Mark Anthony Edge (Husband) and Marilyn K. Edge (Wife) were divorced on December 19, 2007. On March 17, 2008, Husband filed a complaint for a downward modification of his child support obligations to Wife. On March 25, 2008, Wife filed an answer and counterclaim for an upward modification of child support, and, on July 7, 2009, Wife filed a motion for contempt, contending Husband had failed to properly make required support payments. On January 12, 2009, Husband traveled to Afghanistan for his employer. Prior to leaving, Husband informed his attorney of his correct Atlanta address. On June 15, 2009, Husband’s counsel filed a motion to withdraw but included an incorrect address for Husband in her motion. On September 8, 2009, the trial court held a hearing on the case. Husband, who was in Afghanistan, did not appear; however, Husband’s attorney did appear, moved for a continuance, and asked that her motion to withdraw be granted. The trial court entered an order allowing Husband’s counsel to withdraw, and a new hearing was set for October 26, 2009. Husband’s counsel sent notice of her withdrawal to Husband’s correct address, but the notice for the October 26 hearing was sent to the incorrect address on the motion to withdraw. Husband was still in Afghanistan and claims that he never received actual notice of the hearing.
On October 26, 2009, the trial court conducted the hearing and entered a final order, holding that Wife should have sole legal and physical custody of the parties’ children, Husband’s right of visitation should be eliminated, Husband should be held in contempt for failure to pay child support, Husband’s child support obligations should be increased, and Husband should pay Wife’s attorney fees. Husband maintains that he first learned about this ruling when his employer received an income deduction order dated November 5, 2009. On November 23, 2009, Husband filed a motion to set aside the trial court’s order pursuant to OCGA § 9-11-60 (d) (2), arguing that his lack of notice was the result of his attorney’s mistake in putting an incorrect address for Husband on her motion to withdraw. Subsequently, Wife filed a motion for summary judgment and a
1. As an initial matter, we point out that this case does present a child custody matter subject to direct appeal pursuant to OCGA § 5-6-34 (a) (11). Generally, an order granting a motion to set aside leaves the case pending below and so must be appealed utilizing the interlocutory appeal procedures of OCGA § 5-6-34 (b) (where the trial judge issues an order “not otherwise subject to direct appeal” the party seeking to appeal must obtain a certificate of immediate review and file a petition for interlocutory appeal). See also White v. White,
Furthermore, an action seeking to change visitation qualifies for treatment as a “child custody case.” See Dennis v. Dennis,
2. The trial court’s ruling on Husband’s motion to set aside was erroneous. OCGA § 9-11-60 (d) (2) provides: “A motion to set aside may be brought to set aside a judgment based upon . . . [fjraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” Under the circumstances of this case, Husband did not provide the trial court with an appropriate basis to set aside its final order pursuant to this particular statutory provision. To establish mistake, Husband cannot rely on the mistake of his own counsel as if his counsel were acting adversely to him, rather than as his representative before the court. To the contrary, counsel’s actions are generally attributed to his or her client, and this case is not an exception to this rule. It has previously been held that trial counsel’s inexcusable neglect in filing no answer at all is insufficient grounds to set aside a judgment. Arnold v. Ga. Dept. of Human Resources,
Judgment reversed.