Murphy v. Murphy , 263 Ga. 280 ( 1993 )

Clarke, Chief Justice.

The parties were married in 1962. In May 1988, appellant wife filed a “petition for separate maintenance,” in DeKalb Superior Court. This action was styled No. 8-6235-8. In her petition appellant sought custody of the parties’ children as well as child support. Paragraph 8 of the petition states that “there is no pending action for divorce between the parties in this state.” The parties entered into a settlement agreement, dated March 28, 1989, resolving child custody and property rights. The preface to this agreement stated, that “the wife has filed a Petition for a Divorce against the husband.” Paragraph 16 of the agreement provided, “[t]his agreement is made without in any manner consenting to a divorce between the Parties, but nothing herein shall be construed to bar or prevent either party from suing for absolute divorce . . . .” It is undisputed that while neither party filed a petition for divorce, on March 28, 1989, the trial court entered a judgment of divorce in Civil Action No. 8-6235-8, the case number assigned to appellant’s petition for separate maintenance. The trial court incorporated the settlement agreement into the final judgment of divorce.

Appellee husband subsequently remarried. In 1991 he filed a modification action, seeking a decrease in his child support obligation. Appellant answered and counterclaimed, praying that appellee be held in contempt for failure to pay $17,000 in past due child support. In July 1992, over three years after the trial court entered the judgment of divorce, appellee filed a motion to set aside the judgment, maintaining that the appellant’s failure to file a petition for divorce constituted a non-amendable defect appearing on the face of the pleadings which rendered the judgment void on its face under OCGA § 9-11-60. The trial court granted the appellee’s motion to set aside on the ground that appellant’s action for separate maintenance did not contain a prayer for divorce, and no divorce petition had subsequently been filed. We granted appellant’s application for discretionary appeal to review that ruling. OCGA § 5-6-35 (a) (2). For reasons which follow, we reverse.

Appellee relies on Wasden v. Rusco Indus., 233 Ga. 439, 444 (211 SE2d 733) (1975), to support his argument that the trial court correctly granted his motion to set aside. Taking the language from both OCGA § 9-11-60 (a) and (d) (3), the court held in Wasden that

a judgment is void on its face when there is a non-amendable defect appearing on the face of the record or pleadings which is not cured by the verdict or judgment and the pleadings affirmatively show that no legal claim in fact existed.

The Court went on to distinguish between those judgments which are void, and those which are merely voidable, concluding that a void judgment is “void ab initio whenever the defect is apparent on its face.” (Emphasis supplied.) 233 Ga. at 445. Since a void judgment is a nullity, “[statutes of limitation have no application to this class of judgments, and there can be no bar, estoppel or limitation as to the time when a void judgment may be attacked.” Id.

OCGA § 9-11-60 (a) 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.

OCGA § 9-11-60 (d) (3) provides that a motion to set aside may be brought to set aside a judgment where “a nonamendable defect... appears on the face of the record or pleadings.”

OCGA § 9-11-60 (f) which, we conclude, controls the case before us, provides, in part,

A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Motions for new trial must be brought within the time prescribed by law. In all other instances, all motions to set aside judgments shall be brought within three years from the entry of the judgment complained of. (Emphasis supplied.)

We now conclude that the holding in Wasden, that a judgment void due to a non-amendable defect appearing on the face of the record may be set aside at any time, came as a result of the failure to recognize the correct definition of the term “void on its face” as its appears in subsection (a).

Subsection (f) establishes the exclusive time limitation for when a judgment is attacked by a motion to set aside. It provides that a judgment void for lack of subject matter¹ or personal jurisdiction may be attacked at any time, and further provides that in “all other instances,” a motion to set aside a judgment must be filed within three years of entry of the judgment. This language is susceptible to only one interpretation. It plainly provides that the only judgments subject to attack after more than three years are those which lack subject matter or personal jurisdiction. We face the task of reconciling subsection (f) with subsection (a). Although a cursory reading might indicate a conflict between the two, they are shown to be in harmony when the phrase “void on its face,” contained in subsection (a), is read to mean those judgments which lack either personal or subject matter jurisdiction. We think that the legislature intended that this meaning be given the statute so that its various subsections act in concert. Cf. Smyrna Marine v. Stocks, 172 Ga. App. 426 (323 SE2d 286) (1984). This interpretation renders subsections (a), (d) (3) and (f) totally consistent. While there is no time limitation on attacking a judgment “void on its face” due to lack of jurisdiction, there is a three-year time limitation on attacking all other judgments. Our holding here, of course, would limit collateral attacks provided for in subsection (a) to circumstances where the trial court lacks either subject matter or personal jurisdiction.

Wasden erroneously concluded that the judgment under consideration was “void on its face” within the meaning of subsection (a), when that judgment was, in fact, voidable under subsection (d) (3) because it contained a non-amendable defect appearing on the face of the record. Assuming that Wasden involved a direct attack, it reached the right result because the judgment was attacked within the three-year period of limitation under subsection (f). The inconsistencies in Wasden lie in its rationale, not in its result. To the extent that Was-den conflicts with this opinion, it is hereby overruled.

There is no contention in the case before us that the trial court which entered the judgment of divorce lacked either subject matter jurisdiction or personal jurisdiction over the parties. The 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.² The resulting judgment of divorce was subject to attack, but only within the three-year period of limitation provided by OCGA § 9-11-60 (f). Davis and Shulman, Georgia Practice & Procedure, Section 23-20 (6th ed. 1991). As appellee failed to make his attack within this time period, the trial court erred in granting his motion to set aside.

Judgment reversed.

All the Justices concur, except Hunstein, J., who dissents.

1 “ ‘Jurisdiction of the subject-matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs.’ ”

Nicholson v. State, 261 Ga. 197, 199 (403 SE2d 42) (1991), quoting Zeagler v. Zeagler, 192 Ga. 453 (15 SE2d 478) (1941).

2 This court has held that failure to receive notice of a final hearing constitutes a non-amendable defect on the face of the record, subject to attack. Coker v. Coker, 251 Ga. 542 (307 SE2d 921) (1983); Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980). However, we have not held that such a judgment may be attacked outside the three-year time limitation of subsection (f) where there is no allegation that the trial court lacked personal jurisdiction or subject matter jurisdiction.