FOURTH DIVISION

DOYLE, P. J.,

MILLER and DILLARD, JJ.

.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 15, 2014

In the Court of Appeals of Georgia

A14A0037. IN RE: ESTATE OF LOYD.

MILLER, Judge.

In March 2012, Charles Bentley Childs, Sr., as executor, filed a petition to

probate Virginia Childs Loyd’s last will and testament, as well as her codicil to the

will. Loyd’s nephew, Jack Childs, filed an untimely caveat, objecting to the petition

on the ground of undue influence. Charles moved to dismiss the untimely caveat, and

Jack responded with a motion to open default pursuant to OCGA §§ 15-9-47 and 9-

11-55 (b). The trial court granted Charles’s motion to dismiss, and Jack appeals,

contending that the trial court erred in dismissing his caveat as untimely, failing to

grant him an extension to file a caveat and denying his motion to open default. For

the reasons that follow, we affirm.
2

1. Before turning to the merits of Jack’s appeal, we must first examine this

Court’s jurisdiction over this appeal.

It is the duty of this Court on its own motion to inquire into its

jurisdiction. The Constitution of the State of Georgia of 1983, Article

VI, Section VI, Paragraph III (3), confers upon the Supreme Court of

Georgia jurisdiction in all cases involving wills. The Supreme Court of

Georgia has interpreted this language to mean only those cases where

the validity or construction of a will is the main issue on appeal.

(Citations and punctuation omitted.) In re Estate of Farkas, 325 Ga. App. 477, 478

(1) (753 SE2d 137) (2013). Here, the issues on appeal concern the timeliness of the

caveat and whether Jack was entitled to open default. Since the issues do not concern

the validity or construction of the will or codicil, we have jurisdiction over the appeal.

Id.

2. Jack first contends that the trial court erred in dismissing his caveat as

untimely. We disagree.

OCGA § 15-9-47 provides for automatic default in pending probate court

proceedings if an answer, caveat, or other responsive pleading has not been filed

within the time required by law or by lawful order of the court. Nevertheless, at any
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time before final judgment, the probate court, in its discretion, and upon payment of

costs

may allow the default to open for providential cause preventing the

filing of required pleadings or for excusable neglect or where the judge,

from all the facts, shall determine that a proper case has been made for

the default to open, on terms to be fixed by the court. In order for the

default to be thus opened, the showing shall be made under oath, shall

set up a meritorious defense, shall offer to plead instanter, and shall

announce ready to proceed with the hearing in the matter.

OCGA § 15-9-47. We will not disturb the probate court’s ruling on a motion to open

default, absent an abuse of discretion. See Simmons v. Harms, 287 Ga. 176, 178 (1)

(695 SE2d 38) (2010) (probate court has discretion with regard to motions to open

default under OCGA § 15-9-47).

So viewed, the record shows that Loyd executed her will in 1996, devising her

property in equal shares to her sisters, Doris Richwine and Eugenia Pitts, her brothers,

Charles and Mobley Childs, and her nephew, Jack Childs. The will also named Jack

as Loyd’s personal representative. In October 2004, Loyd executed a codicil to her

will, in which she appointed Charles as her personal representative to administer the

will. In the codicil, Loyd also specifically provided that “it is my wish and desire that

my nephew, Jack D. Childs, not inherit under any paragraph or provision of my Will.”
4

Loyd died on December 24, 2011. Thereafter, on March 30, 2012, Charles filed

a petition to probate the will and codicil. On April 3, 2012, the probate court entered

an order requiring personal service on two of Virginia’s nephews who resided in

Georgia – Dr. Samuel Richwine and Joseph Richwine. The order also required service

by registered or certified mail on Virginia’s sister Eugenia Pitts, and her nephews,

Jack Childs and David Richwine, who all lived out of state. That same day, the

probate court also entered an order requiring Jack, David and Eugenia to file any

objections to the petition within 13 days or within 10 days from the date of receipt as

shown on the certified or registered mail return receipt. 

A copy of the petition to probate was sent by certified mail to Jack at his

residential address in Carlsbad, California. On April 9, 2012, the copy was delivered

to Jack’s residence and was signed for by his wife, Barbara. Thereafter, on April 23,

2012, Jack filed a caveat and objection to the petition to probate, contending that the

2004 codicil was “fraudulently procured through undue influence.” 

On January 17, 2013, Charles filed a motion pursuant to OCGA § 53-11-10 to

dismiss Jack’s caveat as untimely filed. On February 19, 2013, Jack responded to the

motion to dismiss, and filed a separate motion to open default for failing to file a

timely caveat. 
5

Jack attached an affidavit to his motion to open default, averring that he was

away from his residence on an overseas business trip from April 7 through April 18,

2012. Jack further averred that he had no actual notice of the petition to probate until

he examined his mail on April 19, 2012, and he filed his caveat as soon as he was

able to on April 23, 2012. 

The probate court subsequently granted Charles’s motion to dismiss Jack’s

caveat, finding that the deadline for Jack to file an objection to the petition to probate

was April 19, 2012 (ten days from the April 9 date shown on the certified mail return

receipt), and Jack did not move to open default during the 15 days in which he could

have opened default as a matter of right. The probate court further found that Jack

was aware of the timeliness issue because Charles included language in his responses

to Jack’s discovery requests about not waiving the right to raise and challenge the

timeliness of the caveat. Finally, the probate court found that Jack failed to explain

why he waited more than ten months before filing his motion to open default, and he

failed to show excusable neglect, providential cause or a proper case to open default.

Contrary to Jack’s contention, the trial court did not err in dismissing his caveat

as untimely. 
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The nature of the probate court’s discretion regarding the timing

of responses to petitions to probate . . . is statutory. OCGA § 53-11-5

provides, in relevant part: The probate judge may extend the time to

respond with respect to any proceedings covered by this chapter as the

judge may determine to be proper in the interests of due process and

reasonable opportunity for any party or interest to be heard. OCGA §

53-11-10 (a) further states: Except as otherwise prescribed by law or

directed by the judge pursuant to Code Section 53-11-5 with respect to

any particular proceeding, the date on or before which any objection is

required to be filed shall be not less than ten days after the date the

person is personally served.

(Punctuation omitted.) English v. Ricart, 280 Ga. 215, 216 (1) (626 SE2d 475)

(2006). Here, in accordance with OCGA § 53-11-10 (a), the probate court’s order

required Jack to file his objection to the petition to probate no more than 13 days from

the April 3, 2012 date of mailing of the notice or within 10 days from the April 9,

2012 date of receipt of notice as shown on the certified mail return receipt. 

Jack admits that he was a resident of the State of California when the notice of

the probate court’s order was received at his residence by certified mail on April 9,

2012. Jack nevertheless argues that the trial court should have allowed him 30 days

to file his caveat because he was temporarily out of the country on a business trip.
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Although OCGA § 53-11-10 (a) provides for a 30-day objection period for

persons who are outside the continental United States, the only reasonable

interpretation of that statute is one in which the extended 30-day objection period

applies to persons residing outside the continental United States. There is no dispute

that Jack was served within the continental United States. Moreover, this Court has

previously upheld service on a defendant at his residence by handing a copy to the

defendant’s wife, even though the defendant was temporarily working outside the

country. See Goldberg v. Painter, 128 Ga. App. 214 (196 SE2d 157) (1973). Jack

cites to no authority, and we have found none, providing that his temporary absence

from his California residence entitled him to additional time to file his caveat.

Accordingly, the trial court did not err in dismissing Jack’s caveat as untimely filed.

3. Jack also contends that the trial court erred in denying his motion to open

default. We discern no error.

Pursuant to OCGA § 15-9-47, the probate court had discretion to open default

for providential cause or excusable neglect prior to admitting the will and codicil to

probate. In reviewing the probate court’s decision on a motion to open default, “we

must determine whether all the conditions set forth in OCGA § [15-9-47] have been

met and, if so, whether the [probate court] abused its discretion based on the facts
1

 Jack argues that Charles buried the statement regarding the reservation of his

right to raise and challenge the timeliness of the caveat in prefactory language to his

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peculiar to [this] case.” (Citation and punctuation omitted.) Vibratech, Inc. v. Frost,

291 Ga. App. 133, 144 (2) (661 SE2d 185) (2008).

[T]his Court has recognized a number of factors for determining

whether opening default would be appropriate in a particular case,

including: whether and how the opposing party will be prejudiced by

opening the default; whether the opposing party elected not to raise the

default issue until after the time under OCGA § 9-11-55 (a) had expired

for the defaulting party to open default as a matter of right; and whether

the defaulting party acted promptly to open the default[.] . . . Further,

any additional delay occasioned by a failure to file promptly for opening

default upon its discovery can be considered in determining whether[the

defaulting party’s] neglect was excusable.

(Citation omitted.) Vibratech, supra, 291 Ga. App. at 145 (2).

Here, it is undisputed that Jack did not move to open the automatic default as

a matter of right within the 15 days provided under OCGA § 9-11-55. Moreover, the

record shows that Jack waited more than ten months, until February 19, 2013, to

move to open the default, even though he had notice at least as early as November

2012 that Charles had reserved the right to raise and challenge the timeliness of

Jack’s caveat.1 Finally, as the trial court found in its order denying Jack’s motion to
discovery responses. Our review of these discovery responses, however, shows that

the reservation of rights was clearly and expressly set out on the first page of each

responsive pleading. 

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open default, Jack failed to provide a reasonable excuse for the delay in filing his

motion to open default, particularly after he had notice that Charles might challenge

the timeliness of the caveat. Accordingly, Jack cannot show that the probate court

abused its discretion in denying his motion to open default. See Vibratech, supra, 291

Ga. App. at 146 (2).

4. In light of our holding in Divisions 2 and 3 above, we need not address

Jack’s additional enumeration of error. 

Judgment affirmed. Doyle, P. J., and Dillard, J., concur.