2020 Georgia Code
Title 19 - Domestic Relations
Chapter 5 - Divorce
§ 19-5-8. Pleading and Practice

The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter. No verdict or judgment by default shall be taken in any such case but the allegations of the pleadings shall be established to the satisfaction of the court by the verified pleadings, by affidavit, by evidentiary hearing, or otherwise, as provided in Code Section 19-5-10.

(Ga. L. 1895, p. 44, § 9; Civil Code 1895, §§ 2440, 5074; Civil Code 1910, §§ 2959, 5658; Code 1933, § 30-113; Ga. L. 1958, p. 315, § 1; Ga. L. 1967, p. 226, § 44; Ga. L. 1987, p. 565, § 1.)

- For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967). For article, "Georgia Law of Alimony," see 4 Ga. St. B.J. 54 (1999).

JUDICIAL DECISIONS

Legislative intent.

- Laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

- Essential allegations in petition for divorce, including jurisdiction, must be established by evidence and the burden of proving such allegations rests upon the plaintiff. Moody v. Moody, 194 Ga. 843, 22 S.E.2d 837 (1942); Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953).

- Divorce granted by court having no subject matter or personal jurisdiction is nullity. Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953).

In action for divorce it is necessary to allege correct venue, and to make affirmative proof thereof. Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807 (1939).

Legal status of plaintiff's case, concerning plaintiff's right to verdict, is the same whether or not an answer is filed by the defendant or not. Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

- O.C.G.A. § 9-11-55 is authority for the grant of default judgments; however, O.C.G.A. § 19-5-8 specifically exempts from the general ambit of § 9-11-55 issues with regard to the equitable division of marital property. Brown v. Brown, 271 Ga. 887, 525 S.E.2d 359 (2000).

Default judgment cannot be taken in divorce or alimony actions. Thus, even though notice of the hearing on the final decree is waived by failure to file responsive pleadings, the allegations of the petition must still be established by evidence. Youmans v. Youmans, 247 Ga. 529, 276 S.E.2d 837 (1981).

Although a default judgment was not permissible in a divorce case, O.C.G.A. § 19-5-8, a trial court did not err in entering a judgment of divorce on the pleadings pursuant to O.C.G.A. § 19-5-10(a) after a wife failed to file responsive pleadings, thereby waiving notice of the hearing under O.C.G.A. § 9-11-5. The trial court properly relied on the husband's verified complaint and domestic relations affidavit in dividing the parties' property. Ellis v. Ellis, 286 Ga. 625, 690 S.E.2d 155 (2010).

- No provision has been made in this state by statute or otherwise for a judgment declaring a divorce suit to be in default as to pleadings. Jolley v. Jolley, 216 Ga. 51, 114 S.E.2d 534 (1960); Johnston v. Still, 225 Ga. 222, 167 S.E.2d 646 (1969).

Answer is not essential in domestic relations case because a default judgment may not be entered. Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16 (1999).

- Because neither the original court-ordered parenting plan nor the two subsequent orders amending the plan constituted a final judgment, and the determination of child custody became final only when the final judgment and decree in the divorce case was entered, the wife's motion for new trial, although the motion obviously referenced the bench trial on the child custody issues, was timely filed within 30 days of the date of the final judgment in the divorce case. Hoover v. Hoover, 295 Ga. 132, 757 S.E.2d 838 (2014).

- Default judgment cannot be entered in an original action for child support. Likewise, a default judgment cannot be entered in a subsequent action for modification of a previous award of child support. Department of Human Resources v. Hedgepath, 204 Ga. App. 755, 420 S.E.2d 638 (1992).

- Judgment cannot be taken by default in actions involving the custody of minor children. Wright v. Sanford, 243 Ga. 252, 253 S.E.2d 560 (1979).

Default judgment cannot be taken in habeas corpus custody cases. Wright v. Sanford, 243 Ga. 252, 253 S.E.2d 560 (1979).

Default provisions of Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55) have no application to divorce cases. Simpson v. Simpson, 240 Ga. 543, 242 S.E.2d 45 (1978).

Spouse's right to defend without filing answer cannot be used to deny existence of "issuable defense" and thereby defeat the right to jury trial provided by former Code 1933, § 30-101 (see now O.C.G.A. § 19-5-1). Trulove v. Trulove, 233 Ga. 896, 213 S.E.2d 868 (1975).

- It is court's duty not to permit verdict for divorce, unless evidence makes prima facie case showing that the defendant in the divorce action was a resident of the county at the time the suit was filed, and it was the duty of the jury to refuse a divorce unless this fact is proved by a preponderance of the testimony. McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647 (1911); Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

- In a divorce case, applying the preponderance of the evidence standard, and deferring to the trial court's finding that both a husband and a wife believed their opposing positions regarding the contents of a lost antenuptial agreement, the husband failed to prove the terms of the lost agreement, and the agreement could not be enforced. Coxwell v. Coxwell, 296 Ga. 311, 765 S.E.2d 320 (2014).

- Since a divorce cannot be granted by default, a mere failure to answer the complaint or a failure to contest some particular evidence would not be an admission that a divorce should be granted. Benefield v. Benefield, 224 Ga. 208, 160 S.E.2d 895 (1968).

- Trial court erred in entering a default judgment against the appellant because third parties are properly joined in a divorce action so as to facilitate resolution of the spouses' marital claims, and a claim against a non-spouse that involves marital property has always been considered an integral part of the divorce action. Brown v. Brown, 271 Ga. 887, 525 S.E.2d 359 (2000).

Attorney is entitled to the opening and concluding argument before the jury when the verdict for divorce and alimony is not demanded by the evidence and the defendant husband has introduced no evidence. Hogsed v. Hogsed, 230 Ga. 232, 196 S.E.2d 428 (1973).

- When a judgment and decree sought to be set aside were rendered in one term, and the motion to set aside came at a subsequent term, was not based on any defect appearing on the face of the record or pleadings, and was not accompanied by any brief of the evidence adduced upon the trial which resulted in the judgment and decree, the trial judge did not err in dismissing the motion to set aside. Prewett v. Prewett, 215 Ga. 425, 110 S.E.2d 638 (1959).

Cited in Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245 (1933); Young v. Young, 188 Ga. 29, 2 S.E.2d 622 (1939); Davis v. Freeman, 190 Ga. 833, 10 S.E.2d 847 (1940); Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961); Patterson v. Patterson, 219 Ga. 186, 132 S.E.2d 201 (1963); Mitchell v. Mitchell, 226 Ga. 678, 177 S.E.2d 89 (1970); Harrison v. Harrison, 228 Ga. 126, 184 S.E.2d 147 (1971); Wallace v. Wallace, 229 Ga. 607, 193 S.E.2d 832 (1972); Barrett v. Barrett, 232 Ga. 840, 209 S.E.2d 181 (1974); Oliveros v. Oliveros, 237 Ga. 615, 229 S.E.2d 415 (1976); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978); Herring v. Herring, 246 Ga. 462, 271 S.E.2d 857 (1980); Gambrell v. Gambrell, 246 Ga. 516, 272 S.E.2d 70 (1980); McElroy v. McElroy, 252 Ga. 553, 314 S.E.2d 893 (1984); Hammack v. Hammack, 281 Ga. 202, 635 S.E.2d 752 (2006).

Law required introduction of evidence sufficient to sustain verdict. 1958-59 Op. Att'y Gen. p. 85.

Divorce case was never in default, and since not in default, the case cannot be tried before the trial term, without consent of the parties. 1958-59 Op. Att'y Gen. p. 85.

Legal status of plaintiff's case, concerning plaintiff's right to verdict, is same whether or not answer is filed by the defendant. 1958-59 Op. Att'y Gen. p. 85.

Defendant should not be deprived of right to resist grant of total divorce whether defensive pleadings be filed or not. 1958-59 Op. Att'y Gen. p. 85.

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, § 216.

- 27A C.J.S., Divorce, § 141 et seq.

- Extraterritorial recognition and effect on marital status of decree of divorce rendered upon constructive or substituted service, 86 A.L.R. 1329; 143 A.L.R. 1294; 157 A.L.R. 1399; 163 A.L.R. 368; 1 A.L.R.2d 1385; 28 A.L.R.2d 1303.

Nonresidence of defendant or cross complainant in a suit for divorce as affecting power to grant divorce in his or her favor, 89 A.L.R. 1203.

Effect of noncompliance with statutes providing for appearance by prosecuting attorney or other representative of public in suit for divorce, 127 A.L.R. 732.

Jurisdiction upon constructive service in suit for divorce or separation as affected by relief sought in respect of separation agreement, 147 A.L.R. 673.

Power of court, in absence of express authority, to grant relief from judgment by default in divorce action, 157 A.L.R. 6; 22 A.L.R.2d 1312.

Default decree in divorce action as estoppel or res judicata with respect of marital property rights, 22 A.L.R.2d 724.

Decree in suit for separation as res judicata in subsequent suit for divorce or annulment, 90 A.L.R.2d 745.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 A.L.R.3d 212.

Right of one spouse, over objection, voluntarily to dismiss claim for divorce, annulment, or similar marital relief, 16 A.L.R.3d 283.

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.