OCGA § 19-8-26, [they

must] substantially conform to the statutory text.’”8

5 Although OCGA § 19-8-16 (b) and (c) provide exceptions to the rule requiring the appointment of an independent agent, they are not applicable here because the biological parents surrendered (or attempted to surrender) their parental rights to the child in favor of non-relative adults. 6 Johnson v. Hauck, 344 Ga. App. 848, 855 (3) (a) (812 SE2d 303) (2018), citing Cafagno v. Hagan, 213 Ga. App. 631, 632-633 (1) (a) (445 SE2d 380) (1994). 7 (Citations and punctuation omitted.) In re Stroh, 240 Ga. App. 835, 840 (1) (b) (i) (523 SE2d 887) (1999). See also Hafer v. Lowry, 320 Ga. App. 76, 78 (739 SE2d 84) (2013) (“It is well settled that adoption laws must be strictly construed in favor of natural parents.”); McKinney v. Jennings, 246 Ga. App. 862, 863 (2) (542 SE2d 580) (2000) (same). 8 Stroh, 240 Ga. App. at 840 (1) (b) (i).

4 Here, the trial court set aside the adoption based in part upon: the trial court’s

failure to appoint an independent agent and consider the agent’s report, to require and

consider an attorney’s affidavit pursuant to OCGA § 19-8-13 (d), and to require that

the biological father’s surrender be supported by a previously executed affidavit from

Paul pursuant to OCGA § 19-8-26. These are not instances of the parties’ or the

court’s failure to use the proper forms, nor are they instances in which the parties

failed to file forms that actually existed. Instead, the trial court granted the adoption

without complying with mandatory requirements set forth in the Adoption Code.

Given the nature of these errors and omissions and the standard of review, I cannot

conclude that trial court abused its discretion by finding that they were nonamendable

defects under OCGA § 9-11-60 (d) (3).9

9 See Murphy v. Murphy, 263 Ga. 280, 283 (430 SE2d 749) (1993) (holding that because “[t]he appellant’s failure to file a petition for divorce, and concomitant failure to notify appellee that a divorce was being sought, constituted a non-amendable defect appearing on the face of the pleadings[, t]he resulting judgment of divorce was subject to attack [under OCGA § 9-11-60 (d)] . . . within the three-year period of limitation provided by OCGA § 9-11-60 (f)”) (footnote omitted); Brown v. C & S Nat. Bank, 245 Ga. 515, 518-519 (265 SE2d 791) (1980) (affirming an order to set aside a judgment because the lack of notice of the hearing “constituted a nonamendable defect on the face of the record”); Fiffee v. Jiggetts, 353 Ga. App. 730, 735-736 (2) (839 SE2d 224) (2020) (reversing the denial of a motion to set aside a custody modification order because the failure to provide proper notice of the modification hearing constituted a nonamendable defect).

5 As this Court has stated, “a judgment having such a final, ultimate[,] and

significant result as that of severing the rights of a parent to a child must conclusively

show compliance with the statutory criteria prescribed as a condition precedent for

such termination.”10 Accordingly, I would affirm the trial court’s order setting aside

the adoption pursuant to OCGA § 9-11-60 (d) (3).

10 (Punctuation omitted.) Johnson, 344 Ga. App. at 853 (1), quoting Dell v. Dell, 324 Ga. App. 297, 301 (1) (748 SE2d 703) (2013).