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Rivers v. Rivers

Court of Appeals of Georgia, Third Division

January 16, 2019

RIVERS
v.
RIVERS et al.

          GOBEIL, COOMER and HODGES, JJ.

          Gobeil, Judge.

         Tamie Rae Rivers ("Ms. Rivers") appeals from the Gwinnett County State Court's denial of her motion for default judgment and dismissal for want of prosecution of her continuing garnishment action against Steven Rivers ("defendant") and his employer Austin Commercial, LP ("garnishee"). She argues that the trial court erred in failing to enter a default judgment and in dismissing the case for want of prosecution . We agree, and we therefore vacate the trial court's order and remand the case for further proceedings.

         On March 6, 2017, Ms. Rivers filed a continuing garnishment action against the defendant and the garnishee based on a 2012 Florida judgment she holds against the defendant in the amount of $590, 416.84, of which $547, 236.77 remains outstanding.[1] The trial court issued a summons of continuing garnishment directing the garnishee

to immediately hold all money, including wages, and other property, except what is known to be exempt, belonging to the Defendant or obligations owed to the Defendant . . . beginning on the day of service of this summons and including the next 179 days. You are FURTHER COMMANDED to file your answer, in writing, not later than 45 days from the date you were served with th[e] summons. . . . Your answer shall state what money, including wages, or other property, except what is known to be exempt, belonging to the Defendant or obligations owed to the Defendant you hold or owe beginning on the day of service of this summons and between the time of such service and the time of making your first answer. Thereafter, you are required to file further answers no later than 45 days after your last answer.
. . .
Should you fail to file Garnishee Answers as required by this summons, a judgment by default will be rendered against you for the amount remaining due on a judgment as shown in the Plaintiff's Affidavit of Continuing Garnishment.

         On May 1, 2017, the garnishee filed its first answer, indicating that none of the defendant's wages were subject to continuing garnishment for the relevant pay period. The garnishee further stated that the "Florida Support Order garnishes maximum permissible amount of weekly disposable earnings." It is undisputed that no further answers were filed by the garnishee during the continuing garnishment period, which ended on September 3, 2017.

         Subsequently, on January 16, 2018, Ms. Rivers filed a motion for entry of a default judgment, asserting that she was entitled to a default judgment because the garnishee failed to file subsequent answers as required under OCGA § 18-4-42. On January 30, 2018, prior to the expiration of the time period for the garnishee to file a response to the motion for default judgment, the trial court issued an order denying the motion for default judgment and dismissing the case for want of prosecution. Specifically, the trial court found as follows:

Plaintiff in the above-styled action filed a "Motion for Default Judgment Against Garnishee" on JANUARY 16, 2018. The garnishment action was filed by Plaintiff on MARCH 6, 2017 and the Summons and Affidavit of Continuing Garnishment was served on the Garnishee on MARCH 8, 2017. Plaintiff offers no reason in [her] Motion as to why [she] failed to pursue and/or prosecute this action in a timely manner. By operation of law, garnishments extend only to all debts, property and
effects owed by the garnishee to the defendant from the date of service of the summons of continuing garnishment on the Garnishee up to and including the 179th day thereafter. See O.C.G.A. § 18-4-111. Plaintiff's Motion must be denied and the case dismissed for want of prosecution. See O.C.G.A. § 9-11-41. Ms. Rivers filed an application for a discretionary appeal, which we granted. This appeal followed.

         We review the trial court's denial of a motion for default judgment and a dismissal for want of prosecution for an abuse of discretion. See Barbour v. Sangha, 346 Ga.App. 13, 13 (815 S.E.2d 228) (2018) (providing standard of review of denial of a motion for entry of a default judgment); Roberts v. Eayrs, 297 Ga.App. 821, 821 (678 S.E.2d 535) (2009) (providing standard of review for dismissal of case for want of prosecution). "An abuse of discretion occurs where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law." Lewis v. Lewis, 316 Ga.App. 67, 68 (728 S.E.2d 741) (2012) (citation and punctuation omitted). Further, "where it is apparent that a trial court's judgment rests on an erroneous legal theory, [we] cannot affirm." Suarez v. Halbert, 246 Ga.App. 822, 824 (1) (543 S.E.2d 733) (2000) (citation and punctuation omitted). However, to the extent this case presents a question of law, the standard of review is "de novo, during which we owe no deference to the trial court's ruling and apply the plain legal error standard of review." Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc., 317 Ga.App. 123, 125 (730 S.E.2d 514) (2012) (citation and punctuation omitted).

         1. Ms. Rivers argues that she was entitled to a default judgment as a matter of law, pursuant to OCGA § 18-4-43 (a), and that the trial court erred in denying her motion. We agree.

         "In Georgia, garnishment statutes are in derogation of the common law and, thus, must be strictly construed." Principal Lien Services, LLC v. Nah Corporation, 346 Ga.App. 277, 279 (1) (814 S.E.2d 4) (2018) (citation, footnote, and punctuation omitted). Where "a plaintiff has obtained a money judgment against a defendant, the plaintiff is entitled to file a garnishment action in a court which has jurisdiction over the garnishee, the person or entity which has in its possession money or property which belongs to the defendant and is subject to garnishment." Id. at 280 (1) (citation, footnote, and punctuation omitted). In a continuing garnishment action, "[t]he garnishment period shall begin on the day of service of the summons of garnishment and . . . shall include the next 179 days." OCGA § 18-4-4 (c) (1).[2] After filing an initial answer, a garnishee must file subsequent answers at least once every 45 days. Id. § 18-4-42 (d) (1). "When a garnishee fails or refuses to file a garnishee answer at least once every 45 days, such garnishee shall automatically be in default." Id. § 18-4-43 (a). "The default may be opened as a matter of right by the filing of a garnishee answer within 15 days of the day of default and payment of costs." Id. § 18-4-21; see also OCGA § 18-4-43 (a) ...


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