Generally, Georgia law authorizes entry of default judgments against defendants who fail to timely file defensive pleadings in civil actions. That general rule, however, does not apply to defendants in designated domestic relations cases. This article will discuss the consequences of a defendant’s failure to answer or otherwise plead in response to a complaint filed in such domestic relations cases.
Simply put, in divorce, alimony, and child custody cases, Georgia law expressly precludes entry of a default judgment. “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…”(1)
In divorce, alimony, and child custody cases, the preclusion against entry of default judgments applies in most, if not all, procedural contexts. For instance, a court cannot strike a defendant’s pleadings and then enter a default judgment against the defendant as a penalty for discovery violations in such domestic relations cases, although it could do so in other civil actions.(2)
The prohibition against default judgments in divorce, alimony, and child custody cases encompasses all claims asserted in such cases that arise only as the result of the underlying action or that are integral parts of the underlying action.(3) For example, in a divorce action, a court cannot grant a default judgment on the plaintiff’s request for equitable division of marital property. A court cannot even grant a default judgment against a third-party joined as a codefendant in the action in order to facilitate resolution of the spouses’ claims to marital property.(4)
Because the law precludes default judgments in divorce, alimony, and child custody cases, a defendant who fails to plead in response to a complaint retains the right to appear and contest at trial.(5) The defendant also can raise an issuable defense to the plaintiff’s claims in a pretrial order or in a filed pleading other than an answer to the complaint.(6)
Whether or not a defendant who failed to file defensive pleadings in a divorce, alimony, or child custody case appears at trial, a court may enter judgment against that defendant as long as it hears evidence in support of the plaintiff’s grounds for relief and finds that the grounds are legal and sustained by proof.(7) The law will not construe such a judgment as a default judgment.(8) Nonetheless, as with a default judgment, when the defendant has not filed an answer, governing law precludes the court from awarding relief beyond that sought in the complaint, even when the defendant fails to appear at trial. Nor can the court permit amendment of the complaint to conform to the evidence, in order to grant any relief not sought in the complaint.(9) For instance, in a divorce case in which the wife’s complaint sought joint legal custody and primary physical custody of the parties’ minor child, the court could not award wife sole legal and physical custody of the child, notwithstanding that husband did not answer the complaint or appear at trial.(10)
(1) O.C.G.A. § 19-5-8. (2) Harold v. Harold, 286 Ga. 175, 176, 686 S.E.2d 123 (2009). (3) Brown v. Brown, 271 Ga. 887, 888,525 S.E.2d 359 (2000). (4) Id. (5) Rymuza v. Rymuza, 292 Ga. 98, 100(2), 734 S.E.2d 384 (2012). (6) Blaylock v. Blaylock, 277 Ga. 56, 586 S.E.2d 650 (2003). (7) Rymuza, supra, 292 Ga. at 101(2), citing Hammack v. Hammack, 281 Ga. 202, 203, 635 S.E.2d 752 (2006). (8) Rymuza, supra, 292 Ga. 100-101(2). (9) Daggy v. Daggy, No. A22A1305, *1 (1) (Ga. Ct. App., December 27, 2022). (10) Id.