One of the most important aspects of any legal action, whether family law or otherwise is notice – namely, whether each part had proper notice of the court filings, including petitions, motions, orders and final judgments. It doesn’t matter whether you think a certain document is “important.” Lack of notice can result in your case being dismissed or a judgment being vacated. The Georgia Supreme Court recently did just that in Wright v. Young. Wright v. Young, S15A0896, Supreme Court of Georgia (2015).
In that case, the parties divorced in 2010, but the husband alleged he never received notice of the final divorce decree. He didn’t learn that the divorce had even been finalized until late 2014 after he inquired with the clerk’s office regarding the status of the divorce proceedings. Id. Once he learned it had been finalized, he filed a motion to set aside. Without making any findings as to whether the husband had received notice of the final decree, the trial court denied the motion, and the husband appealed. The Supreme Court of Georgia vacated the order, citing Georgia law that “[I]t shall be the duty of the judge to file his or her decision with the clerk of court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.” O.C.G.A. §15-6-21(c). Interestingly, despite the entire case being about whether the husband received notice, the trial court “did not make any findings on the issue of notice” according to the Georgia Supreme Court. As such, the Court remanded the case to the trial court to determine this very issue.
According to the Court, “If on remand the trial court finds that notice was not given, then the trial court must grant the motion to set aside the final judgment, re-enter the final judgment, and allow the losing party 30 days from the re-entry date to seek appellate review.” It is likely that the husband filed the motion to set aside the final judgment because he was unhappy with the content of the final divorce decree. If he is successful in proving that he did not receive notice of the decree’s entry, he will then have 30 days from re-entry to appeal the order. This highlights the importance of proper notice – in this case, lack of notice could result in a four-year-old divorce decree being appealed and possibly vacated due to an error of the court.