Hardwick v. Hardwick, 35995
| Decision Date | 08 April 1980 |
| Docket Number | No. 35995,35995 |
| Citation | 245 Ga. 570,266 S.E.2d 184 |
| Parties | HARDWICK v. HARDWICK. |
| Court | Georgia Supreme Court |
Kingloff, Clifford & Travis, J. Stephen Clifford, Atlanta, for appellant.
Custer, Smith & Eubanks, Lawrence B. Custer, Marietta, for appellee.
Mrs. Hardwick filed for divorce in July, 1978. At a temporary hearing held in September, 1978, Mr. Hardwick appeared and was represented by counsel. At no time has Mr. Hardwick filed any defensive pleadings in answer to the complaint. Mrs. Hardwick obtained a final decree of divorce in November, 1978. Neither Mr. Hardwick nor the attorney who had represented him at the temporary hearing were given notice of the final hearing and neither attended. Consequently, the divorce was taken on an uncontested basis.
In February, 1979, Mr. Hardwick, represented by new counsel, filed a complaint in equity to set aside the divorce decree on the ground that it had been obtained by fraud. He alleged that Mrs. Hardwick and her attorney fraudulently represented to the court that the divorce was uncontested and that Mr. Hardwick was not represented by counsel. After a hearing, the trial judge orally denied Mr. Hardwick relief stating that since no defensive pleadings were filed, he had waived all notice, including notice of time and place of trial. Prior to a written order being entered, Mr. Hardwick, through his counsel, filed a motion for reconsideration alleging newly discovered evidence. This "newly discovered evidence" was allegedly that Mrs. Hardwick's attorney had deliberately not given notice to Mr. Hardwick or his attorney in retaliation for supposed misconduct by the latter. After another hearing, the same trial judge entered an order setting aside the divorce decree. The trial judge concluded that it was the "custom and practice" of the court "to grant divorces on an uncontested basis; that is, upon the testimony of only one party, in cases where one of the following conditions exists: either an agreement as to all issues has been reached between the parties and each party consents to a divorce being entered on the basis of that agreement, or the defendant in the case has failed to appear and contest any issue in the case, after proper service has been made." The judge found that presenting the case to the court as uncontested when neither of the stated conditions existed amounted to a fraud on the court.
We reverse.
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Ellis v. Ellis, S09F1798.
...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) "[T]he failure of a party to file pleadings in an action shall be deemed to be a waiver by him o......
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Lucas v. Lucas, S00A0936.
...437 S.E.2d 457 (1993), require that notice of trial be given to a defendant not otherwise entitled to notice under Hardwick v. Hardwick, 245 Ga. 570, 266 S.E.2d 184 (1980). Finding that, in this case, they do not, we After four years of marriage, Ms. Lucas filed for divorce on September 4, ......
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James v. James
...that husband waived notice of the hearing on the final divorce. Lucas v. Lucas, 273 Ga. 240, 539 S.E.2d 807 (2000); Hardwick v. Hardwick, 245 Ga. 570, 266 S.E.2d 184 (1980). Compare Wright v. Wright, 270 Ga. 229, 509 S.E.2d 902 (1998), in which defendant was not given notice of the trial da......
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Herring v. Herring
...pleadings constitutes a waiver of notice and hearing on the taking of the final decree. Code Ann. § 81A-105 (a); Hardwick v. Hardwick, 245 Ga. 570, 266 S.E.2d 184 (1980). This rule should apply as well when the claim for divorce arises by way of counterclaim. Consequently, having submitted ......
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Domestic Relations - Barry B. Mcgough and Elinor H. Hitt
...156-57. 29. See id. at 625, 690 S.E.2d at 156. 30. Id. at 626, 690 S.E.2d at 157 (alteration in original) (quoting Hardwick v. Hardwick, 245 Ga. 570, 571, 266 S.E.2d 184, 185 (1980)) (internal quotation marks omitted). 31. O.C.G.A. § 9-11-5(a) (2006 & Supp. 2010). 32. Id.; Ellis, 286 Ga. at......