dissenting.
The majority holds that Lucas’s failure to file defensive pleadings constituted a waiver of notice of the hearing on the final decree of judgment which the trial court entered without the presence of Lucas or his attorney. Because our holding in Green v. Green, 263 Ga. 551 (437 SE2d 457) (1993) and the policy underlying domestic cases *243challenges the notion that notice of the final hearing to Lucas or his counsel was unnecessary, I would reverse the trial court’s ruling in this case.
In Green this Court held that the higher standards embodied in the professionalism movement established in Evanoff v. Evanoff, 262 Ga. 303 (418 SE2d 62) (1992), are factors to be considered in determining whether a judgment obtained in the defendant’s absence should be set aside. The role of plaintiff’s counsel was examined to determine whether counsel’s failure to notify the defendant of the hearing and thus deprive the defendant a full and fair opportunity to be heard, violated the principles embodied in the concept of fundamental fairness. In the end, the attorney’s non-professional conduct was a substantial factor in setting aside the judgment. See McConaughey, Ga. Divorce, Alimony and Child Custody (1999 Ed.), Legal Ethics, § 28-1 et seq. The majority’s inclination to allow the wife to proceed with the final hearing without notice to opposing counsel overlooks the spirit of cooperation and civility emphasized in Green, is inappropriate, unduly prejudicial and contravenes the basic premise -underlying domestic cases that they will not end in default. The record establishes that Lucas’s attorney was unaware that the responsive pleadings he prepared had not been filed in the trial court. It also establishes that during the abbreviated pendency of this matter there was communication between counsel and the parties continued to reside together. It was not until December 10 when the parties engaged in an altercation which resulted in the wife calling the police and Lucas being arrested, that the wife appeared before the trial judge and obtained an ex parte final judgment and decree of divorce making a division of the parties’ substantial assets. When Lucas’s attorney learned of the judgment, he promptly filed a motion to set aside under OCGA § 9-11-60 (d) or for a new trial. It is axiomatic that even where notice of the hearing on the final decree is waived by failure to file responsive pleadings, the allegations of the divorce petition must still be established by evidence. Herring v. Herring, 246 Ga. 462 (271 SE2d 857) (1980). See OCGA § 19-5-8; Benefield v. Benefield, 224 Ga. 208 (2) (160 SE2d 895) (1968). Lucas was not given the opportunity to present evidence regarding the assets awarded in this case.
Moreover, the divorce decree suffers from the same defect of professionalism that prompted the majority of this Court to set aside the judgment in Green. After distinguishing Green on the basis that an attorney has a professional responsibility to provide notice to an opposing party but not opposing counsel, a distinction with which I cannot agree, the majority holds that Hardwick v. Hardwick, 245 Ga. 570 (266 SE2d 184) (1980), controls in this case. Hardwick provides that when a defendant in a divorce action fails to file defensive plead*244ings, the divorce is uncontested, and the failure to file defensive pleadings constitutes a waiver of notice and hearing on the taking of the final decree. Since this decision, the appellate courts have been increasingly willing to allow exceptions to the Hardwick rule in order to avoid a fundamentally unfair result and to advocate professionalism in domestic relations cases. See, e.g., Herring v. Herring, supra at 246 Ga. 462 (court considered factors such as intent to contest the decree and timeliness of challenge to the decree); Anderson v. Anderson, 264 Ga. 88 (441 SE2d 240) (1994) (defendant who failed to file defensive pleadings to a divorce petition but received an express assurance by the court that he would receive notice of the final hearing on the divorce petition, was entitled to have the judgment entered in his absence set aside); Brown v. Brown, 217 Ga. App. 245, 247 (457 SE2d 215) (1995) (defendant who filed a legally insufficient answer was nevertheless entitled to the simple expedient of notice of the final hearing in order to have his domestic relations case “properly heard and resolved”); Crenshaw v. Crenshaw, 267 Ga. 20 (471 SE2d 845) (1996) (abuse of the trial court’s discretion found when court refused to set aside a final judgment obtained in the wife’s absence).
Decided November 30, 2000 Reconsideration denied December 15, 2000. Gary C. Harris, for appellant. Stern & Edlin, Shiel G. Edlin, Jennifer E. Jacobson, for appellee.Because the facts demanded the trial court to recognize the lack of fundamental fairness at the heart of this case and obligated the trial court to exercise its discretion to set aside the judgment, I must dissent.