371 S.E.2d 399 | Ga. | 1988
Appellee, Virginia Harris, filed suit for divorce against appellant, Aaron Harris, in April 1987. Appellant neither filed an answer nor made an entry of appearance in the case. Appellant concedes that on at least one occasion the attorney for appellee suggested he file defensive pleadings. No settlement attempts were made by either party. In October 1987 the trial court, following an ex parte hearing, entered judgment granting a divorce and making a division of the parties’ property. Appellant then moved to set aside the judgment, contending that he was entitled to notice of the ex parte hearing. The trial court denied the motion and we granted appellant’s application to appeal.
Appellant argues that he was denied due process of law by not being notified of the hearing because the property division made by the trial court differed from that sought by appellee in her complaint.
Where a party fails to file defensive pleadings in a divorce action, he waives notice of the hearing on the final divorce decree. Carter v. Carter, 244 Ga. 670-(261 SE2d 619) (1979); Harris v. Harris, 228 Ga. 562 (187 SE2d 139) (1972); OCGA § 9-11-5 (a). However, this court has held that a party is entitled to notice of issues not raised in the complaint which are decided by the court in a divorce action, notwithstanding the fact that no answer has been filed. Lambert v. Gilmer, 228 Ga. 774 (187 SE2d 855) (1972). This is so because the complaint does not put the opposing party on notice that he will have to defend against these issues.
In this case paragraph five of appellee’s complaint provided, “[Appellee] shows that [Appellant] is entitled to possession and title to the house owned by the parties.”
Judgment reversed.
In her complaint, appellee prayed that the parties’ property be divided as follows: ap