Brown v. Brown

525 S.E.2d 359 (2000)

271 Ga. 887

BROWN v. BROWN.

No. S99A1708.

Supreme Court of Georgia.

January 18, 2000.

Stephen N. Hollomon, Warner Robins, for appellant.

Fred I. Graham, Arthur H. Clarke, Jr., Warner Robins, for appellee.

CARLEY, Justice.

Appellee Sharon Brown filed suit for divorce against her spouse, and named her mother-in-law, appellant Jean Brown, as a co-defendant. The gravamen of the claim against appellant was that certain real property titled in her name actually belonged to appellee and her husband, and was, therefore, subject to equitable division in the divorce proceeding. See generally DeGarmo v. DeGarmo, 269 Ga. 480, 481(2), 499 S.E.2d 317 (1998). The complaint was served on appellant on March 11, 1998, but she did not file an answer until October 26, 1998. Before the case was called for trial in April of 1999, appellee moved for default judgment against appellant. The trial court granted the motion, and entered a default judgment establishing that appellant held the property in trust for the benefit of appellee and her husband. The jury's subsequent verdict mandated a sale of the property, with a designated amount of the proceeds used to pay marital debts and any balance awarded to appellant. We granted appellant's application for discretionary appeal, in order to determine whether the trial court erred in entering default judgment against her.

*360 Although OCGA § 9-11-55 is authority for the grant of default judgments, OCGA § 19-5-8 provides that "[n]o verdict or judgment by default shall be taken" in actions for divorce, alimony or child custody. Accordingly, resolution of this appeal depends upon whether appellee's claim against appellant constitutes an action which OCGA § 19-5-8 specifically exempts from the general ambit of OCGA § 9-11-55. The allegations against appellant raise a material issue with regard to the equitable division of marital property. Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980). This is an equitable claim which arises only as the result of the underlying divorce action. Bedford v. Bedford, 246 Ga. 780, 781, 273 S.E.2d 167 (1980). Because equity seeks always to do complete justice, third parties are properly joined in a divorce action so as to facilitate resolution of the spouses' marital claims. OCGA § 23-1-7; Roberts v. Roberts, 226 Ga. 203, 209(9), 173 S.E.2d 675 (1970) (alimony). Such a claim against a non-spouse has always been considered an integral part of the divorce action to which it was joined for that limited purpose. See Shah v. Shah, 270 Ga. 649, 651(2), 513 S.E.2d 730 (1999); Horton v. Kitchens, 259 Ga. 446(2), 383 S.E.2d 871 (1989). Thus, a default judgment cannot be entered against the defendant on such a claim. See Harrison v. Harrison, 228 Ga. 126, 128, 184 S.E.2d 147 (1971). Therefore, the trial court erred in entering a default judgment against appellant, and the equitable division claim as against her must be remanded to the trial court for disposition in accordance with OCGA § 19-5-8. This holding does not affect the judgment entered in appellee's main divorce action against her husband.

Judgment reversed.

All the Justices concur.