dissenting.
I concur in the majority’s ruling in Division 1 that Ms. Butler was not a privy of DHR and, thus, that res judicata does not preclude an action for fraud and deceit. However, I do not agree that this lawsuit is an available means for her to seek damages arising out of Turner’s alleged misrepresentations. Therefore, I dissent to Division 2 and to the reversal of the judgment of the Court of Appeals.
Ms. Butler alleges that Turner fraudulently misrepresented his income in DHR’s previous child support action, so that the child support judgment entered against him was much less than his actual legal obligation. However, the proper remedy for claims of this type, such as fraud and perjurious concealment of evidence in a prior suit, is not an independent action for damages collaterally attacking the previous judgment, but rather a motion to set aside the judgment under OCGA § 9-11-60 (d) (2). Richardson v. Simmons, 245 Ga. App. 749, 750 (538 SE2d 830) (2000).
Georgia does not recognize any independent causes of action for damages caused by perjury, spoliation of evidence, or other fraudulent alteration, destruction, or concealment of evidence in a prior judicial proceeding. Richardson v. Simmons, supra at 750. See also Owens v. American Refuse Systems, 244 Ga. App. 780, 781 (2) (536 SE2d 782) (2000) (following the majority rule with respect to spoliation of evidence); Shepherd v. Epps, 179 Ga. App. 685, 686 (1) (347 SE2d 289) (1986) (following the majority rule with respect to perjury); Sun v. Bush, 179 Ga. App. 140, 141 (3) (345 SE2d 873) (1986) (following the majority rule with respect to peijury). Compare Peters *572v. Imperial Cabinet Co., 189 Ga. App. 337, 338 (1) (375 SE2d 635) (1988) (extra-judicial false swearing). Actions of this type, “undermine the principle that judgments are final and litigation must be brought to an end and is subject to being abused to harass or intimidate litigants with the threat of a subsequent collateral attack. [Cit.]” Richardson v. Simmons, supra at 750. See also Shepherd v. Epps, supra at 686 (1).
The law provides various forms of relief which can be pursued by one who believes that a judgment has been wrongly entered. However, a cause of action for damages based upon the [opposing party’s] alleged fraudulent securing of [a particular] judgment is not among them. When confronted with an allegedly erroneous judgment, [a party] or other entity with a present interest in the former outcome, must attack the underlying judgment, not the [opposing party]. . . . [T]he law prescribe^] the manner in which a . . . judgment [can] be attacked for fraud or other acts of the adverse party. [Cits.] The fact that resort was not made to that method of attack does not afford any reason for sanctioning the instant collateral suit for damages.
Matthews Group & Assoc. v. Wages, 180 Ga. App. 151, 152-153 (2) (348 SE2d 695) (1986). Under the majority’s holding, litigation would never truly be over, because the loser in any lawsuit now has the right to bring a subsequent action alleging that the prior judgment was obtained by the opposing litigant’s fraud and deceit.
Rose v. Thorpe, 240 Ga. App. 834 (525 SE2d 381) (1999) is not distinguishable. Like the order for so-called arrearages in Rose, any award of damages in this action would be tantamount to an impermissible retroactive modification of the prior child support judgment. See Rose v. Thorpe, supra at 834-835. The majority also erroneously distinguishes Foster v. Foster, 260 Ga. 813 (400 SE2d 629) (1991) on the ground that it involved only an attempt to supplement a child support award by a means other than a modification action. In fact, the mother in Foster filed a complaint which alleged fraud by the father relative to a settlement agreement which was incorporated into the final divorce decree. Foster v. Foster, supra at 813 (1). There, as here, a prospective modification action would be the exclusive collateral remedy. Foster v. Foster, supra at 814 (2). See also Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279) (1989) (recognizing that a child support judgment cannot be modified retroactively).
Since the allegations in this suit are clearly such as would not render the judgment in the prior action void on its face, the effect of the instant action is to make a collateral attack on the judgment in *573the prior suit in violation of OCGA § 9-11-60 (a). Richardson v. Simmons, supra at 750. See also Shepherd v. Epps, supra at 686 (1). Like the mother in Rose, Ms. Butler’s only option was to make a motion to set aside pursuant to OCGA § 9-11-60 (d) (2), even though, under OCGA § 9-11-60 (f), it could only be made within three years of the original judgment. Rose v. Thorpe, supra at 834. See also Mehdikarimi v. Emaddazfuli, 268 Ga. 428, 429 (2) (490 SE2d 368) (1997).
Decided November 19, 2001 Reconsideration denied December 13, 2001. Banks, Stubbs, Neville & Cunat, Robert S. Stubbs III, Dana A. Azar, for appellant. Browning & Tanksley, Thomas J. Browning, Carla F Bright, for appellee. David A. Webster, Ashley Carraway, Eric G. Kocher, Vicky O. Kimbrell, Nancy R. Lindbloom, Lisa J. Krisher, Phyllis J. Holmen, amici curiae.Therefore, although Ms. Butler’s lawsuit is not barred by res judicata, she nevertheless does not have a viable damages claim against Mr. Turner based upon fraud and deceit. See Matthews Group & Assoc. v. Wages, supra at 153 (2). The judgment of the Court of Appeals should be affirmed.
I am authorized to state that Chief Justice Fletcher and Presiding Justice Sears join in this dissent.