Ellis v. Ellis, S09F1798.

• Decision Date: 01 February 2010
• Docket Number: No. S09F1798.,S09F1798.
• Citation: 690 S.E.2d 155,286 Ga. 625
• Parties: ELLIS v. ELLIS.
• Court: Georgia Supreme Court

690 S.E.2d 155 286 Ga. 625 ELLIS
v.
ELLIS. No. S09F1798. Supreme Court of Georgia. February 1, 2010. Reconsideration Denied March 15, 2010.

[690 S.E.2d 156]

Whitmer & Law, George H. Law III, Gainesville, for appellant.

Carol S. Sheppard, Dahlonega, Vic Brown Hill, Brad E. MacDonald, Marietta, for appellee.

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

On 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

690 S.E.2d 157

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 S.E.2d 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 S.E.2d 240 (1994) and Green v. Green, 263 Ga. 551, 437 S.E.2d 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, 437 S.E.2d 457. We found that notions 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), 437 S.E.2d 457. 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 S.E.2d 807 (2000) (refusing to extend Green to a defendant not otherwise entitled to notice under Hardwick, supra). Moreover,

This case is not like Green [, supra], or Crenshaw v. Crenshaw, 267 Ga. 20, 471 S.E.2d 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 Crenshaw did not waive their right to be notified of the time of trial.

(Emphasis supplied.) James v. James, 275 Ga. 165, 165-166, 562 S.E.2d 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

690 S.E.2d 158

err by denying her motion for new trial on those grounds.

The dissent argues that the trial court's ruling was entered without 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, "[s]atisfactory 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 S.E.2d 837 (1981); Harris v. Harris, 228 Ga. 562, 563(2), 187 S.E.2d 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 ...