Rymuza v. Rymuza

• Decision Date: 19 November 2012
• Docket Number: No. S12F1507.,S12F1507.
• Citation: Rymuza v. Rymuza, 292 Ga. 98, 734 S.E.2d 384 (Ga. 2012)
• Parties: RYMUZA v. RYMUZA.
• Court: Georgia Supreme Court

292 Ga. 98

734 S.E.2d 384

RYMUZA

v.RYMUZA.

No. S12F1507.

Supreme Court of Georgia.

Nov. 19, 2012.

James W. Davis, James W. Davis & Associates, Macon, for appellant.

Stephen N. Hollomon, Warner Robins, for appellee.

NAHMIAS, Justice.

On January 13, 2012, the trial court entered a final judgment in the divorce action filed by appelleeJeffrey Rymuza(Husband) against appellant Andreana Rymuza (Wife).We granted Wife's application for discretionary appeal under Supreme Court Rule 34(4), and we now affirm the trial court's judgment.

1.Viewed in the light most favorable to the trial court's rulings, the evidence showed as follows.Husband and Wife married on April 4, 2008; they have no children together.On March 2, 2009, Husband filed for divorce in Houston County, where the marital residence is located.Wife, represented by attorney James W. Davis, answered and counterclaimed for divorce.On March 19, 2010, Wife filed a motion to dismiss based on reconciliation.On June 30, 2011, however, Wife filed an amended answer and counterclaim for divorce.That same day, the trial court held a final hearing, found that the parties had sex after the divorce action was filed, and dismissed Husband's complaint and Wife's counterclaim for divorce.

Near the end of July 2011, Wife moved back into the marital residence in Houston County.The parties then traveled to Florida from August 2 to 11, 2011, before returning to their house.On August 19, 2011, the police responded to an argument between Husband and Wife at the marital residence, but no arrests were made.The next day, however, Husband was arrested for threatening to kill Wife; he was released on bond two days later.As a condition of his bond, Husbandwas forbidden to have any contact with Wife, including at her work or her home, which the bond said was the marital residence.When Husband had the locks changed at the house, Wife called the police, told them that she lived there, and paid a locksmith $400 to rekey the locks so she would have access to the house.

On August 30, 2011, the police were again called to the marital residence, which they discovered had been ransacked, severely vandalized, and at least temporarily abandoned.Although Wife was not present at the scene, she was arrested in Houston County on a Bibb County fraud warrant later that day and then released.Each party accused the other of inflicting the damage to their house.Wife, represented by attorney Davis, filed a petition in Houston County Superior Court for a temporary protective order under the Family Violence Act, OCGA §§ 19–13–1 to 19–13–56, seeking exclusive possession of the marital residence.

On September 8, 2011, Husband again filed for divorce in Houston County.The complaint sought a divorce on the grounds of Wife's cruel treatment and that the marriage was irretrievably broken, seeOCGA §§ 19–5–3(10), (13), and requested equitable division of the parties' assets and liabilities, the return of certain property, attorney fees, and a restraining order preventing Wife from disposing of assets or entering the marital residence.Husband's attorney contacted attorney Davis, who claimed that he did not represent Wife in this new divorce action and did not know where she was.An attempt to serve Wife at the marital residence was unsuccessful, and an internet search returned no information on her whereabouts.On September 27, 2011, the Houston County Sheriff filed an entry of service stating that a diligent search had been made for Wife and she could not be found in the court's jurisdiction.

Two days later, Husband filed an affidavit for service by publication recounting these attempts to serve Wife and suggesting that Wife was concealing her location because of pending Bibb County warrants for her arrest.That same day, the trial court entered an order authorizing service by publication, including notice to Wife at her last known address (the marital residence) informing her that she had been sued and was required to file and serve on Husband's attorney an answer in writing within 60 days of October 6, 2011.Wife did not file a responsive pleading or seek an extension of time by the deadline.In late November 2011, Wife was arrested in Gwinnett County on a Bibb County controlled substances warrant, and she again gave the marital residence as her home address for the bond paperwork.

The trial court set a final hearing for December 19, 2011.By now Wife was aware of the divorce case through Husband's attorney's discussions with attorney Davis.A few days before the final hearing, Davis called the court on Wife's behalf and was told the time and place of the hearing.Wife appeared at the final hearing with Davis; he had not filed an entry of appearance, but he told the court that he would do so.Wife did not file any responsive pleading before the hearing.The parties testified and were cross-examined about venue by Davis and Husband's attorney.The trial court found Wife's testimony regarding venue not credible and ruled that the more credible evidence showed that venue was proper in Houston County.Husband then briefly took the stand to testify that the marriage was irretrievably broken and that he wanted a divorce on that ground; Wife did not cross-examine Husband on this issue, nor did she ask to testify again or present any additional evidence.The court found that the marriage was irretrievably broken.Davis agreed to forward a copy of the divorce decree to Wife when the court entered it.

On December 28, 2011, nine days after the final hearing but before a written order was entered, Davis filed on Wife's behalf an answer and counterclaim and a premature motion to set aside the order.In the answer and counterclaim, Wife disputed that venue was proper in Houston County, sought a divorce on the grounds of adultery and cruel treatment, seeOCGA §§ 19–5–3(6), (10), and asked to be awarded, among other things, the marital residence in Houston County and “all monetary assets held by” Husband.In the motion to set aside, Wife claimed that the court prevented her at the final hearing from presenting evidence and cross-examining Husband on the merit's of his complaint and that she was not allowed to address the appropriateness of the notice by publication or the veracity of Husband's allegations in support thereof.

On January 13, 2012, the trial court entered a final judgment and decree of divorce.The divorce decree included findings that Wife was subject to the court's jurisdiction and that venue was proper in Houston County.The same day, the court entered an order denying Wife's motion to set aside.The court rejected Wife's characterization of the divorce decree as a default judgment, noting that Wife never indicated that she wished to contest the divorce and did not object to or contradict Husband's testimony at the final hearing that the marriage was irretrievably broken.The court concluded that all issues other than the divorce itself were resolved by a prenuptial agreement that was found to be valid and enforceable in the first divorce action, and that Wife was estopped from attempting to re-litigate those issues.Wife then filed an application for discretionary appeal, which this Court granted under our Rule 34(4).

2.Wife contends that the trial court erred by entering a default judgment and preventing her from offering evidence and cross-examining Husband on the adequacy of notice and the merits of his complaint.Default judgments are not permitted in divorce suits, and “even without pleading [Wife] had the right to appear and...