It turns out that “until death do us part” may not be the last nail in the coffin when it comes to marriage.

In Georgia, the deaths of both spouses did not end litigation in a lawsuit for alleged violation of a divorce decree.

Now, the divorce case that survived both spouses has left an interesting legal takeaway: sue a company, not an estate, or run the risk of ending the process in legal force.

The Georgia Court of Appeals has breathed new life into a lawsuit. It ruled that a “pleading error” in the case was warranted, reversing the decision of the lower court and referring the case back to the Jasper County Superior Court.

Judge Brenda H. Trammell, Superior Court Judge, Ocmulgee Judicial Circuit. Courtesy photo

During the argument, former wife Carolyn C. Suddeth alleged that her ex-husband Raymond had violated her 1996 divorce decree. But the contempt she’d filed after his death didn’t name him. Instead, it named her ex-husband’s estate rather than his executor Roy R. Kelly III.

Brenda H. Trammell, Jasper County’s Superior Court judge, awarded the widow more than $ 80,000 for interest in properties sold, past due alimony, and attorney’s fees. The judge also found that the ex-husband had disregarded the divorce settlement.

But when the court granted Carolyn’s motion for contempt, the ex-wife had died too.

Another lawyer joined the fight, represented by William M. Waters of Ballard Stephenson & Waters of Covington. Jennifer Suddeth Williams picked up where Suddeth left off as a substitute. But like Suddeth, Williams also failed to amend the lawsuit to name the executor in place of the estate.

“Fix this situation”

Representing the ex-husband’s estate, attorneys Martin L. Fierman and Ben Durant Fierman of the Fierman law firm, Madison, filed a discretionary appeal following the award of the court of first instance and the double rejection of his dismissal requests.

The defense duo argued that the matter was legally null and void, “because the underlying disregard action was only pursued against the ex-husband’s estate, not against him individually or against the administrator of the estate”.

A panel of Presiding Judge M. Yvette Miller of the Georgia Court of Appeals and Judges Kenneth Hodges III and Trea Pipkin ruled that the Court of First Instance “did not provide grounds for its actions in the orders to deny the defendant’s dismissal motions.” the arbitral award and referred the case to the lower court after it was determined that a solution existed.

(lr) Presiding Judge M. Yvette Miller and Judges John Pipkin and Kenneth Hodges. (Photos: ALM / Courtesy)

“However, there is a measure that can be taken to remedy this situation. A party wrongly bringing an estate action can try to change that party’s line of argument to identify the right party in the interests of the estate, the legal representative of the estate, ”Hodges said in a statement. “To date, however, Williams, as executor of Carolyn’s estate, has failed to avail of this remedy by attempting to amend the pleadings to reflect the real party of interest. It is therefore necessary to consider whether Williams, as Carolyn’s agent, is currently eligible for an exemption from the rule that an estate lawsuit cannot be sustained. “

There are exceptions

The opinion stated that the courts have recognized exceptions to the rule that “an estate is not a legal person that can be a party to legal proceedings”. Co. In this case, the plaintiff had only been labeled “the estate of Frank G. Bagley”, but the Supreme Court found that “the lawsuit was not legally null and void”.

Judge Kenneth Hodges III, Federal Court of Appeals.  Photo: John Disney / ALM Judge Kenneth Hodges III. (Photo: John Disney / ALM)

“The block exception seems to be triggered when the personal representative of the estate was actually fully involved in the legal dispute and the alleged deficiency was waived,” the statement said. “In stark contrast to Block, there is no obvious waiver of the alleged deficiency. On the contrary, the failure to name the real party of interest was addressed in several dismissal motions. “

The Appellate Body stated that although the appeal and exception did not appear to have been triggered in the case, the court of first instance did not fully consider procedural issues. Since the lower court submitted “no factual findings” with regard to an amendment appeal or a statutory nullity exception and also did not provide “reasons for their actions in the orders to reject the defendant’s applications for dismissal”, the appellate court ruled that the preliminary court had more work to do.

Furthermore, there is nothing in the relevant orders to suggest that the court was considering either Section 9-11-17 (a) of OCGA or whether any action taken by Kelly would constitute a waiver of Carolyn’s alleged deficiency has. ”read the opinion. “This is not the first time we are addressing these issues on appeal. As a result, we are completely reversing the order of the court of first instance and are referring this case to the court of first instance to fully address the question raised by the defendant regarding the real party in order to first determine whether this matter can be continued. “

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Appeals body makes procedural distinction in the estate struggle