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Porter-Martin v. Martin

O.C.G.A. § 9-11-60 d does not authorize a substantive correction to a final divorce decree without an order setting aside the judgment.

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In this discretionary appeal, Allison Porter-Martin “Wife” contends that the trial court erred by granting Steven Martin’s “Husband” request to correct the amount of his income set forth in a final decree of divorce pursuant to OCGA § 9-11-60 d without setting aside the judgment. Because OCGA § 9-11-60 d does not authorize a substantive correction without also setting aside the judgment, we reverse. The record shows that, on January 30, 2003, the parties were divorced pursuant to a final decree which incorporated a separation agreement entered into the prior day. In the final divorce decree, Husband’s gross income was purposefully listed as $160,000 annually,1 and he was required to pay child support in the negotiated amount of $3,250 per month. It is undisputed that Husband received a copy of the divorce decree after it was filed, and he raised no objection at that time to the amount of his gross income stated therein. Over two years later, however, Husband filed a motion to set aside and correct the final divorce decree pursuant to OCGA § 9-11-60 d, arguing that the amount of his income had been stated as $160,000 due to a mistake or accident.

The subsequent hearing on Husband’s motion, however, unequivocally shows that Husband was not asking the trial court to set aside the judgment of divorce pursuant to OCGA § 9-11-60 d as his motion purported; instead, he merely wanted the trial court to correct the amount of his gross income while allowing the judgment to stand. In its order, after citing OCGA § 9-11-60 d, the trial court granted Husband’s request to correct the divorce decree, but it did not set aside the judgment.

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