Ellis v. Ellis

Melton, Justice.

In this divorce action, which falls under this Court’s Pilot Project, Bonnie Lou Ellis (“Wife”) contends that the trial court erred by conducting a final hearing in her absence and entering a judgment on the pleadings in favor of Otis Dan Ellis (“Husband”). Because Wife filed no responsive pleadings and thereby waived notice of a final hearing, we affirm.

The record shows that Otis Dan Ellis filed a complaint for divorce in June 2008, and Bonnie Lou Ellis, who was not represented by counsel at the time, acknowledged service of Husband’s complaint but failed to file any responsive pleading. Wife eventually retained counsel, Mr. Law, who filed his entry of appearance on Wife’s behalf on August 11, 2008. However, Mr. Law also did not file a responsive pleading to Husband’s complaint. Husband’s attorney, Mr. Turner, provided Mr. Law with a notice of the final hearing, which was ultimately continued, and depositions were scheduled for February 2009. According to Wife’s attorney, Mr. Turner agreed to inform him of any rescheduled date for the final hearing after it had been set by the court.1 Prior to the depositions taking place, another attorney, Ms. Sheppard, filed an entry of appearance on behalf of Husband,2 and she moved the trial court to enter a final judgment of divorce on the pleadings without holding an evidentiary hearing. Later that month, the court granted Husband’s motion.3

*626On February 27, 2009, Mr. Law filed a motion for new trial on behalf of Wife, relying on the alleged agreement made by Mr. Turner to provide him with notice of any final hearing date. The superior court denied this motion, holding that Wife’s counsel could not contend that the court failed to properly give Wife notice because she waived notice by failing to file any responsive pleadings, irrespective of any outside agreement between counsel.

As a general rule, “[w]hen a defendant in a divorce action fails to file defensive pleadings, the divorce is, by definition, uncontested. Failure to file defensive pleadings constitutes waiver of notice of the hearing on the final decree.” (Citations omitted.) Hardwick v. Hardwick, 245 Ga. 570, 571 (266 SE2d 184) (1980). OCGA § 9-11-5 (a) provides:

. . . [T]he failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment, and all service in the action, except service of pleadings asserting new or additional claims for relief. . . .

Therefore, in this case, Wife waived any notice regarding the final hearing by failing to file a responsive pleading, and the trial court properly denied her motion for a new trial.

Contrary to Wife’s arguments, Anderson v. Anderson, 264 Ga. 88 (441 SE2d 240) (1994) and Green v. Green, 263 Ga. 551 (437 SE2d 457) (1993), do not change this result, as these cases are distinguishable from the matter now before us. In Anderson, we found that a pro se defendant who fails to file defensive pleadings but who receives the express assurance of the trial court at a temporary hearing that he will receive notice of the final hearing on a divorce petition is entitled to notice of the final hearing. No similar assurances were made by the trial court in this matter.

In Green, the plaintiff filed for divorce from her husband, subsequently moved out of state, and her attorney thereafter withdrew from the case. While plaintiff was unrepresented and out of state, the defendant’s attorney used “extraordinary efforts ... to bring th[e] case to trial in the absence of the unrepresented party whom [he] knew to live out of this state.” Id. at 552. We found that *627notions of fundamental fairness required that, in certain circumstances, counsel of a represented party must “assum[e] the burden of notifying by mail any unrepresented opposing party when their case appears on a trial calendar.” Id. at 555 (2). We further held in Green that, “[g]iven all the circumstances of this case, and especially the lengths to which appellee’s counsel went to ensure that this case was tried in the absence of [the] appellant,” required the judgment of divorce to be set aside. Id.

Unlike Green, this case involves a defendant who failed to file responsive pleadings but later retained counsel, not an unrepresented plaintiff who was prevented from receiving notice of a trial by extraordinary measures.

The Green Court clearly was concerned about counsel’s action when facing an unrepresented party. . . . Here, [Wife] was [ultimately] represented, as [Husband’s] counsel was well aware, having engaged in negotiations with [Wife’s] counsel. As Green noted, attorneys are not required to make the interests of their clients subservient to opposing parties. [Cit.] As [Wife] was represented, [Husband’s] counsel could rely upon [Wife’s] counsel to properly consider and advise [Wife] on such matters as the effect of not filing responsive pleadings.

Lucas v. Lucas, 273 Ga. 240, 241 (1) (539 SE2d 807) (2000) (refusing to extend Green to a defendant not otherwise entitled to notice under Hardwick, supra). Moreover,

[t]his case is not like Green[, supra], or Crenshaw v. Crenshaw, 267 Ga. 20 (471 SE2d 845) (1996). In those cases, we held that the plaintiff who brought suit, and was not represented by counsel at the time of the hearing, was entitled to be given notice of the hearing by opposing counsel. Unlike a defendant who does not file a responsive pleading, a plaintiff does not waive all notices. Cf. OCGA § 9-11-5 (d). Thus, unlike [Wife] in this case, the plaintiffs in Green and Cren-shaw did not waive their right to be notified of the time of trial.

(Emphasis supplied.) James v. James, 275 Ga. 165, 165-166 (562 SE2d 506) (2002). Therefore, for all the reasons set forth above, Wife waived any notice of the final hearing in this divorce case, and the trial court did not err by denying her motion for new trial on those grounds.

The dissent argues that the trial court’s ruling was entered *628without evidence. This argument is incorrect. As an initial matter, Wife has not challenged the sufficiency of the evidence. In her motion for new trial, her hearing on the motion for new trial, and in this appeal, Wife has argued only that she did not receive proper notice of a final hearing. Therefore, the dissent bases its conclusion on a claim that is not even before this Court.

As the dissent readily acknowledges, “[satisfactory proof of the allegations of the divorce complaint may consist of verified pleadings, live testimony, affidavits, or similar evidentiary forms.” Citing OCGA §§ 19-5-8, 19-5-10 (a). The dissent concedes that the trial court entered its judgment based on Husband’s verified complaint and his Domestic Relations Financial Affidavit. Husband’s responses to Wife’s interrogatories were also provided to the trial court. The Domestic Relations Affidavit categorized the primary assets as premarital assets. In his motion for a final judgment of divorce, Husband further asserted that all marital property remaining in his possession at the time that motion was filed belonged to him. Even though properly served with these pleadings and on notice of the allegations sworn to therein, Wife’s attorney filed no responsive pleading to challenge any of this evidence. Based on these materials, the trial court properly determined “that the asserted grounds for divorce are legal and sustained by proof [based] upon the verified pleadings of either party, one or more affidavits, or such other basis or procedure as the court may deem proper in its discretion.” (Emphasis supplied.) OCGA § 19-5-10 (a). The trial court did what it was required to do, exactly as stated in the two cases cited by the dissent for the contrary conclusion. See Youmans v. Youmans, 247 Ga. 529, 530, n. 1 (276 SE2d 837) (1981); Harris v. Harris, 228 Ga. 562, 563 (2) (187 SE2d 139) (1972).

The dissent, on the other hand, now finds fault with the trial court’s order and the evidence it relied upon. In doing so, the dissent ascribes impropriety to the trial court’s reasoning and judges Husband’s credibility and motives. Regarding the trial court, the dissent argues that it “unquestioningly approved the divorce decree drafted by Husband’s attorney,” “gave Husband everything he wanted,” and believed that “Wife’s failure to file responsive pleadings entitled Husband to decide how the parties’ property should be divided.” This broad assumption of improper trial court behavior has no basis in the record and directly conflicts with the standard of review. With regard to Husband, the dissent draws his credibility into question, implicitly assigning improper motives to the manner in which he completed his financial affidavit and making assumptions that there must have been additional evidence that he failed to provide the trial court. Again, this exceeds our appellate standard of review, as we may neither make decisions regarding credibility nor create assump*629tions to support our holdings. See, e.g., Wood v. Wood, 283 Ga. 8 (1) (a) (655 SE2d 611) (2008) (this Court does not reweigh evidence). The bottom line in this case is that the trial court had evidence on which to base its ruling.4

In a similar manner, the dissent inappropriately reweighs the evidence to conclude that Husband failed to give Wife proper notice of a final hearing in this case. The dissent argues that the clearly distinguishable holding in Anderson, supra, should be extended to the cover this case “where Sheppard’s swift efforts to obtain a final judgment without notice to Wife or her counsel — quite apart from the existence of any agreement between counsel or Sheppard’s knowledge thereof — appear alarmingly calculated, if not deliberately blind-siding.” (Emphasis supplied.) This is not an appropriate basis for an appellate court ruling. The trial court considered evidence on this issue below, both in briefs, evidence, and arguments made by the parties at a motion for new trial hearing. It specifically stated in its order that “ [a]ll lawyers in this matter are well known to the [trial court] as honorable, reliable members of the legal profession.” By stating otherwise regarding the actions of Sheppard, the dissent disregards the trial court’s finding of fact and substitutes one of its own.

Judgment affirmed.

All the Justices concur, except Hunstein, C. J., Carley, P. J., and Benham, J., who dissent.

Mr. Turner did not testify at the motion for new trial hearing.

After Ms. Sheppard’s appearance in the case, it seems Mr. Turner no longer participated; however, the record is unclear regarding Mr. Turner’s continued role in the case, if any.

Although no default judgment may be entered in a divorce action, see OCGA § 19-5-8, a judgment on the pleadings may be entered in certain circumstances. OCGA § 19-5-10 (a) provides:

In divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or *626shall appoint an attorney of the court to discharge that duty for him. An evidentiary hearing for the determination of the existence of the grounds for divorce and for the determination of issues of alimony, child support, and child custody and other issues is authorized but not required. If no evidentiary hearing is held, the determination of such matters may be made upon the verified pleadings of either party, one or more affidavits, or such other basis or procedure as the court may deem proper in its discretion.

For this reason, there was no default judgment in this case, and the outcome of this decision, contrary to the arguments of the dissent, in no way fails to preserve or defend the statutory prohibition on default judgments in divorce cases.