Willie James Bolden, who has since died, brought suit to recover one-half of the proceeds of the settlement of a wrongful death action arising out his son Charlie Rhone’s death. Bolden, and later Patricia Bolden his widow as administrator of his estate, alleged, among other things, that Charlie Rhone’s mother, Wyona Rhone, together with her son James Rhone and James’s wife Lorine, damaged Bolden by taking the proceeds for themselves without notice to Bolden. The matter went to trial before a jury in bifurcated proceedings, but the jury ruled in favor of the Rhones. Bolden now appeals the denial of his motion for new trial by challenging several aspects of the trial court’s decision to bifurcate. This is the second appearance of this case in this Court. See Rhone v. Bolden , 270 Ga. App. 712 608 SE2d 22 2004. Bolden and Wyona Rhone were never married, but Bolden’s paternity of Charlie Rhone has been established by an Alabama court. Yet it is undisputed that there are issues of fact regarding the extent to which Bolden helped provide necessaries for the child and the extent to which he was involved in his son’s upbringing. On March 5, 1999, Charlie, a Georgia resident, died intestate at age 27, allegedly as a result of medical malpractice. He had never married and had no children. Following her son’s death, Wyona Rhone filed a wrongful death action and eventually settled with South Fulton Hospital for $1.9 million. James Rhone, acting as Wyona Rhone’s agent, made all the decisions about the litigation. On November11, 2001, the trial court ordered the money be paid as follows: $770,218 to purchase an annuity for the benefit of Wyona Rhone; and $349,700 to James Rhone as administrator of Charlie Rhone’s estate to be used to satisfy debts of the estate, to compensate the administrator for his duties, and to distribute the remaining funds to Charlie Rhone’s heirs pursuant to OCGA § 53-2-1. The sum of $760,000 was distributed as attorney fees for the estate lawyers and the lawyers who handled the wrongful death suit. It is undisputed that Bolden did not get any of the settlement.
Bolden filed the instant action against the Rhones and their attorneys and alleged that the Rhones committed fraud and the attorneys committed legal malpractice, among other things, arising out of their efforts to prevent him from receiving a share of the settlement proceeds.1 Under the applicable law, Bolden had a right to share in the recovery of the wrongful death action. OCGA § 19-7-1 c 2. Even so, the same statute provides that for cases in which the parents are divorced, separated, or living apart, one parent is authorized to move that the proceeds be fairly apportioned based on “each parent’s relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent.” OCGA § 19-7-1 c 6.2 Bolden alleges that he never received notice of the wrongful death suit, and furthermore, that the Rhones concealed it from him and defrauded him by representing to the court in the wrongful death action that Wyona was Charlie Rhone’s “sole surviving parent and sole heir,” so that Bolden would not be notified. By the time Bolden found out, it was too late to intervene in the wrongful death action or to receive any of the settlement proceeds.
