Utica Mutual Insurance v. Mitchell

Smith, Judge.

Suanne Marie Mitchell filed this action in superior court pursuant to OCGA § 9-11-60 (d) to set aside the dismissal by the probate court of her mother as guardian of Mitchell’s property. The trial court *831granted the motion. Because OCGA § 9-11-60 (d) was not an appropriate vehicle for seeking review in this case, we reverse.

The action underlying this appeal arose from a guardianship that came into effect following the settlement of a wrongful death action. As a result of the settlement, Mitchell, 13 years old at the time, was awarded approximately $450,000 to be held in a trust. Her mother, Kirby, was appointed guardian of Mitchell’s property on May 13, 1988. Utica Mutual Insurance Company provided a $450,000 bond during the course of the guardianship. On April 3, 1991, Kirby petitioned the probate court to allow her resignation as guardian. Her justification for resigning was that Mitchell had been emancipated by marriage in February 1990. After the petition was filed, a citation was issued, and notice of the dismission hearing was published.1 On May 6, 1991, the probate court issued a final order and letters of dismission relieving Kirby from the guardianship. Subsequently, in May 1995, Mitchell filed an action in superior court to set aside the dismissal of Mitchell as guardian.2 She then filed a motion for summary judgment which the trial court granted. This appeal by Utica ensued.

The trial court did not have authority to rule on Mitchell’s summary judgment motion because it was without jurisdiction under OCGA § 9-11-60 to entertain the action to set aside the dismissal. Subsection (a) of that statute provides, “A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” (Emphasis supplied.) The judgment Mitchell seeks to attack, that of the probate court dismissing her mother as guardian, is not void on its face. That judgment explicitly recites that “[a]ll procedural requirements of Georgia law have been met.” Such a recitation, although broad, necessarily includes those requirements set forth at OCGA § 29-2-84, the statute addressing the procedures for obtaining letters of dismission from the probate court. Although Mitchell now argues that the probate court did not, comply with those procedures and even submits the affidavit of the probate court judge to that effect, such evidence is not apparent from the face of the probate court judgment.

Furthermore, the Supreme Court has expressly limited judg*832ments void on their faces under subsection (a) to “those judgments which lack either personal or subject matter jurisdiction.” Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993). As for any argument that the judgment is void because the probate court did not have personal jurisdiction for lack of service, the record shows that the application for dismission was published as provided in OCGA § 29-2-84 (a). Such service in special statutory proceedings is expressly allowed by OCGA § 9-11-4 (j). Accordingly, the judgment is not void, and Mitchell was not authorized to attack that judgment in superior court. See OCGA § 9-11-60 (b) (judgments may be attacked by motion to set aside only in court of rendition).

The dissent argues that the probate court judgment is void for lack of personal jurisdiction because the ward was never served with notice of the dismission. In particular, the dissent states that notice was required under OCGA § 9-11-4 or § 29-2-77. A reading of those statutes, though, shows that they do not require such notice. OCGA § 29-2-84 (a) is the only statute addressing service of a petition for dismission, and there is no dispute that notice of the hearing was properly published under that statute. OCGA § 9-11-4 (j) expressly provides that service is sufficient when “made in accordance with the statutes relating particularly to the proceeding.” Service was accomplished as provided by OCGA § 29-2-84, and it was therefore sufficient.

It may be regrettable that service on the ward is not expressly provided for in our Code, but the statutory scheme as currently provided by our legislature simply does not require personal service on the ward. Because notice was accomplished as provided by the probate code, it cannot be said that the probate court judgment was void on its face, and the superior court did not have jursidiction over the issues raised by Mitchell’s action.

Judgment reversed.

Andrews, C. J, Birdsong, P. J., and Ruffin, J, concur and concur specially. Beasley and Eldridge, JJ, concur in part and dissent in part. McMurray, P. J., dissents.

The publication required “all persons interested” to appear at a specified time and place for a hearing on the petition for dismissal.

Mitchell alleged that the dismissal was improperly granted because, among other things, there was no accounting and settlement made to the probate court and on the ground that a nonamendable defect appeared on the face of the record because she was not given notice of the dismissal hearing.