Anderson v. Anderson
| Decision Date | 28 March 1994 |
| Docket Number | No. S94A0268,S94A0268 |
| Parties | ANDERSON v. ANDERSON. |
| Court | Georgia Supreme Court |
Mike S. Bennett, Bennett, Wisenbaker, Bennett & Williams, Valdosta, for Michael Anderson.
O. Wayne Ellerbee, The Ellerbee Law Firm, Valdosta, for Sharon Deon Anderson.
We granted this discretionary appeal to determine whether a defendant who fails to file defensive pleadings but who receives the express assurance of the 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. Under these limited circumstances, we find a defendant is entitled to such notice and reverse.
Mrs. Anderson filed a complaint for divorce on May 7, 1993. On May 8, 1993, while visiting the parties' minor child in the state of Georgia, Mr. Anderson was served with a copy of the divorce petition and notice of temporary hearing scheduled for June 9, 1993, two days after his defensive pleadings were due. 1 At the temporary hearing, the court informed Mr. Anderson that a final hearing would be scheduled and inquired as to his correct address so he could be notified of the hearing and to allow Mrs. Anderson to provide him a copy of the temporary order to be prepared by her counsel. 2
Without notice to Mr. Anderson, Mrs. Anderson obtained a judgment fourteen days later after a hearing before a second judge who was not informed of the earlier hearing or the previous judge's assurance that Mr. Anderson would receive notice of the final hearing. The final judgment awarded to Mrs. Anderson physical custody of their minor child, child support, the marital home and all of its furnishings, and twenty-five percent of Mr. Anderson's future retirement income. Mr. Anderson thereafter hired counsel and on July 23, 1993, filed a motion to set aside the judgment. That motion was denied and Mr. Anderson appeals.
OCGA § 9-11-60(d) provides for setting aside a judgment based upon a nonamendable defect which appears upon the face of the record. The failure of counsel or a party acting pro se to receive notice of a hearing constitutes such a defect as will authorize the setting aside of a judgment. Coker v. Coker, 251 Ga. 542, 307 S.E.2d 921 (1983); Housing Authority of Atlanta v. Parks, 189 Ga.App. 97, 98, 374 S.E.2d 842 (1988); Beach's Constr. Co. v. Moss, 168 Ga.App. 462(1), 309 S.E.2d 382 (1983). Although, as a general rule, a party who fails to file defensive pleadings waives all right to notice, OCGA § 9-11-5(a), the facts here are sufficient to take it outside the general rule. Travelling from his home in Baltimore, Maryland, Mr. Anderson...
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