*1 467 partial ruling summary judgment, jury we reverse as a issue re- mains for determination from as to whether the evidence express rights distinctly was an waiver of under the contract with full knowledge rights to be intended waived whether plaintiff complete corporate authority or not the to waive same knowledge of what waive shown evidence considered the trial court. Vol T. Blacknall Co. v. Frazee, 327, 122); State, Snead v. 271, 510); Fech, 275-276 SE Fech v. 79); Holland, Taylor 11, 14; Kennedy 20 Ga. v. Manry, 6 Ga. (3) 29); Garcia, Garcia v. SE 201). Accordingly, grant summary construing partial reversed, and since the grant summary of total we also reverse the trial court as ruling. to this part Shulman, part. reversed in affirmed Birdsong, J., denied March
Henry Jr., Hatcher, M. for appellant. Eisner,
Robert Vance, A. Greer, J. Thomas Thomas E. al. 67407. MACUCH et v. PETTEY al.
Carley, Appellee Pettey formerly Macuch were and wife. During marriage, a child was conceived and born. Pettey divorced, When the terms of their settlement into the divorce decree. Pursuant decree, custody of the child was awarded to appellant, and Pet- tey required to pay support granted and was visitation rights. The subsequently decree was provide modified to for an in- crease in the monthly amount of paid to be Pettey.
After the terms of the modified divorce decree had been effect years, appellant for several Appellant instituted the instant action. sought adjudication Hoflieh, rather than appellee Pettey, was the her She petitioned Pettey’s to terminate parental rights impose parental and to responsi- bilities upon Hoflieh. The trial granted appellees’ motion to dis- miss appeals.
1. Appellant enumerates as error the appellees’ mo- upon principles was based That motion dismiss. competent “A of a court of provides: 9-12-40 OCGA and their shall conclusive between jurisdiction which under the rules of law put in issue or privies as to wherein the might the cause put have *2 In the instant is or set aside.” judgment until the reversed rendered by filed divorce which was previous the the child was born as Pettey, recited that the against appellee by the approved which was marriage. agreement, The settlement decree, “their” mi- referred to into the divorce parties. the the duties of delineating the child effectively adjudicated minor paternity issue of the the appeal from no was taken. Since prior proceedings, the divorce action, the that legitimacy recognized by be raised those who are judicata, and cannot now is res Fooster, v. Ga. 444 prior Roberson by judgment. bound 597) Pike, (1975); App. SE2d East v. (1982); Turner, Turner v. Obvi- parties ously, appellee Pettey, prior to the appellant and are bound their own divorce decree.
Moreover, to di- though appellee stranger Hoflich was even vorce and is not bound rendered proceedings, therein, asserting paternity from is nonetheless agreements entered stipulations claim him. “Parties to estopped taking judicial proceedings are course therewith, litigant no will be heard to com- positions inconsistent plain plainly appear unless it made that the consent the com- be McDonald or mistake. plaining party was obtained fraud [Cits.]” Hester, No fraud or agreed paternity stipulated mistake as to the of the child herein. Accord- proceedings divorce is the estopped asserting Hoflich ingly, appellant child’s father. that, notwithstanding
2. Appellant maintains of action proceedings, the divorce the child has paternity adjudicated OCGA 19-7-40 et to have her individually brought by appellant both proceedings daughter. as next friend of her minor statutory procedure whereby seq. provides 19-7-40 et
OCGA § However, may judicially determined. a child exclusive, rather is legislative enactment intended to be but existing governing of all laws addition to and cumulative 1980, p. 3. Since support. Ga. L. paternity and child adjudicating pater- to vitiate other methods statute is since, bar, nity, previously at de- the case issue has pre- termined course of divorce the minor child prior if cluded from she is bound relitigating judgment. or party privy is a of another where there is a mutual
“[0]ne relationship right. Privity successive to the same is not estab [Cit.] lished fact persons happen the mere that the interested question in proving same the same state of facts. [Cit.] privity All must exist as to the who are bound as against privies. are entitled to its benefits to it or their ‘Generally privies legally represented are those speaking, [Cit.] Privity party trial. connotes those who are with a law connected identity to the judgment party as to have such of interest that the represented legal right; and where this exist, all is found to are alike concluded and bound Wood, Smith v. judgment.’ [Cit.]”
646) (1967). In appellant’s
against appellee Pettey,
named,
minor
was specifically
expressly
and the final decree
ac
knowledged
custody
her and
for her
support. Although
not made a
proceedings
divorce
and was not
represented
litem,
therein
ad
appellant effectively as
*3
protected
serted and
interests
the child. The child’s interests
guarded by
were also
parens patriae.
the court
its role as
Harper
Ballensinger,
The case at distinguishable Armburst, bar Pike v. Ga. App. (1968), wherein a permit- child was ted to seek a determination of heirship plea a judi- cata based her putative parents. between case, In that it had been pleadings for divorce that there no provisions and no marriage, for a child. consideration, unlike the currently situation the issue of paternity had not been raised or determined in the course of the di- vorce proceedings.
Appellant Worthington v. Worthington, cites 44) (1983), statute, decided under proposition the 1980 for the her daughter neither from bringing an inde- pendent action to paternity. Worthington determine involved a con- putative illegitimate the mother tract between contract, approved by not been The which had child. discharge for any not lump duty support upon father’s putative contract Supreme Court held that such a mother.
sum under OCGA 19-7-40 subsequent brought action would bar however, Worthington, In the mother or child. paternity, and adjudication regarding therefore been no apply. judicata and res did not principles the instant adjudicated pursuant to divorce previously been apply, res do estoppel by judgment principles of appellees’ motion to dismiss. not err trial did Deen, Banke, J., Deen, P. affirmed. J., also specially. concurs March denied Katz, appellants. Richard A. for Smith, Cooper, Gary
Lawrence A. W.
Deen, Presiding Judge, concurring specially. ap- opinion, majority with the since concurring
While independent pears impression of first to a child’s a case appropriate. de-legitimation, comments are additional Mad- parents. Normally unemancipated sue excep- An Queen, dox v. wilfully parent injures where a tion to this rule obtains wife obtained a case involves a situation where a entered, A the name of their stipulating joint divorce. child, ap- were made for of their offspring, provisions any appellant’s position, proved by court. As understand the state, has an including judice, in the case sub disaffiliate, de-legitimate, right of action at time *4 family by contending that his himself from disaffirm and divorce ad litem party, long mother is a real father or third the child’s interests attorney appointed protect has not been an were identi- parents the child’s previous proceeding during in which adopted children this any or all of the fied. This could mean that of to court and have go would have the state parents revealed to them. biological their family unity. always encouraged public policy Georgia of parents, their to sue have not allowed Unemancipated children correct, If family position disrupts unity. because type rights, all children would have a of bill of throughout state time, family seeking indepen- of harmony renounce their an many years living dent action status after of with de-legitimation purported parents. family disharmony, dis- This would create unrest, I unity, public policy and believe that it would violate the liberally legiti- this state. Our court should construe efforts toward mation but in sanctioning de-legitimation.
67531. THE STATE v. LESTER.
Birdsong, Quash. Lester, Motion to John F. Judge Recorder’s Court of County, Gwinnett charged malpractice office. counts, State an containing obtained indictment five only two of I, which appeal. are of concern in this Judge Count Lester is ac- cused of nolle improperly entering prosequi action on 100 traffic viola- tions, but at the same time on accepting, county, behalf costs of payment court and of fines for serious traffic offenses such as driving under the influence of intoxicant and similar charges possibly could result in suspension operate revocation of licenses to and/or vehicles this state. As a prosequi result the nolle notifica- Department Safety accomplished Public was not for its consideration of the traffic violation purpose of OCGA 40- ostensibly IV, thwarted. As to Judge Count Lester is accused of accepting pleas guilty (pedestrian to lesser offenses drunk or public influence) drunk driving in lieu of defendants who present court, cases, in 243 traffic accepting costs of fines based upon again the lesser offenses. Once alleges State the result guilty pleas of these was to thwart purpose of OCGA 40-13-3.
Judge Lester entered a motion quash the 100 cases which nolle prosequi had been entered of the 243 cases in conviction a lesser offense had been on ground entered the action taken judge in each of these 115 cases had years occurred over two before the date of the Discovery indictment. of these actions was based audit the GBI which reflected course of conduct followed It recorder his court. is con- tended malpractice conceded the State that office appropriate misdemeanor and that the statute of limita- applicable years. tions quashed thereto is two The trial court those parts of Counts IV which reflected actions taken re- (and predated corder which indictment the August, audit GBI) years. appealed, more than two The State complaining of quashing trial court’s portions these of the apparently other-