FOURTH D IVISION DOYLE , P. J., MILLER and DIL LA RD, JJ.

. N O TICE: Motions for reconsideration must be

p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 15, 2014



## In the Court of Appeals of Georgia
A14A0037 . IN RE: ESTATE OF LOYD. M ILLE R , Judge. In March 2012 , Charle s Bentley Childs, S r., as executor , filed a petition to probate Virginia Childs Loyd’s last will and testam ent, as well as her

codicil to t

he will. Loyd’ s nephew, Jack Child s, filed an untim ely c aveat, o bjecting to the petit

ion
on the ground of

undue influence. Cha

rles moved to dism

iss the untime ly ca

veat, an d Jack responded with a m otion to open d efault pur suant to OCGA §§ 15-9-47 a nd 9- 11-55 (b). The trial court granted Ch arles’ s motio n to dismiss, and Ja ck appeals , contending

that the tr

ial court erred in dis missin g his cavea t a s un timel

y, f ailing to grant him an extension to file a ca veat and denying his m otion to open d efault. For th e re aso ns th at f

ol lo w, we aff

irm.2

1. Before tur

ning to the merits of Ja ck’s appeal, w e must first exa mine t his Court’ s jurisdi ction over this appeal
.

Itis the duty

of this Cour

t on its own m

otio n to inquire into its jurisdic tion. The Constitution of th e State o f Georgi a of 1983, Article VI, Section VI, Paragraph II I (3), c onfers upon

the Supre me C ourt of Georgia jurisdic tionin all cas es i nv ol vi ng wil ls . Th e Su pre me Court of Georgia has interp reted this language t o mean only those cases where the validit

y or c onstruction

of a will is the m ain issue on appeal. (Citation s and punctua

tionomitted.) In re Est

ate of Fark

as , 325 Ga. App. 477, 478 (1) (753 SE2d

137) (2013) . Here , the issue s on appeal concern t he tim eliness of

the caveat and whether Jack

was entitled to open default. Since the issues do not concern the validity

or constru ction of

the will o r codicil, we have jurisdic tionover the a ppeal. Id. 2. Jack f

irst conte nds that thetrial cour t erred in dismi ssing his ca veat a s untimely. We disagree. O CGA § 15- 9-47 provides for automatic default in pending probate court procee dings if an answer, caveat, or other responsive pleading has not been filed within th e ti me required

by law or by lawful or der of the court. N everthel ess, at a

ny3

ti me before f

inal judgm

ent, the p robate co urt, in it s discreti on, and upon pay ment o f costs may

allow the

de fault to open for provi dential ca use preven

ting the filing of required pleading s or for ex cusable neglect or where the judge, from all the facts, shal l determ ine that a proper ca se has bee n made for the default to open, on terms t o be fix ed b y the c ourt. In o rder for the default to be thus opene d, the showing shall be m ade under oath, shal l setup a m erit orious defense, shal l offer to plead inst anter, a nd shall announce ready to proceed with the hearing in the m atter. OCGA § 15-9-47. We wi ll not distur b the probat e court’ s ruling on a motion to open default, absent an a

buse of disc retion. See Simmons v. Har ms , 287 Ga. 1 76, 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 sha

res to her sisters, Doris Ri chwine a

nd Eugenia

Pitts, her brothers, Charles and Mobley

Childs, and her nephew, Jack Childs. The will also nam edJack
as Lo yd’s personal representative. In October 2004, Loyd e xecuted 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 o r provisi on of my Will.”4

Loyd diedon December

24, 2011. Thereafter, on March 30, 2012, Charles filed
a petition to probate th e will and co dicil. On April 3, 2012, the probate court entered
an order re quiring per so nal serv ice on two of Virginia’s ne phews who resided in Georgia – Dr. Samuel Richwine and Josep h Richwine. Th e order al so required service by registered or cer

tified m ail on Vir ginia’s sister E

ugenia Pit

ts, and he r nephew s, Jack Childs and D avid Richw ine, who all lived ou t of state . That s ame day, the probate court also entered a n order re quiring Jac k, David and Eugeni a to file a

ny objectio ns to the petition w ithin 13 day s or within 10 days from the date of receipt as shown on the certifi ed or regis tered mail return receipt. A copy of

the petitio n to probate

was sent by cer

tified m ail to Jack

at his residential address in Carlsbad, California. On April 9, 2012, the copy was delivered to Jack’s residenc e and

was signe d for by

his wife , Barba

ra. Th ereafter, on Apr

il 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, 20 13, Charles filed a motion pursuant to OCGA § 53-11-10 to dismis s Jack’s caveat as untimely filed. On February

19, 2013, J ack respo nded to the motion to dismiss, and f

iled a separate motion to open default for failing to file a timely caveat.5

Jack attached an affidavit to his motion to opendefault, averring that he was away from his residence on an overs eas busines s trip from April 7 th

rough Apri l 18, 2012. Jack furt

her aver red that he

had no actu al notice o f the petit ion to probate unt

il h e e xamined his mail on April 19, 2012, and he filed his cavea t as soon as he was able to on April 23, 20 12. The probate c ourt subsequ ently g ranted Ch arles’ s motio n to di smiss J ack’s caveat, finding tha

t the deadl ine for Jack to file an objectio n to the peti tionto probate
was April 19, 2012 (ten days from the April 9 date shown on the certified mail return receipt), and Jack di d not mo ve to open def ault during

the 15 day s in which h e could have ope ned def

ault as a matter of right. T he probate court further found that Jack
was awareof the tim

eliness iss ue because C harles inc luded language in his responses to Jack’s discovery

requests a

bout not waiving the rig

ht t o rais e and chal lenge the timel iness of t he c ave at. F ina lly, the probate court found that Jack fai led to explain why he waite d more

than ten m

onths before filing his motion to open defa

ult, and he failed to show excusable neglect, providential cause or a proper c ase to open defa ult. Contrary to Jac k’s contention, the trial court did no t err in di smissing his caveat as untimely.6 The nature of

the probat e court’ s discreti on regard ing the tim

ing of responses to petitions to pr obate . . . is statutory. O CGA § 53-11-5 provides, in releva

ntpart: Th e probatejudge m ay ext end the tim

e to respond with respect to any p roceeding s covered by this chapter a s the judge may

determ ine to be pr

oper in t he intere st s of due pro cess and reasonabl e op portuni ty for any party or interes t to be heard . OCGA § 53-11-10 ( a) furthe r states: Except a s otherwi se prescr ibed by law or directed by the judge pursuant to Code Sec tion 53-11-5 with respect to any particular proceeding, the date on or before which any objecti on is required to be file d shall be no t less than ten da ys af ter the da te the person is personally

served. (Punctuat ion omitted.) English v. Ricart , 280 Ga. 215, 21 6 (1) (626 S E2d 475) (2006). Here, in accordance wit h OCGA § 53-11-10 ( a), the probate c ou r t’s order required Jack to fi le his obj ection

to the petit

ion to probat e no more

than 13 day s from th e Ap ril 3, 2012 date of m ailing of th e notice or

within 10 da

ys fr om the April 9, 2012 dat e of receipt o f notice as shown on t he certified mail return receip t. Jack admits that he was a resident of the State of C alifornia whenthe notice of the probate court’s order was received at his reside nce by

certifi ed mail on April

9, 2012. Jack neve rtheless a rgues that the trial court should

have allowed

him 3 0 da ys to file his caveat be cause he w as tem porarily out of the c ountry

on a business trip.7

Although OCGA § 53-11-10 ( a) provide s for a 30- d ay obj ection per iod for persons who are outside the conti n ental Uni ted State s, the only reasonabl e interpre tation

of that sta

tute is one in which the

extended 30 -day objection perio d applies to persons residing outside the continental United States. There i s no dispute that Jack was served

within the

continental United States. Moreover, this Court has previously

upheld service o n a defendant at his res idence by

handing a c opy to th e defen dant ’s wi fe, even though t he defenda

nt was tem

porarily working out side the
cou ntr y. See Goldberg v. Painter , 128 Ga. App. 214 (196 SE2d 157) (1973). Jack cites to no auth ority, and we have found none, providing that his temporary absence from his Calif

ornia res id ence entitled him to a dditional ti me to file his c aveat. Acco rdi ngl y, the trial cour t did not err

in dismis sing Jack’ s caveat a s untim ely f iled. 3. Jack also c ontends 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 providentia

l cause or excusable

neglect pr

ior to adm

itting the w ill and

codicil to probate. In revie wing the pr obate cour

t’s dec ision on

a mot ion to open de fault, “we must determine whether all the conditions set forth in OCGA § [15-9-47] have been met and, if s o, wheth er the [p robate co urt] ab used its discr etion based on the fac ts1 Jack argues that Charles buried the statement regar

ding the re servation of his right to raise a nd challeng e the time liness of the cavea t in prefa ctory

language t o his 8 peculiar to [this] cas e.” (Citation and punctuation omitted.) Vibratec h, Inc. v. Fros t , 291 Ga. App. 133, 144 (2) (661 SE2d 185) (2008).

[T]hi s Court has r

ecognized

a numb er of

factors for dete rmining whe ther opening default would be appropriate in a particular case , includi ng: whether

and how the

opposing par

ty wi ll be prej udiced b y opening the default; whether the opposin g 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 def

ault as a matter of right; and whether the defa ult ing part y acted promptly to open the default[.] . . . Further, any additional delay

occasione d by a f

ailure to file prom

ptly f or opening default upon its disco very c an be consid ered in de termining wheth er [th e defaulting party’s] neglect w as excusable. (Citation omitted.) Vibratech , supra, 291 Ga. App. at 145 (2). Here, it is undisputed that Jack d id 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 m onth s, until Fe

bruary 19, 2013, to
moveto open th e default, e ven though he had notice at least as early as Novem ber 2012 that Charles had reserved the right to raise and chal lenge t he tim eliness of Jack’s caveat. 1 Finally, as the trialcourt foun d in its orde r deny ing Jack’s motion todiscovery

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 e ach responsi ve pleadi ng. 9 open default, Jack fail ed to provide a reasona

ble excuse

for the de lay in filing his motion to open default, particularly after he had notic e that Cha

rles m ight challenge the timeliness of the cav eat. Accord ingly, Jack cannot show that the probate court abused its discre tion in deny ing his motion to open default. See Vibratech , supra, 291 Ga. App. at 146 (2). 4. In light of our holding in Division s 2 and 3 above , we ne ed not addre ss Jack’s addit ional enu meration of error
. Judgment a

ffirmed. Doyle, P. J. , and Dill ard, J., concur .