Murphy v. Murphy

¶1dissenting.

¶2I do not agree with the majority that a judgment void on its face for a reason other than lack of subject matter or personal jurisdiction is not subject to collateral attack more than three years after it has been rendered. In its attempt to reconcile perceived conflicts among subsections (a), (d), and (f) of OCGA § 9-11-60, the majority has equated a judgment “void on its face” under (a) with a judgment void for “[l]ack of jurisdiction over the person or the subject matter” under (d) (1), and applied the three-year limitation period in (f) to collateral attacks on judgments void for any reason not included in *284(d) (1). Because I would reconcile the subsections without limiting collateral attacks on void judgments under OCGA § 9-11-60 (a) in the manner set forth in the majority opinion, I must respectfully dissent.

¶3The difficulty arises from language found in OCGA § 9-11-60 (f), which provides in pertinent part that

[a] judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. ... In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of.

¶4Although there is no language in subsection (f) addressing either collateral attacks or judgments void on the face of the record under subsection (a), the majority squeezes (a) within (f) by redefining “void on its face” to mean only “void because of lack of jurisdiction of the person or subject matter.” This interpretation ignores basic rules of statutory construction as well as established case law and the interplay of OCGA § 9-11-60 with OCGA § 9-12-16.

¶5I would reconcile subsection (f) with subsection (a) by holding that (f) applies to direct attacks on judgments and does not encompass collateral attacks on judgments void on the face of the record. This construction is reasonable once it is recognized that not all void judgments reflect their nullity on the face of the record or the pleadings. A judgment apparently regular on its face can be shown to be void by evidence dehors the record, e.g., because the trial court improperly dispensed with the jury. Canal Ins. Co. v. Cambron, 240 Ga. 708 (3) (242 SE2d 32) (1978). A judgment apparently regular on its face can also be shown by evidence dehors the record to be void for lack of subject matter or personal jurisdiction. E.g., Griffis v. Griffis, 229 Ga. 587 (1) (193 SE2d 620) (1972) (divorce decree void for lack of jurisdiction where evidence presented during child custody habeas corpus proceeding established divorce decree had been entered in county where neither spouse resided). Because subsection (a) restricts collateral attacks to judgments void on the face of the record, basic statutory construction demands the conclusion that a judgment void for reasons not shown on the face of the record can be challenged only by a direct attack, i.e., a motion for new trial under subsection (b) or a motion to set aside under subsection (d). Accord Porter v. Johnson, 242 Ga. 188 (2) (249 SE2d 608) (1978); First Fid. Ins. Corp. v. Busbia, 128 Ga. App. 485, 486 (197 SE2d 396) (1973). The “void because of lack of jurisdiction of the person or subject matter” language in subsection (f), which the majority mistakenly construes as applying to subsection (a) despite the fact that it tracks almost verbatim the language in subsection (d) (1) (motions to set aside for “[l]ack of juris*285diction over the person or the subject matter”), was necessary not in order to include in the three-year limitation period collateral attacks within the ambit of (f), but rather was necessary in order to exempt from that three-year period direct attacks under (d) (1) on judgments void for lack of jurisdiction when the nullity is not shown on the face of the record.

¶6When construed in this manner, it is apparent that the language in subsection (f) excepting judgments void for lack of jurisdiction from the limitation period was not intended to encompass collateral attacks under subsection (a), but instead was meant to eliminate the distinction drawn between judgments void on the face and void dehors the record where lack of jurisdiction is the cause of the nullity so that the limitation period would not apply to direct attacks under subsection (d) (1). This construction is consistent with the provisions of OCGA § 9-12-16,3 which “this court has consistently [held] allow [s] attacks on judgments on the ground that they are void at any time, however long after the rendition of the judgment. [Cits.]” Mason v. Carter, 223 Ga. 2, 4 (2) (153 SE2d 162) (1967), overruled on other grounds, Watson v. Watson, 235 Ga. 136, 138 (218 SE2d 863) (1975). It further avoids the problem in the majority’s interpretation equating subsection (a) with subsection (d) (1), that of violating the rule of construction which forbids that two provisos should be treated as having no more scope or significance than one of them would have if standing alone. Butterworth v. Butterworth, 227 Ga. 301, 304 (180 SE2d 549) (1971).

¶7Applying this construction of OCGA § 9-11-60 to the case at bar, I would affirm the trial court’s ruling. We have held that a challenge to a void judgment, when raised in defense to a motion to enforce that judgment by contempt, constitutes a proper collateral attack on the judgment. Lambert v. Gilmer, 228 Ga. 774 (187 SE2d 855) (1972). Appellee’s motion, although denominated a “motion to set aside the judgment,” was expressly made pursuant to OCGA § 9-11-60 (a) on the basis that the judgment was void and, applying the well established rule that “ ‘in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name,’ [cit.]” Frost v. Frost, 235 Ga. 672, 674 (1) (221 SE2d 567) (1975), I would find appellee’s defensive pleading indistinguishable from the motion filed by the former hus*286band in Lambert, supra, which this court held to be a collateral attack on an alimony judgment. Furthermore, as in Lambert, I would conclude that the judgment entered by the court was void on its face. In Lambert, the petition for divorce had contained no demand for alimony. Although the former husband had been served the divorce petition, he had filed no defense and there had been no trial at which evidence could have been introduced to amend the pleadings. In the case at bar, it is uncontroverted that no petition or pleading was filed by either party requesting the relief (i.e., the divorce) granted by the court; the record establishes that appellant never answered any “divorce petition” or filed any pleadings in response to such petition; and there was no evidentiary hearing at which the pleadings could have been amended to add the divorce issue. It is a basic principle that a court pronounces its decree “secundum allegata et probata,” i.e., according to the pleadings and evidence, Robson v. Harwell, 6 Ga. 589 (1) (1849), and hence relief cannot be granted for a matter not alleged or requested. Hall v. Cawvey, 204 Ga. App. 8, 11 (3) (418 SE2d 77) (1992). Judgments violating that principle are void. Lambert, supra.

¶8Therefore, because I would hold that the three-year limitation period in OCGA § 9-11-60 (f) does not apply to collateral attacks on judgments void on the face of the record brought pursuant to OCGA § 9-11-60 (a), and because I would find that appellee collaterally attacked a void judgment, I would affirm the trial court’s ruling.