Reynolds v. Reynolds ( 2015 )

296 Ga. 461FINAL COPY
S14A1656. REYNOLDS v. REYNOLDS.
HUNSTEIN, Justice.
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.
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,
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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.
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[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 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 those parties are unknown is a
showing that reasonable diligence has been exercised in attempting
to ascertain their whereabouts.
Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983)
(citations omitted). “[I]t is the duty of the courts to determine whether the
movant has exercised due diligence in pursuing every reasonably available
channel of information.” Id. Though the trial court makes this determination
initially, this Court must independently review whether the search for the
absentee party was legally adequate. Id.The record shows that there were obvious channels of information
available to Husband for locating Wife. Husband knew that Wife was living
with her boyfriend. In addition, a few days before the court issued an order
requiring service by publication, Wife was charged with criminal damage to
Husband’s property at an address in Forsyth, Georgia. Wife also contends that
there were three individuals, one of which was Wife’s daughter, who had
contact with both Wife and Husband and was aware of Wife’s address. Despite
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the availability of these potential sources for information, the record does not
indicate that Husband made an “honest and well directed effort to use them.”
Id. We are mindful that “[t]he typical divorce complainant usually knows
significant background information about the missing spouse, and therefore
usually has many feasible methods of tracking down the absentee.” Abba Gana,
251 Ga. at 344. We conclude that Husband could have ascertained Wife’s
address through reasonably diligent efforts but failed to do so. Therefore,
service by publication did not meet the constitutional requirements of due
process, and the court erred in denying Wife’s motion to set aside.1 See Pierce
v. Pierce, 270 Ga. 416 (511 SE2d 157) (1999) (reversing trial court’s denial of
the wife’s motion to set aside because service by publication did not meet the
constitutional requirements of due process); Abba Gana, 251 Ga. at 343-344(reversing trial court’s denial of the husband’s motion to set aside upon finding
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We note that Husband’s contentions in his pro se response to Wife’s motion
to set aside further indicate that he knew Wife was located in Georgia. However,
after the court issued the final judgment and decree of divorce and Wife filed her
motion to set aside several months later, it is unclear whether Husband still had
retained counsel and counsel was Husband’s attorney of record. If so, then
Husband’s pro se response should not have been considered by the trial court and
could not be considered by this Court. See Seagraves v. State, 259 Ga. 36, 39 (376
SE2d 670) (1989) (“a layperson does not have the right to represent himself and also
be represented by an attorney”). Regardless, Husband’s pro se allegations are not
necessary for our analysis here.
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that the court erred in authorizing service by publication because the wife had
not exercised due diligence in attempting to locate the husband).
In addition, OCGA § 9-11-4 (f) (1) (A) sets forth the requirements for
service by publication. Of relevance here, the movant is required to file an
affidavit with the court in support of service by publication, when service is
based on the absentee party’s residence outside of the state and an unknown
present address.
[T]he affiant shall state generally in the affidavit that at a previous
time such person resided outside this state in a certain place
(naming the place and stating the latest date known to affiant when
the party so resided there); that such place is the last place in which
the party resided to the knowledge of affiant; that the party no
longer resides at the place; that affiant does not know the present
place of residence of the party or where the party can be found; and
that affiant does not know and has never been informed and has no
reason to believe that the party now resides in this state; and, in
such case, it shall be presumed that the party still resides and
remains outside the state, and the affidavit shall be deemed to be a
sufficient showing of due diligence to find the defendant.
OCGA § 9-11-4 (f) (1) (A).
Husband’s affidavit in support of service by publication pursuant to this
statute was not sufficient. Husband failed to state that Wife resided outside of
Georgia at a previous time and in a certain place; that this certain place was the
last place where Wife resided to Husband’s knowledge; that Wife no longer
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resided at this place; that he did not know where Wife presently resided or could
be found; and that he did not know, had never been informed, and had no reason
to believe that Wife now resided in Georgia. See OCGA § 9-11-4 (f) (1) (A).
Husband’s insufficient affidavit is further proof that he did not exercise due
diligence in locating Wife. See id.
Judgment reversed. All the Justices concur.
Decided February 2, 2015.
Domestic relations. Lamar Superior Court. Before Judge Wilson.
Handsford Law, Selinda D. Handsford, for appellant.
The Kendall Law Firm, Martin M. Kendall, for appellee.
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