Wife motion in Georgia

2017See Marks v. Soles, 339 Ga. App. 380, 384-385 (1) ( 793 SE2d 587 ) (2016) (no showing that court relied on evidence from temporary hearing or that the testimony from numerous witnesses was insufficient to support the court’s findings); compare Pace v. Pace, 287 Ga. 899, 900 ( 700 SE2d 571 ) (2010) (apparent from final divorce decree and subsequent order denying Wife’s motion for new trial that court relied substantially on its memory of unrecorded testimony from temporary hearing in determining custody). 3.

2017See Marks v. Soles, 339 Ga. App. 380, 384-385 (1) ( 793 SE2d 587 ) (2016) (no showing that court relied on evidence from temporary hearing or that the testimony from numerous witnesses was insufficient to support the court’s findings); compare Pace v. Pace, 287 Ga. 899, 900 ( 700 SE2d 571 ) (2010) (apparent from final divorce decree and subsequent order denying Wife’s motion for new trial that court relied substantially on its memory of unrecorded testimony from temporary hearing in determining custody). 3.

2017Accordingly, the trial court erred in denying Wife’s motion for attorney fees under Paragraph 28 of the settlement agreement, as the court “ ‘was without authority to alter the fee arrangement and thus nullify important provisions of the contract reached by [Wife] and [Husband] which had been made a part of [the divorce decree]” Roberts, 286 Ga. at 581 (citation omitted).

2017Accordingly, the trial court erred in denying Wife’s motion for attorney fees under Paragraph 28 of the settlement agreement, as the court “‘was without authority to alter the fee arrangement and thus nullify important provisions of the contract reached by [Wife] and [Husband] which had been made a part of [the divorce decree].’” Roberts, 286 Ga. at 581 (citation omitted).

2017See Marks v. Soles, 339 Ga. App. 380, 384-385 (1) ( 793 SE2d 587 ) (2016) (no showing that court relied on evidence from temporary hearing or that the testimony from numerous witnesses was insufficient to support the court’s findings); compare Pace v. Pace, 287 Ga. 899, 900 ( 700 SE2d 571 ) (2010) (apparent from final divorce decree and subsequent order denying Wife’s motion for new trial that court relied substantially on its memory of unrecorded testimony from temporary hearing in determining custody). 3.

2017See Marks v. Soles, 339 Ga. App. 380, 384-385 (1) ( 793 SE2d 587 ) (2016) (no showing that court relied on evidence from temporary hearing or that the testimony from numerous witnesses was insufficient to support the court’s findings); compare Pace v. Pace, 287 Ga. 899, 900 ( 700 SE2d 571 ) (2010) (apparent from final divorce decree and subsequent order denying Wife’s motion for new trial that court relied substantially on its memory of unrecorded testimony from temporary hearing in determining custody). 3.

2015Therefore, 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 *464 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 that the court erred in authorizing service by publication because the wife had not exercised due diligence in

2015Therefore, 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 1 We note that Husband’s contentions in his pro se response to Wife’s motion to set aside further indicate that he k

1945Code, § 53-505; Richardson v. Subers , 82 Ga. 427 ( 9 S.E. 172 ); Strickland v. Jones , 131 Ga. 409 ( 62 S.E. 322 ); Gill v. Willingham , 156 Ga. 728 (4) ( 120 S.E. 108 ).

1945Code, § 53-505; Richardson v. Subers , 82 Ga. 427 ( 9 S.E. 172 ); Strickland v. Jones , 131 Ga. 409 ( 62 S.E. 322 ); Gill v. Willingham , 156 Ga. 728 (4) ( 120 S.E. 108 ).

2009As to Husband’s actions, the only evidence in the record consists of the trial court’s written order dismissing Husband’s demand and an affidavit Husband submitted with his motion for new trial. 2 In its order, the trial court found that, when the case was called for trial, Husband’s counsel informed the trial court that Husband “was not present and was not going to appear for trial”; that counsel further informed the court that Husband had instructed counsel “to not participate in the trial of the case”; that the court released counsel from any further participation; and that the trial court

2007The appellate courts have recognized that a party may waive a right to jury trial by his or her actions, either by appearing at the hearing and allowing the bench trial to proceed without objection, e.g., Holloman v. Holloman, 228 Ga. 246 (1) ( 184 SE2d 653 ) (1971), or, in rare circumstances, “by conduct indicative of the fact that the right is not asserted” (punctuation omitted), Bonner v. Smith, 226 Ga. App. 3, 5 (4) ( 485 SE2d 214 ) (1997), i.e., by failing to appear in court after proper notification and ignoring motions filed by the opposing party, such as a motion for bench trial.

2026And we note that despite the fact that the trial court technically entered the order on Wife’s motion for new trial prior to the order finding her in contempt, there was no opportunity for the wife to comply with the order between the time of the denial of the motion for new trial and the finding of contempt.7 Hunnicutt v. Hunnicutt, 248 Ga. 516, 519 (3) ( 283 SE2d 891 ) (1981).

2026And we note that despite the fact that the trial court technically entered the order on Wife’s motion for new trial prior to the order finding her in contempt, there was no opportunity for the wife to comply with the order between the time of the denial of the motion for new trial and the finding of contempt.7 Hunnicutt v. Hunnicutt, 248 Ga. 516, 519 (3) ( 283 SE2d 891 ) (1981).

2025See, e.g., Walker v. State, 292 Ga. 262, 264-265 (2) ( 737 SE2d 311 ) (2013) (“Where, as here, the record reflects that the trial court applied an incorrect standard of review and, in so doing, failed to exercise its discretion and weigh the evidence in ruling on the merits of claims under OCGA §§ 5-5-20 and 5-5-21, the appellate court must vacate the judgment and remand the case to the trial court for consideration of the motion under the proper standard of review.”) (citation and punctuation omitted); Ward v. State, 353 Ga. App. 1 , 13 (3) ( 836 SE2d 148 ) (2019) (“When a trial court conside

2025See, e.g., Walker v. State, 292 Ga. 262, 264-265 (2) ( 737 SE2d 311 ) (2013) (“Where, as here, the record reflects that the trial court applied an incorrect standard of review and, in so doing, failed to exercise its discretion and weigh the evidence in ruling on the merits of claims under OCGA §§ 5-5-20 and 5-5-21, the appellate court must vacate the judgment and remand the case to the trial court for consideration of the motion under the proper standard of review.”) (citation and punctuation omitted); Ward v. State, 353 Ga. App. 1 , 13 (3) ( 836 SE2d 148 ) (2019) (“When a trial court conside

2025Thereafter, the trial court denied the motion, citing OCGA § 5-5-23 and Carr-MacArthur v. Carr, 296 Ga. 30, 34 (2) ( 764 SE2d 840 ) (2014) (identifying six criteria “[t]o obtain a new trial based on newly discovered evidence”), and found that Wife may have recognized what she perceived as discrepancies between what was negotiated between parties and what ultimately was finalized in the written Final Decree and Parenting Plan, but it did not rise to the level of being so material that it would probably produce a different result.

2025Thereafter, the trial court denied the motion, citing OCGA § 5-5-23 and Carr-MacArthur v. Carr, 296 Ga. 30, 34 (2) ( 764 SE2d 840 ) (2014) (identifying six criteria “[t]o obtain a new trial based on newly discovered evidence”), and found that Wife may have recognized what she perceived as discrepancies between what was negotiated between parties and what ultimately was finalized in the written Final Decree and Parenting Plan, but it did not rise to the level of being so material that it would probably produce a different result.

2022See generally Motlagh v. Motlagh, 100 NE3d 937, 942 (II) (Ohio App. 2017) (“Divorce is not a condition under which the sponsor’s obligations under Form I-864 can be terminated.”).

2022See Hann v. State, 292 Ga. App. 719, 720 (1) ( 665 SE2d 731 ) (2008); Drake v. Clutter, 194 Ga. App. 644, 645 ( 391 SE2d 473 ) (1990).

2022See Hann v. State, 292 Ga. App. 719, 720 (1) ( 665 SE2d 731 ) (2008); Drake v. Clutter, 194 Ga. App. 644, 645 ( 391 SE2d 473 ) (1990).

2022See Hann v. State, 292 Ga. App. 719, 720 (1) ( 665 SE2d 731 ) (2008); Drake v. Clutter, 194 Ga. App. 644, 645 ( 391 SE2d 473 ) (1990).

2022See Hann v. State, 292 Ga. App. 719, 720 (1) ( 665 SE2d 731 ) (2008); Drake v. Clutter, 194 Ga. App. 644, 645 ( 391 SE2d 473 ) (1990).

2019However, “the denial of a motion to set aside a final judgment under OCGA § 9-11-60 is not directly appealable and instead requires the filing of an application for discretionary appeal under OCGA § 5-6-35 (b).” Jim Ellis Atlanta v. Adamson, 283 Ga. App. 116, 116 ( 640 SE2d 688 ) (2006); see OCGA § 5-6-35 (a) (8).

2019However, “the denial of a motion to set aside a final judgment under OCGA § 9-11-60 is not directly appealable and instead requires the filing of an application for discretionary appeal under OCGA § 5-6-35 (b).” Jim Ellis Atlanta v. Adamson, 283 Ga. App. 116, 116 ( 640 SE2d 688 ) (2006); see OCGA § 5-6-35 (a) (8).

2017Wrightson v. Wrightson, 266 Ga. 493, 496 (3) ( 467 SE2d 578 ) (1996) (judgment provided visitation could be suspended by the child’s or appellant’s therapist if they determined that appellant was a risk to child). 8 determination, and that the evidence was “substantially unaltered” between the temporary and final hearings.

2017Wrightson v. Wrightson, 266 Ga. 493, 496 (3) ( 467 SE2d 578 ) (1996) (judgment provided visitation could be suspended by the child’s or appellant’s therapist if they determined that appellant was a risk to child). 8 determination, and that the evidence was “substantially unaltered” between the temporary and final hearings.

2015See Lawrence, supra, 286 Ga. at 313 (4) (One of the requirements that a party seeking enforcement of a prenuptial ageement must meet in order “[t]o satisfy the first prong of the Scherer test, ... [is to] show . .. that there was ‘a full and fair disclosure of the assets of the parties prior to the execution of the *119 antenuptial agreement’ ”) (citation and punctuation omitted).

2015See Lawrence, supra, 286 Ga. at 313 (4) (One of the requirements that a party seeking enforcement of a prenuptial ageement must meet in order “[t]o satisfy the first prong of the Scherer test, ... [is to] show . .. that there was ‘a full and fair disclosure of the assets of the parties prior to the execution of the *119 antenuptial agreement’ ”) (citation and punctuation omitted).

2014Wife’s motion sought relief pursuant to the court’s inherent power, pursuant to OCGA § 15-1-3 (6), to exercise discretion to amend or set aside a judgment, which may be done for any meritorious reason, provided the motion to set aside is filed during the term in which the judgment was rendered. 3 See Pope v. Pope, 277 Ga. 333, 334 ( 588 SE2d 736 ) (2003).

2014Wife’s motion sought relief pursuant to the court’s inherent power, pursuant to OCGA § 15-1-3 (6), to exercise discretion to amend or set aside a judgment, which may be done for any meritorious reason, provided the motion to set aside is filed during the term in which the judgment was rendered. 3 See Pope v. Pope, 277 Ga. 333, 334 ( 588 SE2d 736 ) (2003).

2012See Barngrover v. Hins, 289 Ga. App. 410, 414-415 ( 657 SE2d 14 ) (2008) (“Nothing in OCGA § 5-6-46 suggests that a trial court may refuse to require a supersedeas bond posted for the benefit of an appellee who seeks security for a money judgment ....”).

2012See Barngrover v. Hins, 289 Ga. App. 410, 414-415 ( 657 SE2d 14 ) (2008) (“Nothing in OCGA § 5-6-46 suggests that a trial court may refuse to require a supersedeas bond posted for the benefit of an appellee who seeks security for a money judgment ....”).

2012See OCGA § 9-11-15 (b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Howington v. Howington, 281 Ga. 242, 244 ( 637 SE2d 389 ) (2006) (holding that although Husband did not plead for reimbursement of pension benefits, the trial court did not err in granting Husband relief regarding those benefits because the issue was litigated without Wife’s objection).

2012See OCGA § 9-11-15 (b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Howington v. Howington, 281 Ga. 242, 244 ( 637 SE2d 389 ) (2006) (holding that although Husband did not plead for reimbursement of pension benefits, the trial court did not err in granting Husband relief regarding those benefits because the issue was litigated without Wife’s objection).

2012See Baars v. Freeman, 288 Ga. 835, 838 (2) (a) ( 708 SE2d 273 ) (2011) (remand appropriate where “the [trial court’s contempt] ruling rests on an erroneous legal premise”) (citation and punctuation omitted).

2012See Baars v. Freeman, 288 Ga. 835, 838 (2) (a) ( 708 SE2d 273 ) (2011) (remand appropriate where “the [trial court’s contempt] ruling rests on an erroneous legal premise”) (citation and punctuation omitted).

2009As to Husband’s actions, the only evidence in the record consists of the trial court’s written order dismissing Husband’s demand and an affidavit Husband submitted with his motion for new trial. 2 In its order, the trial court found that, when the case was called for trial, Husband’s counsel informed the trial court that Husband “was not present and was not going to appear for trial”; that counsel further informed the court that Husband had instructed counsel “to not participate in the trial of the case”; that the court released counsel from any further participation; and that the trial court