Domestic relations. Lamar Superior Court. Before Judge Wilson.
Handsford Law, Selinda D. Handsford, for appellant.
The Kendall Law Firm, Martin M. Kendall, for appellee.
HUNSTEIN, Justice. All the Justices concur.
We granted the discretionary application of Appellant Dorothy M. Reynolds (Wife) pursuant to Supreme Court Rule 34 in this divorce case. For the reasons set forth below, we reverse the trial court's order denying Wife's motion to set aside.
Appellee Rex E. Reynolds (Husband), proceeding with counsel, filed a complaint for divorce alleging that Wife was a " non-resident of the State of Georgia, whose last known address is 103 Bradley Circle, Barnesville, Georgia 30204" and that Wife could be served by publication pursuant to OCGA § 9-11-4 (f) (1). Husband filed an affidavit affirming these facts. Based on these filings, the court issued an order for service by publication, and service by publication in the local paper was made. Husband subsequently filed a motion for judgment on the pleadings and served Wife with this motion at her last known address in Barnesville, Georgia. Thereafter, the court granted Husband's motion for judgment on the pleadings and entered a final judgment and decree of divorce between the parties.
[296 Ga. 462] Several months later, Wife, proceeding pro se, filed a verified motion to set aside the final judgment and decree of divorce, contending that Husband did not practice due diligence for service by publication as required by OCGA § 9-11-4 (f) (1) (A); Husband knew at the time he filed his complaint that Wife resided within Georgia; and Husband committed a fraud upon the court by alleging that Wife was a non-resident. Husband, proceeding pro se, filed a response, in which he stated that Wife was located " mostly in Jones County," and her non-resident status in his complaint and affidavit was a " typo." He further questioned how Wife could be deemed a non-resident when her address was in Barnesville, Georgia. Husband's certificate of service accompanying his response shows that he served Wife with his response at 323 Abernathy Street, Forsyth, Georgia, 31029.
Wife replied by filing a motion to suppress many of Husband's statements in his response. She asked the court to strike Husband's statement that her non-resident status was a typographical error because Husband's counsel would not have made such a mistake in filing the complaint, and instead, she contended that Husband had committed a fraud upon the court. Counsel for Husband filed an amended response to Wife's motion to set aside and motion to suppress, contending that if Wife did not receive notice of Husband's complaint for divorce, it was due to Wife's own negligence and fault.
Wife appeared pro se for a hearing on her motion to set aside and was instructed by the court to seek the assistance of counsel. Wife subsequently appeared with counsel for a hearing on her motion to set aside, but no hearing appears to be have been held. Instead, the court issued an order denying Wife's motion to set aside. This Court then granted Wife's discretionary application to appeal the court's order denying her motion to set aside and directed the parties to address whether the court erred by denying Wife's motion to set aside the divorce decree in regard to Wife's contention that service of the divorce action by publication was improper.
Wife argues that the trial court erred by granting an order for service by publication because Husband's affidavit did not meet the standards for service by publication pursuant to OCGA § 9-11-4 (f) (1) (A). She contends that no service was ever perfected upon her, she did not receive actual knowledge of the divorce action, and she was not present, either in person or through her counsel, for any hearing in the divorce action. She further asserts that the court did not hold a hearing on her motion to set aside.
[W]hether a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a [296 Ga. 463] proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding. Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of ...