In a split 4-to-3 decision, the Georgia Supreme Court has ruled against a White County woman who claims the lower court was wrong to conduct the final hearing in her divorce without her being present.
The decision reveals a deep divide among the justices on a fundamental matter of family law: how trial courts are to conduct hearings to finalize divorces. It is the first Family Law Pilot Project decision in over a year not unanimously decided. Data on Family Law Pilot Project Cases.
According to the record, in June 2008, Otis Dan Ellis filed for divorce from Bonnie Lou Ellis, his wife of 14 years. She was not represented at the time by a lawyer, and she failed to file any pleadings in response to her husband’s complaint.
Subsequently, Mrs. Ellis hired Hammond Law as her attorney, although he too did not file a response. According to Mr. Law, the husband’s attorney (Brett Turner), assured Law that Mr. Turner would notify him when the final hearing in the divorce was scheduled. But by the time the hearing occurred, the husband had hired a second attorney, Carol Sheppard, who claimed she had no knowledge of any agreement to notify the wife’s attorney. A week after entering the case, Sheppard filed a motion to enter a final judgment of divorce based on the husband’s pleadings and without holding a hearing on the evidence. The trial court granted the motion, making the divorce decree final.
In February 2009, Law filed a motion for new trial on behalf of the wife, based on the alleged agreement made by the husband’s first attorney to provide him with notice of any final hearing date. The superior court denied the motion, finding that under the law, the wife had waived the right to receive notice by failing to file responsive pleadings.
“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 new trial,” according to the majority opinion, written by Justice Harold Melton (data). Georgia law states that “the 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…”
As a general rule, the majority opinion states, “when 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.” The opinion continues: “The bottom line in this case is that the trial court had evidence on which to base its ruling.” As a result, there was no judgment by default in this case, which state law prohibits in divorce cases.
But in dissent, Chief Justice Carol Hunstein (data) writes that what the trial court did “was clear error.” It entered judgment based solely on the husband’s motion without holding a hearing on the evidence. The only evidence was his two-page complaint and an affidavit about his finances, which provided no evidence regarding the couple’s joint property.
“Notwithstanding this dearth of evidence, the trial court, apparently of the belief that Wife’s failure to file responsive pleadings entitled Husband to decide how the parties’ property should be divided, unquestioningly approved the divorce decree drafted by Husband’s attorney,” the dissent says. “Not surprisingly, the decree awarded Husband essentially the entire marital estate… Simply stated, the trial court gave Husband everything he wanted, without any evidence to support a finding that such division was equitable.” Furthermore, the dissent says, the “swift efforts” by the husband’s second attorney to obtain a final judgment without notice to the wife or her attorney “appear alarmingly calculated, if not deliberately blindsiding.”
“In sum, because the divorce decree is unsupported by evidence, and because the manner of resolution of this case violated basic notions of fairness and professionalism, I must respectfully dissent.” The Chief Justice’s dissent was joined by Presiding Justice George Carley (data) and Justice Robert Benham (data).
Georgia Supreme Court Database: ELLIS V. ELLIS (S09F1798) : Full Text and Visual Summary
Summary by the Georgia Supreme Court Public Information Office
Attorney for Appellant (Bonnie): George Law, III
Attorney for Appellee (Otis): Carol Sheppard, Vic Hill, Brad MacDonald
Georgia Divorce and Family Law Information: From the Center for Legal Solutions