Crenshaw v. Crenshaw

471 S.E.2d 845, 267 Ga. 20, 96 Fulton County D. Rep. 2262, 1996 Ga. LEXIS 362

• Court: Supreme Court of Georgia
• Decided: June 17, 1996
• Docket: S96A0363
• Status: Published

Opinions

Fletcher, Presiding Justice.

We granted the discretionary application in this case to consider whether notice by publication to a pro se party satisfies due process when the party’s address is known and to consider the scope of a lawyer’s professionalism duties to a pro se opposing party. Because we are able to decide this case on a narrower basis, we do not reach the broader issues. The record demonstrates that here the notice to the wife, a pro se litigant, in a divorce action involving children was not reasonably designed to insure that she had notice of the trial date and, thus, was inadequate to meet due process requirements. Therefore, we reverse the trial court’s denial of the wife’s motion to set aside.

The record shows that when the wife filed for divorce, she was represented by counsel. Her counsel withdrew with permission of the court on January 4,1995. Her counsel’s notification to her, which was filed with the court, stated that “services of notices will be made upon the client at her last known address.”¹ The notification included the wife’s correct mailing address. Subsequent to counsel’s withdrawal, a trial calendar listing the Crenshaws’ divorce case as number 11 on February 6 was published in the Fulton County Daily Report. Prior to February 6, the husband’s counsel learned that the case had moved to number 5 and, therefore, the husband and his counsel appeared on February 6. Neither the court nor husband’s counsel informed the wife of the trial date. The trial court heard the case in the wife’s absence. It granted the husband’s counterclaim for divorce, denied the wife’s claim for alimony, gave custody of the couple’s minor daughter to the wife, and reduced the amount of child support that had been awarded on a temporary basis. When the wife learned of the divorce judgment, she filed a motion to set aside under OCGA § 9-11-60 (d), which the trial court denied.

1. Due process requires that a pro se litigant in a divorce action involving children receive adequate notice of the trial date.² At a final divorce hearing, a trial court must decide which parent will retain custody of the minor children, must establish reasonable visitation, and must make provision for the support of the children following statutory guidelines. The parties to the divorce action must be given a reasonable opportunity to be heard on these issues. Additionally, providing pro se parties with reasonable notice of the final hearing is in keeping with the legislative mandate that the trial court consider all the circumstances and render a decision that furthers the best interest of the children.³

The burden of providing adequate notice in these circumstances could fall on various shoulders. The burden could be placed on opposing counsel under notions of professionalism.⁴ The burden could be placed on counsel who withdraw by requiring them to notify clients of the proper place to look for published trial calendars. Finally, we could place the burden on the trial courts and clerks’ offices to provide notice by mail, as is the practice in many circuits. Deciding which of these best balances due process and other legitimate concerns is a complicated question that we need not decide today.

In this case, the trial court had the wife’s current mailing address; it knew that the wife was proceeding pro se; it knew that she had been informed by her former counsel upon his withdrawal that “services of notices will be made upon the client at her last known address.” Finally, because neither party sought summary judgment, a trial was required to resolve disputed issues involving the couple’s minor child. Under these circumstances, the notice by publication was not reasonably designed to insure that the wife had notice of the trial date and, therefore, was inadequate to meet due process requirements.⁵

2. Where a judgment is entered in contravention of a party’s due process rights to notice, a trial court is authorized to set the judgment aside under OCGA § 9-11-60 (d).⁶ The trial court’s failure to set aside the judgment in this case was an abuse of discretion.

Judgment reversed.

All the Justices concur, except Benham, C. J., and Thompson, J., who concur specially, and Carley and Hines, JJ., who dissent.

1 Emphasis supplied.

2 See Green v. Green, 263 Ga. 551, 558 (437 SE2d 457) (1993) (Sears, J., concurring specially).

3 OCGA § 19-9-3.

4 Green, 263 Ga. at 554.

5 See Mullane v. Central Hanover Bank &c. Co., 339 U. S. 306, 314 (70 SC 652, 94 LE 865) (1950) (notice reasonably calculated, under all the circumstances, to afford parties opportunity to be heard is requirement of due process).

6 Johnson v. Mayor &c. of Carrollton, 249 Ga. 173, 175-176 (288 SE2d 565) (1982).