Pennington v. Pennington

• Decision Date: 29 May 2012
• Docket Number: No. S12F0539.,S12F0539.
• Citation: Pennington v. Pennington, 291 Ga. 165, 728 S.E.2d 230, 12 FCDR 1763 (Ga. 2012)
• Parties: PENNINGTON v. PENNINGTON.
• Court: Georgia Supreme Court

291 Ga. 165

728 S.E.2d 230

12 FCDR 1763

PENNINGTON

v.PENNINGTON.

No. S12F0539.

Supreme Court of Georgia.

May 29, 2012.

Robert Douglas Lenhardt, Law Office of R Douglas Lenhardt, Athens, for appellant.

Albert H. Dallas, Dallas Law Firm, Thomson, for appellee.

THOMPSON, Justice.

Robert Pennington (husband) and Michelle Pennington (wife) were divorced pursuant to a final judgment and decree entered after wife failed to appear for a scheduled final hearing to determine child custody. After the trial court denied wife's motions to set aside, for new trial, and for reconsideration, she filed an application for discretionary appeal which we granted pursuant to this Court's Rule 34 (4) regulating applications to appeal in certain divorce and alimony cases. Finding no error, we affirm the judgment of the trial court.

After 13 years of marriage, wife filed a petition for divorce alleging the marriage was irretrievably broken. Husband filed an answer and counterclaimed for divorce. At a November 22, 2010 status conference, the court discussed with the parties its intent to schedule a jury trial to begin on a Monday in the early part of December 2010. The court further informed the parties that consistent with its usual practice, all child custody issues would be decided at a final hearing to be held on the Friday preceding the Monday of jury selection. The following day, a notice of jury trial was mailed to the parties notifying them of trial on December 13, 2010. On November 30, a notice of hearing was mailed to the parties notifying them of the child custody hearing to be held on December 10, 2010.

The night before the custody hearing, husband and wife discussed settlement but wife refused to sign a draft agreement prepared by husband's counsel. The next morning, husband found a note on the windshield of his car purportedly signed by wife stating, “This is so we can settle it all without any dispute or delay. Just fill in what the settlement is.” Wife did not communicate with either the court or husband the morning of the final custody hearing, which she chose not to attend. The court declined to accept the unverified note as proof of a settlement agreement between the parties and based on wife's failure to appear at that hearing, it struck her pleadings from the docket, admitted into evidence the guardian ad litem's supplemental report, and proceeded to enter judgment on husband's counterclaim for divorce. The final decree awarded husband sole custody of the children and all marital property.

1. Wife contends the trial court abused its discretion by striking her pleadings and proceeding to a bench trial as a sanction for her failure to appear. We disagree. A trial court may strike a party's pleadings as a proper sanction for wilful refusal to participate in the proceedings pursuant to a court's inherent power to efficiently administer the cases upon its docket, as well as its power to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court. Kautter v. Kautter, 286 Ga. 16, 18, 685 S.E.2d 266 (2009); Bayless v. Bayless, 280 Ga. 153, 155, 625 S.E.2d 741 (2006); Truitt v. Housing Auth. of the City of Augusta, 235 Ga.App. 92, 94, 507 S.E.2d 781 (1998); OCGA § 15–1–3(3) and (4). Here, the court informed the parties at the November status conference that a final hearing to determine all issues related to child custody would be held the Friday before trial. The trial court went on to specifically warn wife, who that day had agreed to her counsel's withdrawal, that she needed to check her mail in a timely manner because notices of the upcoming hearing and trial dates would be sent to her at the post office address she provided the court. Despite proper notice of the hearing having been provided, wife voluntarily chose not to participate in the proceedings and not to inform the court, either personally or by authorized representative, of any reason for her failure to appear. Under the circumstances in this case, we conclude the trial court was authorized to strike wife's pleadings. Bayless, supra, 280 Ga. at 156, 625 S.E.2d 741 (“A party who intentionally fails to comply fully with a court order may be subject to the harshest of sanctions.' [Cits.]” See also Uniform Superior Court Rule 14 (authorizing dismissal of action or any pleading upon failure of party to respond to call of action for trial or other proceeding).

Wife argues she was excused from appearing at the hearing because she believed the matter was settled and because she had attended all other hearings. Her failure to appear, however, is not excused by the fact that the night before the final hearing she left a note telling husband to “fill in what the settlement is.” Regardless of wife's intent in leaving the note, it is undisputed she never communicated to the court her intent to settle and she failed to provide any notice to the court of her reason for not appearing. Instead, on the day of the final hearing the court had no explanation for wife's absence, no verification that the signature on the note belonged to wife, and no evidence of a meeting of the minds between the parties as to what terms, if any, were to be included in a purported agreement. We refuse to hold that a note from one party to another abdicating all responsibility and authority in resolving a dispute reasonably excuses a party's failure to communicate with the court and participate in a scheduled proceeding.

Moreover, the record does not support wife's claim of wilful participation in the proceedings. In addition to her failure to appear when her case was called on December 10, the record reflects wife previously had failed to attend a scheduled settlement conference and had failed to respond to husband's discovery requests. The record thus makes clear, as in Bayless, the trial court's repeated efforts to resolve this case in a timely fashion for the benefit of both the parties and their minor children and its continued frustration with wife's conduct throughout the proceedings.

2. We need not address wife's contentions that she was denied her right to a jury trial or to present and object to the introduction of evidence because the trial court was authorized to strike her pleadings, including her jury trial demand, as a proper sanction for her failure to participate in the proceedings. See Kautter, supra, 286 Ga. at (1), 685 S.E.2d 266;Bonner v. Smith, 226 Ga.App. 3(4), 485 S.E.2d 214 (1997).

3. Wife contends the trial court had a duty under the due process clause “to take further steps to allow her to participate in the custody hearing” after striking her pleadings. “A fundamental requirement of due process in any proceeding which is to be accorded finality is notice that is reasonably calculated to inform interested parties of an impending hearing and afford them an opportunity to present their objections.” Cormier v. Cormier, 280 Ga. 693(1), 631 S.E.2d 663 (2006). As discussed above, wife was given notice of both the time and purpose of the December 10, 2010 hearing and an opportunity to present her case at the hearing. Accordingly, wife was provided a full hearing on the issue of child custody which she chose not to attend and she has failed to set forth a valid due process claim. Id. See also Davenport v. State, 283 Ga. 29(2)(a), 656 S.E.2d 514 (2008) (claim of no opportunity to be heard belied by record showing court twice gave party opportunity to respond).

Wife's reliance on Simmons v. Simmons, 265 Ga. 183, 453 S.E.2d 696 (1995), for the proposition that the written notice of hearing was defective because it failed to specify the subject matter is misplaced. In Simmons, the parties...