O.C.G.A. § 19-5-10 (2019)
Duty of judge in undefended divorce cases; appointment of attorney; evidentiary hearings; evidentiary attacks on prior judgments
(a) In divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or shall appoint an attorney of the court to discharge that duty for him. An evidentiary hearing for the determination of the existence of the grounds for divorce and for the determination of issues of alimony, child support, and child custody and other issues is authorized but not required. If no evidentiary hearing is held, the determination of such matters may be made upon the verified pleadings of either party, one or more affidavits, or such other basis or procedure as the court may deem proper in its discretion. (b) The provisions of subsection (a) of this Code section shall apply to proceedings pending on July 1, 1987, as well as to proceedings filed on or after that date. (c) Any motion to set aside or other proceeding to attack a judgment which attacks a judgment entered in a divorce case prior to July 1, 1987, and which is based upon an alleged failure to properly establish evidence supporting the judgment must be commenced prior to July 1, 1988, or thereafter be totally barred. The bar established by this subsection is in addition to and not in lieu of any other statute or rule of law which would operate as a bar to such a motion or other proceeding; and this subsection shall not operate to revive any otherwise barred right to prosecute any such motion or other proceeding.
History
Orig. Code 1863, § 1687; Code 1868, § 1730; Code 1873, § 1735; Code 1882, § 1735; Civil Code 1895, § 2455; Civil Code 1910, § 2974; Code 1933, § 30-129; Ga. L. 1987, p. 565, § 2; Ga. L. 1990, p. 1315, § 1.
Annotations
Law reviews. For annual survey article discussing developments in domestic relations law, see 52 Mercer L. Rev. 213 (2000).
JUDICIAL DECISIONS Legislative intent. - Laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834, 1940 Ga. LEXIS 511 (1940). Duty imposed by law was clearly placed on trial judge, and not the solicitor general (now district attorney), al-
though the judge may appoint the solicitor general or some other attorney to discharge that duty for the judge. Boykin v. Martocello, 194 Ga. 867, 22 S.E.2d 790, 1942 Ga. LEXIS 677 (1942). Judge must hear evidence and determine legality of grounds alleged. - While there was no judgment by default in a divorce case, law meant no more than that in any divorce case when no defensive pleadings were filed it was incumbent upon the trial court to hear evi-
dence in support of the plaintiff’s grounds of divorce and make an affirmative finding therefrom that the grounds are legal and were sustained by proof. Harris v. Harris, 228 Ga. 562, 187 S.E.2d 139, 1972 Ga. LEXIS 842 (1972). Duties of attorney appointed by judge. - Since the solicitor general (now district attorney) was appointed to see that the grounds of a divorce were legal, and sustained by proof, the solicitor general might introduce evidence, and enter fully into the defense of the case. Creamer v. Creamer, 36 Ga. 618, 1867 Ga. LEXIS 108 (1867); Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95, 1953 Ga. LEXIS 299 (1953). No authority to grant relief beyond pleadings. - Although O.C.G.A. § 195-10 allows a court presiding over an undefended divorce case to conduct a hearing and make a determination on child support, it does not authorize a court to grant relief beyond that requested in the pleadings. Hackbart v. Hackbart, 272 Ga. 26, 526 S.E.2d 840, 2000 Ga. LEXIS 71 (2000). Verified complaint and affidavit supported judgment of divorce and division of property. - Although a de-
fault judgment was not permissible in a divorce case, O.C.G.A. § 19-5-8, a trial court did not err in entering a judgment of divorce on the pleadings pursuant to O.C.G.A. § 19-5-10(a) after a wife failed to file responsive pleadings, thereby waiving notice of the hearing under O.C.G.A. § 911-5. The trial court properly relied on the husband’s verified complaint and domestic relations affidavit in dividing the parties’ property. Ellis v. Ellis, 286 Ga. 625, 690 S.E.2d 155, 2010 Ga. LEXIS 117 (2010). Award of child support. - Since the husband was a Georgia resident and was personally served, the trial court erred to the extent that the court based the refusal to award child support upon the fact that his whereabouts were unknown; because he was served in Georgia and his current location was irrelevant to the jurisdiction of the trial court to determine his obligation for the support of his child. Russ v. Russ, 272 Ga. 438, 530 S.E.2d 469, 2000 Ga. LEXIS 475 (2000).