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Kuriatnyk v. Kuriatnyk

The trial court harmfully erred in denying the husband's motion for a new trial without holding the required hearing for oral argument.

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Dayna Kuriatnyk Wife and Richard Michael Kuriatnyk Husband were married in 2007 and lived in Florida. After their only child was born in April 2008, Wife and the child moved to Georgia. Wife brought this divorce action in Georgia on December 11, 2008. Husband was served with the verified complaint in Florida, but did not file any motion or answer. The trial court entered a final divorce decree, “upon evidence submitted as provided by law,” awarding to Wife sole legal and physical custody of the parties’ child, as well as child support in the amount of $750 per month. Husband filed a motion to set aside or, in the alternative, for a new trial. The trial court entered an order noting the absence of any supporting affidavits, depositions, or verified pleadings, and stating that “the Motion to Set Aside is DENIED and the Motion for New Trial is DENIED.” Husband applied for discretionary review, which we granted pursuant to our Pilot Project in divorce cases.

All of Husband’s enumerations on appeal were initially raised in the post-judgment motion. The extent to which the post-judgment motion was for a new trial or to set aside depends upon whether the issues raised related to a motion to set aside under OCGA § 9-11-60 d, as “substance, rather than nomenclature, governs pleadings, cits.” Martin v. Williams , 263 Ga. 707, 708 1 438 SE2d 353 1994. See also Stamps v. Nelson , 290 Ga. App. 277, 279 2, fn. 3 659 SE2d 697 2008.

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