CABREL v. LumCABREL v. Lum
Appellant/cross-appellee Aline Cabrel is the surviving spouse of Lucien Cabrel, who died in December 1963; appellees/crossappellants Ramona Lum and Mary Jamelia Griffin are the adult daughters of Aline and Lucien Cabrel. Mrs. Lum and Mrs. Griffin and their two brothers 1 were minor children when their father died, and the four minor children and their mother were the reciрients of a joint award of year’s support in 1964. In 2000, the daughters filed a petition to partition real property located in Henry and Spalding counties in which property the daughters claimed an interest by virtue of the 1964 joint award of year’s support. 2 In their petition, the daughters also sought an accounting and to recover from their mother income generated by the property between 1964-1997. In 2001, Mrs. Cabrel withdrew her opposition to partitioning the property and, as a result of that concession, the superior court entered a consent order granting the application for partitioning. In 2004, a judgment was entered on a jury verdict approving the partitioners’ return, thereby awarding the daughters fee-simple title to approximately 189 acres of the property and Mrs. Cabrel fee-simple title to 487 acres. There remained pending the daughters’ claim for a portion of the income generated by the property since 1964.
In January 2009, the trial court granted partial summary judgment to the daughters on the remaining issue of income, finding their mother was liable to them for their proportionate share of the income produced by the property from 1964-1997. The trial court denied summary judgment to the daughters as to the amount to which the daughters were entitled and whether Mrs. Cabrel was entitled to any set-offs. In September 2009, Mrs. Cabrel filed a motion for summary judgment on the issue of damages and sought to set aside the 2004 judgment partitioning the property, asserting that her daughters had no right to partition the property or to income generated by the real property since that property was awarded in 1964 to her and the minor children as a year’s support. In July 2010, the trial court entered an order declining to set aside the judgment of partition and granting Mrs. Cabrel summary judgment on the issue of damages, thereby awarding the daughters no monetary damages. The trial court also denied the daughters’ request for an award of attorney fees under OCGA § 13-6-11. The trial court recognized that, during the life of the surviving spouse, a child cannot force partitioning of property received as an award of year’s support, but held that the 2004 partitioning occurred as a result of Mrs. Cabrel having consented to the partitioning and not having appealed the partitioning judgment or having sought timely to vacate the judgment. The trial court ruled that Mrs. Cabrel was barred by the doctrines of res judicata, laches, estoppel, and waiver from seeking to disturb the 2004 judgment of partition. On the issue of damagеs, the trial court found in favor of Mrs. Cabrel, ruling that because there remained pending the issue of the amount the daughters were entitled to collect as a result of their mother’s use of the property awarded as a year’s support, Mrs. Cabrel was not barred from raising the award of a year’s support to establish that her daughters were not entitled tо income from the property. Finding in support of the continued existence of the year’s-support award, the trial court did not award damages to the daughters.
In Case No. S11A0212, Mrs. Cabrel appeals the denial of summary judgment on the partitioning issue, contending the court that entered the 2004 partitioning judgment was without jurisdiction to partition the property
1. Mrs. Cabrel asserts the trial court erred when it did not set aside the 2004 partitioning judgment. She contends the Superior Court of Spalding County was without jurisdiction in 2004 to enter the partitioning judgment during her lifetime since the property at issue was the subject of the 1964 award of year’s support, and only the probate court, the successor of the court that set aside the property as an award of year’s support, could sever that joint award.
A motion to sеt aside a judgment must be brought within three years of the entry of the judgment complained of; a judgment void for lack of personal or subject-matter jurisdiction may be attacked at any time. OCGA § 9-11-60 (f). Since Mrs. Cabrel sought to set aside the 2004 partitioning judgment more than three years after its entry, her attack on that judgment is viable only if the court that entered the judgment lacked personal or subject-matter jurisdiction. See
Hook v. Bergen,
Since the motion to set aside was filed more than three years after the entry of the judgment of partition and that judgment was made by a court with jurisdiction, the trial court did not err when it denied Mrs. Cabrel’s motion to set aside the judgment of partition. The judgment appealed in Case No. S11A0212 is affirmed.
2. In their cross-appeal, the daughters, who hold fee-simple title to 189 acres of the 676 acres as a result of the 2004 judgment of partition, contеnd the trial court erred when it awarded them no damages on their claim to a share of the income generated by the year’s-support property from 1964-1997. The daughters maintain they are entitled to an accounting in light of their status as co-tenants with their mother as a result of the 1964 joint award of year’s support. In order to address the issues presented by the cross-appeal, a brief overview of the law of year’s support is warranted.
When an individual dies testate or intestate and is survived by a spouse and/or minor children, the survivors are entitled, upon application to the probate court having jurisdiction over the decedent’s estate, to an allowance out of the estatе called a year’s support. OCGA §§ 53-3-1 (c); 53-3-5 (a). See also Radford, 1 Ga. Wills & Administration in Georgia § 10:1. It is “[ajmong the necessary expenses of administration and to be preferred before all other debts . . . .” OCGA § 53-3-1 (b). See OCGA § 53-7-40 (ranking year’s support as the first claim an estate is liable to pay, “unless otherwise provided by law”). The property set aside is
“is a joint provision for all the beneficiaries. No part of it vests absolutely in any one of them, but the entire amount set apart becomes the common property of all, for the benefit of all of them together,” .. . [meaning] that the share of each is thrown into [a] hotchpоt, so to speak, and the whole, both as to corpus and income, is charged with the support of each of the beneficiaries so long as they occupy that relationship. . . .
Walden v. Walden,
Property set apart for the joint support and maintenance of the surviving spouse and minor children “continues after the expiration of the year, and thereafter so long as it lasts to be subject to the support of the [surviving spouse] during her [or his] life and the children[,] until they are married or reach majority.”
Walden v. Walden,
supra,
vests in them as tenants in common and the interest of minors is not terminated by their attainment of majority. But throughout the lifetime of the [surviving spouse] a joint award remains subject to the right of the [surviving spouse] to sell or encumber for [the surviving spouse’s] support or that of remaining minors.
Sudderth v. Bailey,
After all the children attain majority, title to the property remаins vested in them jointly, subject to the right of the surviving
spouse to sell the entire interest for the spouse’s maintenance and support.
Collins v. Collins,
3. Contrary to the daughters’ contention, the case law construing the year’s support statutes so as to postpone the adult children’s use and possession of their undivided interest in the set-apart property until the death of the surviving spouse and the attainment of majority by all the children is not an unconstitutional usurpation by the judiciary of the legislative branch’s exclusive power to make the laws. Rather, the case law is the result of this Court’s exercise of its judicial power “to interpret the statutes enacted by the lеgislative branch and enforced by the executive branch”
(Handel v. Powell,
4. Citing
Claxton v. Claxton,
supra,
5. The daughters next contend they are entitled to an accounting pursuant to OCGA § 44-6-121 of income derived from the year’s support property from 1964-1997. The trial court’s 2010 judgment did not deny them an accounting; rather, it held that they were entitled to no monetary award with regard to the income generated by the year’s support property. The trial cоurt did not err when it found that the daughters were not entitled to receive today rents and profits generated by the set-apart property during the minority of the daughters or during their majority. A minor child who is a beneficiary of a joint award of year’s support “ha[s] no right to demand or receive . . . her portion of rents and profits of such land.”
Walden v. Walden,
supra,
6. The trial court did not err when it did not award attorney fees to the daughters. The daughters alleged in their complаint filed in 2000 that Mrs. Cabrel was responsible for their expenses of litigation, including attorney fees, pursuant to OCGA § 13-6-11 because she purportedly had acted in bad faith, been stubbornly litigious and had caused them unnecessary trouble and expense. “[T]he expenses of litigation recoverable pursuant to OCGA § 13-6-11 are ancillary and may only be recovered where other elements of damage are also recoverable.”
Steele v. Russell,
7. The daughters’ request that the Court impose on Mrs. Cabrel a $2,500 penalty for frivolous appeal is denied.
Judgment affirmed.
Notes
The brothers are not involved in this litigation, having quit-claimed their intеrest in the property to their mother.
Since Mr. and Mrs. Cabrel had held title to the land as tenants in common, upon the death of Mr. Cabrel, Mrs. Cabrel held an undivided half-interest in the land. The joint award of year’s support to the five beneficiaries of the year’s support (Mrs. Cabrel, her two daughters and her two sons) in Mr. Cabrel’s undivided one-half interest resulted in each benеficiary holding an undivided l/10th interest. After her two sons quit-claimed their interests to Mrs. Cabrel, she held an undivided 4/5th interest and each daughter held an undivided l/10th interest.
Citing decisions of the Court of Appeals construing the Rules of the Court of Appeals of Georgia, the daughters argue that Mrs. Cabrel’s appellate claims should he deemed abandoned because she did nоt include within her brief her enumeration of error. Since the Rules of the Supreme Court of Georgia differ from those of the Court of Appeals, we address Mrs. Cabrel’s contention that the trial court erred when it declined to set aside the 2004 judgment of partition.
The probate court of the county in which the year’s support award was made does not hаve jurisdiction to partition the property. See OCGA § 44-6-160, which requires a petition for statutory partitioning to be filed in superior court. The probate court retains jurisdiction over the year’s support property for a limited purpose — to review certain proposed conveyances or encumbrances of the property sеt apart. See OCGA § 53-3-19.
The 1937 act, codified in OCGA § 53-3-19, requires the probate court to approve any conveyance or encumbrance of the year’s support property in order for that conveyance or encumbrance to bind the children. In
Turman v. Mabry,
The cases upon which the daughters rely
(Anderson v. Westmoreland,
The daughters are enjoying their interest in the set-apart property only due to the 2004 partitioning to which Mrs. Cabrel consented.