Thus, the trial court may hear evidence to determine the defense in abatement or may defer such determination until trial. OCGA § 9-11-12 (d); Hardy v. Arcemont, 213 Ga. App. 243 ( 444 S.E.2d 327) (1994); Myers v. McLarty, 150 Ga. App. 432, 433 ( 258 S.E.2d 56) (1979); Marvin L. Walker Assoc. v. A. L. Buschman, Inc., 147 Ga. App. 851, 852 (1) ( 250 S.E.2d 532) (1978). Likewise, the trial court must determine such factual issues as to jurisdiction in a motion to set aside judgment.
Thus, the trial court may hear evidence to determine the defense in abatement or may defer such determination until trial. OCGA § 9-11-12 (d); Hardy v. Arcemont, 213 Ga. App. 243 ( 444 S.E.2d 327) (1994); Myers v. McLarty, 150 Ga. App. 432, 433 ( 258 S.E.2d 56) (1979); Marvin L. Walker Assocs., Inc. v. A. L. Buschman, Inc., 147 Ga. App. 851, 852(1) ( 250 S.E.2d 532) (1978). Likewise, the trial court must determine such factual issues as to jurisdiction in a motion to set aside judgment.
O.C.G.A. § 9-11-24 (a) (2); In re Ashmore, 163 Ga. App. 194 ( 293 S.E.2d 457) (1982) (any interested party may file objection to legitimation petition). See also Hardy v. Arcemont, 213 Ga. App. 243, 246 (3) ( 444 S.E.2d 327) (1994).Macuch v. Pettey, supra at 469; Miller v. Charles, supra at 387-388.
The public policy of this state favoring the institution of marriage and the legitimacy of children born during a marriage is the strongest public policy recognized by law. This Court's holding in Hardy v. Arcemont, 213 Ga. App. 243, 245(1) ( 444 S.E.2d 327) (1994), that "(a)ll children born in wedlock or within the usual period of gestation thereafter are legitimate, but the legitimacy of such a child may be disputed; where possibility of access exists, the strong presumption is in favor of legitimacy and the proof must be clear to establish the contrary," citing OCGA § 19-7-20(a) and (b), is but one of the latest of a long series of decisions rendered by the appellate courts of Georgia recognizing this public policy and evincing the commitment of Georgia's courts to enforcing it. "This presumption of legitimacy is one of the strongest and most persuasive known to our law." Stephens v. State, 80 Ga. App. 823, 825 ( 57 S.E.2d 493) (1950).
The 1982 order expressly states that the paternity issue was not decided so the issue was not res judicata. Compare East v. Pike, 163 Ga. App. 374, 376 ( 294 S.E.2d 597) (1982) (paternity issue was decided in previous divorce proceeding and, therefore, was res judicata in the subsequent URESA petition); Macuch v. Pettey, 170 Ga. App. 467, 468 ( 317 S.E.2d 262) (1984); Hardy v. Arcemont, 213 Ga. App. 243, 245 ( 444 S.E.2d 327) (1994); see Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757-758 ( 439 S.E.2d 474) (1994). The trial court erred by dismissing the petition.