Robert Pennington (husband) and Michelle Pennington (wife) were divorced pursuant to a final judgment and decree entered after wife failed to appear for a scheduled final hearing to determine child custody. After the trial court denied wife’s motions to set aside, for new trial, and for reconsideration, she filed an application for discretionary appeal which we granted pursuant to this Court’s Rule 34 (4) regulating applications to appeal in certain divorce and alimony cases. Finding no error, we affirm the judgment of the trial court.
After 13 years of marriage, wife filed a petition for divorce alleging the marriage was irretrievably broken. Husband filed an answer and counterclaimed for divorce. At a November 22, 2010 status conference, the
The night before the custody hearing, husband and wife discussed settlement, but wife refused to sign a draft agreement prepared by husband’s counsel. The next morning, husband found a note on the windshield of his car purportedly signed by wife stating, “This is so we can settle it all without any dispute or delay. Just fill in what the settlement is.” Wife did not communicate with either the court or husband the morning of the final custody hearing, which she chose not to attend. The court declined to accept the unverified note as proof of a settlement agreement between the parties and based on wife’s failure to appear at that hearing, it struck her pleadings from the docket, admitted into evidence the guardian ad litem’s supplemental report, and proceeded to enter judgment on husband’s counterclaim for divorce. The final decree awarded husband sole custody of the children and all marital property.
1. Wife contends the trial court abused its discretion by striking her pleadings and proceeding to a bench trial as a sanction for her failure to appear. We disagree. A trial court may strike a party’s pleadings as a proper sanction for wilful refusal to participate in the proceedings pursuant to a court’s inherent power to efficiently administer the cases upon its docket, as well as its power to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court. Kautter v. Kautter,
Wife argues she was excused from appearing at the hearing because she believed the matter was settled and because she had attended all other hearings. Her failure to appear, however, is not excused by the fact that the night before the final hearing she left a note telling husband to “fill in what the settlement is.” Regardless of wife’s intent in leaving the note, it is undisputed she never communicated to the court her intent to settle and she failed to provide any notice to the court of her reason for not appearing. Instead, on the day of the final hearing the court had no explanation for wife’s absence, no verification that the signature on the note belonged to wife, and no evidence of a meeting of the minds between the parties as to what terms, if any, were to be included in a purported agreement. We refuse to hold that a note from one party to another abdicating all responsibility and authority in resolving a dispute reasonably excuses a party’s failure to communicate with the court and participate in a scheduled proceeding.
2. We need not address wife’s contentions that she was denied her right to a jury trial or to present and object to the introduction of evidence because the trial court was authorized to strike her pleadings, including her jury trial demand, as a proper sanction for her failure to participate in the proceedings. See Kautter, supra,
3. Wife contends the trial court had a duty under the due process clause “to take further steps to allow her to participate in the custody hearing” after striking her pleadings. “Afundamental requirement of due process in any proceeding which is to be accorded finality is notice that is reasonably calculated to inform interested parties of an impending hearing and afford them an opportunity to present their objections.” (Punctuation omitted.) Cormier v. Cormier,
Wife’s reliance on Simmons v. Simmons,
4. Finally, wife argues the trial court erred in its denial of her motion to set aside the final judgment because the property and custody awards exceed the amount prayed for in husband’s counterclaim for divorce.
(a) With regard to the property award, husband sought as part of his counterclaim an “equitable division of all real and personal property, assets, and indebtedness of the parties.” Because “an equitable division of marital property does not necessarily mean an equal division,” (punctuation omitted) Fuller v. Fuller,
In addition, our review of the record demonstrates the trial court had before it financial affidavits submitted by both parties providing evidence of the value of husband’s retirement benefits and personal and real property acquired by the parties during the marriage. The court also had evidence of the amount of debt the parties owed at the
(b) Nor did the trial court exceed its authority by awarding husband sole custody of the parties’ minor children. In his counterclaim for divorce, husband sought “temporary and permanent physical and legal custody” of the children, thus notifying wife that custody would be an issue in the divorce action and giving her the opportunity to assert defenses to the requested relief. The fact that husband during settlement negotiations may have been amenable to a provision granting wife supervised visitation did not alter his request or the notice it provided. Inasmuch as the custody award does not exceed the amount prayed for in husband’s counterclaim and this is the only ground on which wife challenges the custody award, wife’s motion to set aside the final judgment was properly denied.
Judgment affirmed.
Notes
The trial court found and there is evidence in the record that wife added her name to and transferred funds from several of husband’s credit card accounts while the divorce action was pending. These transactions include more than $10,000 in cash advances, attempts to transfer $6,100 in credit card debt from wife’s account to husband’s, and the charging to husband’s credit card automobile lease payments on a $50,000 vehicle acquired by wife. In addition, the guardian ad litem reported that since the inception of the divorce action wife had incurred more than $65,000 in additional credit card debt.
Our review of the trial court’s property award is hampered to some degree by the absence of factual findings clarifying the court’s rationale. However, “a superior court judge is not required to make findings of fact in a nonjury trial unless requested to do so by one of the parties prior to entry of the written judgment [cits.],” Crowder v. Crowder,