*1 (c). reminded of his duties under Bar Rule 4-219
Voluntary accepted. surrender license All the Justices concur. of 1,
Decided March 2010. Frederick, Bar,
Paula J. General Counsel State Jonathan W. Hewett, Assistant General Counsel Bar, State for State Bar of Georgia.
S09F1798. ELLIS v. ELLIS.
Melton, Justice. action, In this divorce which falls under this Court’s Pilot (“Wife”) Project, Bonnie Lou Ellis contends that the trial court erred by conducting entering judgment a final in her absence and a (“Husband”). pleadings on the in favor of Otis Dan Ellis Because thereby Wife filed no a notice of hearing, we affirm. complaint The record shows that Otis Dan Ellis filed a represented 2008, Ellis, divorce June and Bonnie Lou who was not acknowledged complaint time, counsel at the service of Husband’s any responsive pleading. eventually but failed to file retained entry appearance Law, Mr. who filed his of on Wife’s behalf August responsive on However, 2008. Mr. Law did also not file a pleading provided ultimately complaint. attorney, to Husband’s Husband’s Turner, Mr. hearing,
Mr. Law with a notice of the final which was depositions February continued, were scheduled for According attorney, agreed 2009. Mr. Turner him inform rescheduled date for the final after it had been set depositions taking place, attorney, the court.1 Prior to the another entry appearance Ms. filed an on behalf of Husband,2 and she moved the trial court to enter a final divorce pleadings holding evidentiary hearing. Later granted month, the court Husband’s motion.3 testify Mr. Turner did not at the motion for new trial Sheppard’s appearance longer partici After Ms. in the it seems Mr. Turner no
pated; however, case, any. the record is unclear Mr. Turner’s continued role in the if 3 Although action, judgment may 19-5-8, no default be in a entered divorce see OCGA (a) pleadings may on the be entered certain circumstances. OCGA 19-5-10 provides: responding party, In divorce cases which are not defended shall legal by proof determine that the asserted for divorce are and sustained *2 February for new trial on 2009, Mr. Law filed a motion
On by alleged agreement relying made Mr. Turner Wife, on the behalf of hearing superior any provide date. The of holding him with notice to counsel could not motion, that Wife’s this court denied give properly notice because she to the court failed contend that irrespective pleadings, failing any responsive by file notice to agreement between counsel. outside “[w]hen general fails to in a divorce action rule, a defendant As a pleadings, definition, is, uncontested. the divorce defensive file pleadings waiver of notice constitutes to file defensive Failure hearing omitted.) (Citations Hardwick v. final decree.” on the § 9-11-5 570, 571 (a) provides: pleadings party [T]he in action shall file an failure of a to
. . .
notices,
all
him or her of
to be a waiver
be deemed
entry
place
including
of trial
notices of time and
except
judgment,
action,
service of
in the
and all service
pleadings asserting
for relief. . . .
or additional claims
new
regarding the final
case, Wife waived
notice
Therefore, in this
responsive pleading,
hearing by failing
and the trial court
to file
for a new trial.
denied her motion
arguments,
Contrary
Anderson,
Ga. 88
Anderson
240) (1994)
Green,
In attorney subsequently thereafter with- state, and her moved out of plaintiff unrepresented and out of was from the case. While drew “extraordinary attorney efforts ... used state, the defendant’s unrepresented party bring th[e] in the absence of the case to trial [he] We found that out of this state.” Id. at 552. knew to live whom discharge duty evidentiary attorney him. An appoint of the court shall for divorce and for of the existence of for the determination custody alimony, support, and other issues child and child of issues of determination held, evidentiary hearing required. If the determination but not no is authorized party, may upon pleadings one or more the verified of either of affidavits, matters be made such proper procedure in the court deem its other basis or or such discretion. required that, notions of fundamental fairness in certain circum- represented party “assum[e] stances, counsel of a must the burden notifying by any unrepresented opposing party mail when their (2). appears case on a trial calendar.” Id. at 555 We further held “[g]iven especially that, Green all the circumstances of this lengths appellee’s to which counsel went to ensure that this case appellant,” required [the] was tried the absence of
of divorce to be set aside. Id. Green,
Unlike this case involves a defendant who failed to file unrepre- but later retained not an plaintiff prevented receiving sented who was from notice of a trial extraordinary measures. clearly
The Green Court was concerned about counsel’s facing unrepresented party. [Wife] action when Here, . . . [ultimately] represented, [Husband’s]
was counsel was having engaged negotiations [Wife’s] aware, well with attorneys required noted, counsel. As Green are not to make opposing parties. the interests of their clients subservient to [Cit.] represented, [Wife] [Husband’s] As was counsel could rely upon [Wife’s]counsel to consider and advise [Wife] filing responsive on such matters as the effect of not pleadings. 807) (2000) (refusing Lucas, 240,
Lucas v. 273 Ga. to extend Green to a defendant not otherwise entitled to notice under supra). Moreover, [t]his supra], Green[, case is not like or Crenshaw v. Cren
shaw, cases, In those we plaintiff brought repre suit, held that the who and was not hearing, sented counsel at the time of the was entitled to given hearing by opposing be notice of the counsel. Unlike a responsive pleading, plaintiff who file a does not defendant (d). Thus, does not waive all notices. Cf. plaintiffs [Wife] case,
unlike in this in Green and Cren- right shaw did not waive their to be notified of the time of trial. (Emphasis supplied.) James, James v. 165-166 506) (2002). Therefore, above, for all the reasons set forth Wife notice of the final in this divorce and the by denying
trial court did not err grounds. her motion for new trial on those argues ruling The dissent the trial court’s was entered argument matter, As an initial is incorrect. This
without evidence. sufficiency challenged In her motion of the evidence. Wife has not trial, in this on the motion for new trial, her for new appeal, proper only argued notice of she did not receive has claim conclusion on a Therefore, dissent bases its a final even before this Court. that is not “[satisfactory proof readily acknowledges,
As the dissent pleadings, complaint may allegations of verified consist of the divorce Citing evidentiary testimony, forms.” affidavits, or similar live §§ trial that the The dissent concedes 19-5-8, 19-5-10 complaint verified based on Husband’s entered its responses Affidavit. Husband’s Financial his Domestic Relations provided interrogatories The to the trial court. were also categorized primary assets as Affidavit Domestic Relations divorce, premarital a final In his motion for assets. remaining in his marital asserted that all Husband further belonged possession to him. Even filed time that motion was at the *4 pleadings though properly notice of the and on served with these responsive attorney allegations no therein, filed to Wife’s sworn challenge any materials, pleading these evidence. Based on of this to “that the asserted determined the trial court upon [based] by proof legal the verified are and sustained divorce pleadings party, affidavits, or such other basis one or more of either may proper procedure in its discretion.” deem as the court (Emphasis supplied.) The trial court did what 19-5-10 exactly required two cases cited do, as stated was to it contrary Youmans, 247 conclusion. See Youmans for the dissent (1981); Harris, Harris v. 530, Ga. n. 562, 563 trial hand, now finds fault with the dissent, on the other The upon. doing so, dissent In the evidence it relied court’s order and judges reasoning impropriety Hus- and to the trial court’s ascribes Regarding credibility court, the dissent the trial and motives. band’s approved “unquestioningly argues drafted the divorce decree it everything attorney,” “gave wanted,” and he Husband Husband’s responsive pleadings entitled file that “Wife’s failure to believed be divided.” should to decide how the Husband This broad improper assumption has no basis trial court behavior directly of review. With with the standard record and conflicts credibility question, regard into Husband, draws his the dissent improper implicitly assigning manner in which he motives to the assumptions making completed that there his financial affidavit provide the trial that he failed to must have been additional evidence appellate Again, review, as we our standard court. this exceeds assump- credibility regarding nor create neither make decisions (1) support holdings. e.g., See, tions to our Wood, Woodv. (a) (655 611) (2008) (this evidence). reweigh Court does not The bottom line in this case is that the trial court had evidence on ruling.4 which to base its inappropriately reweighs
In manner, a similar the dissent give proper evidence to conclude that Husband failed to notice argues clearly of a final distinguishable holding in this case. The dissent that the supra,
in Anderson, should be extended to Sheppard’s the cover this case “where swift efforts to obtain a final — quite apart without notice to Wife or her counsel from any agreement Sheppard’s the existence of between counsel or — knowledge appear alarmingly calculated, thereof not deliber- if ately blind-siding.” (Emphasis supplied.) appropriate This is not an appellate ruling. basis for an The trial court considered arguments below, evidence on this briefs, evidence, issue both in specifically made at a motion for new trial It “ lawyers [a]ll stated in its order that in this matter are well known [trial court] legal honorable, reliable members of the profession.” By stating otherwise the actions of disregards finding the dissent the trial court’s of fact and substitutes one of its own. Judgment except concur, Hunstein, All the Justices affirmed. Carley, J., J., Benham, J.,
C. P. who dissent. dissenting. Justice, Chief
HUNSTEIN, *5 following respectfully For the I reasons, must dissent. judgment “[n]o by 1. isIt axiomatic that verdict or default shall any [divorce] regardless be taken in Rather, case.” OCGA 19-5-8. litigates
of whether the defendant files an answer or otherwise the grounds case, “the shall determine that the asserted (a). legal by proof.” divorce are and sustained though Indeed, “even notice of the on the final decree is by responsive pleadings, allegations failure to file the of the petition [Cit.]” must still be established evidence. Youmans v. (276 837) (1981). Youmans, 529, 530, 247 Ga. 1n. SE2d Accord (2) 139) (1972) (even Harris, Harris v. 228 Ga. 563 pleadings filed, where no defensive trial court must “hear evidence finding . . . and make an affirmative therefrom that the are legal by proof’). and are sustained
Satisfactory proof allegations complaint of the of the divorce 4 reason, judgment For this there was no default in this and the outcome of this decision, dissent, contrary arguments way preserve to of the in no fails to or defend the statutory prohibition judgments on default in divorce cases. testimony, pleadings, affidavits, or similar live of verified consist §§ evidentiary Here, the trial 19-5-8, 19-5-10 forms. OCGA holding judgment without motion, entered
court, evidentiary hearing. Husband’s solely thus consisted in the record The evidence accompanying complaint two-page domes- verified of Husband’s property, Regarding division of financial affidavit. tic relations acquired complaint only certain “the have avers equitable [Husband] property, distribu- entitled to an which yields little addi- financial affidavit domestic relations tion.” The only parties’ property, it includes about the tional information separate property. designated Thus, there is no as Husband’s assets parties’ type marital or value of the evidence of record property — given parties’ some, have existed of which there must — separate property marriage any 14-year approximately or of owned Wife.5 appar-
Notwithstanding evidence, court, the trial this dearth ently failure to file of the belief that Wife’s parties’ be should how the Husband to decide entitled divided, approved unquestioningly decree drafted the divorce surprisingly, attorney. awarded Husband the decree Not Husband’s essentially prop- excluding only personal estate, marital the entire any possession erty Wife had withdrawn cash then in Wife’s filing joint prior divorce to the accounts from the complaint. Simply everything gave Husband stated, the trial court finding support such wanted, evidence to he without §§ Doing equitable. 19-5-8, clear error. OCGA so was division was (a); supra, supra, Harris, 228 Ga. 530; at Youmans, 19-5-10 (2). at 563 majority opinion other- militate cases cited None of the involved the of those cases wise, is no indication that as there entry addressed evidence-,rather, those cases without propriety entering only See James v. without notice. (wife 506) (2002) granted divorce James, Ga. 165 807) (2000) trial); following Lucas, Ga. 240 Lucas v. (no evidence); judgment granted other indication *6 184) (1980) (same). 570 SE2d v. 245 Ga. Hardwick only propriety majority opinion the of itself examines Likewise, the considering entering judgment the Wife, notice to without without entering judgment appropriateness in absence of evidence the of 5 interrogatories, responses which the record does include Husband’s While company in which Husband property Georgia in and Florida and a construction reference real interest, ownership responses do not constitute are not verified and thus these claims LLC, Georgia, Group 291 Ga. Properties, Food Traditional Inc. v. evidence. See Performance evidence). 250) (2008) (unverified discovery responses not App. answer and supporting disposition. doing, merely perpetuates the In so it the case, error in this to Wife’s severe detriment. statutory prohibition judgments
The in on default divorce cases legislature’s recognition divorce, attests to the which necessar- ily importance involves issues of substantial to the fundamental well-being parties simply involved, is different than other civil generally Jolley Jolley, actions. See
(1960) (state public particular in have interest institution of marriage). Permitting the issuance of a divorce without evidence to justify in the manner which the decree reorders the basic Moreover, evidence, affairs trivializes the stakes involved. without a simply prescribed adjudicating trial court cannot fulfill its duties in example, the involved, issues before it. For where children are a trial simply duty promote cannot fulfill its to the children’s best relationships interests without evidence between the parties particular children, children, and their needs of the parties post- in the circumstances which each of the will be left Likewise, evidence, divorce. See OCGA 19-9-3 determination as to a appropriate support impossible. child See (b) (calculation support requires of child evidence parties’ gross expenses). income and Even where the have equitable children, no necessarily requires as in this division of support evidence to the conclusion that equitable. generally in is, fact, Stokes, division made See Stokes v. reasons, For these it is of the importance preserve statutory utmost that this Court defend and prohibition judgments on default in divorce cases. if
2. Even the trial court had considered evidence that supported findings in decree, the divorce I would still find the brought disposition manner which this case was to final to have patently undisputed been unfair under the circumstances. The counsel, Law, evidence establishes that Wife’s Hammond received express Turner, assurances from Husband’s first Brett give final Turner would matter Law notice of scheduled notwithstanding failure file an Wife’s answer to Husband’s complaint for divorce. Law testified at the motion for new trial given that, resources, limited his client’s he endeavored to preparing filing avoid the what costs he considered would be “pro by securing agreement forma” Turner’s answer that Wife’s obligation failure to file an notify would not answer obviate Husband’s regarding any Husband has adduced no dispute agreement,6 evidence to the existence of such an which was *7 6 Though expressly recognized by it was and the trial court that Turner’s by ongoing correspondence
implicitly
between Law and
corroborated
scheduling
deposition
and
mediation and
Turner
exchange
evidencing
interrogatories
responses,
Wife’s intent
and
acknowledgment thereof.
and Turner’s
to contest the divorce
recognized
previously
made
an assurance of notice
We have
party
file
a
who failed to
a trial
provision
justify
in
of notice
avoidance of the waiver
sufficient to
(441
(a).
Anderson,
In because the divorce decree is testimony significant, Carol did would be Husband’s second as to this issue expressly trial consented not secure Turner’s attendance at the motion for new testimony. making benefit of his to the trial a decision without the the record court’s *8 violated basic of this case resolution manner of and because respectfully professionalism, dissent. I must and of fairness notions Carley Presiding Justice to state I am authorized join in this dissent. Benham Justice February 1, 2010
Decided 15, 2010. March denied Reconsideration appellant. George Law, III, for H. Law Whitmer & appellee. MacDonald, Hill, Brad E. VicB. Carol S. v. GARDNER. THE STATE
S09G1210.
(690 SE2d HUNSTEIN, Chief Justice. alleged 17-8-57.1 OCGA violation of involves This case arising charges armed from the Marquez was tried Gardner exami- beauty the direct robbery concluded As the State salon. exchange place: following took witness, the its first
nation of you? person [H]e robbed who came is the Q: Yes, sir. A: Judge. have, all we That’s
STATE: got he a twin.
A: Either you prove venue? Did Prove venue. THE COURT: yet. I not as of have STATE: go Why do that ahead and don’t we
THE COURT: forget it. before we Muscogee Beauty Shop, Stylistic within is that
The Q: County? yes, Oh, sir.
A: right. All
STATE: Counsel.] [Defense
THE COURT: you, sir. Thank
DEFENSE: provides: § 17-8-57 express intimate his any judge criminal case ... error for It is guilt proved of the accused. or as to not been opinion what has or has as to section, be held shall the violation this Code violate Should reversed, in the case Appeals and the decision to be error Supreme or Court of Court Supreme directions as granted below with such in the court a new trial lawfully give. Appeals Court or Court