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Howington v. Howington

The wife did not show harm from the 7-year delay in the husband's motion to set aside the parties' divorce decree.

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Josie Howington appeals from the trial court’s order setting aside a divorce decree and directing her to reimburse her former spouse, Douglas Howington, for certain pension benefits she received. Finding no error, we affirm. Josie Wife and Douglas Husband Howington were married in 1989. They separated six years later, and in May 1997 Wife filed an action for divorce in DeKalb County, the county in which she lived. Wife served the complaint for divorce on Husband’s son, who lived in Fulton County, although at the time the action was filed Husband was living in North Carolina. Husband did not answer the complaint and he did not appear at a scheduled November 1997 hearing, at the conclusion of which the trial court issued a final judgment and decree of divorce. In addition to granting a divorce, the court awarded Wife one-half of Husband’s civil service pension for life. An amended qualified domestic relations order QDRO was issued on February 17, 1998 in accordance with Part 838 of Title 5 of the Code of Federal Regulations.

Husband filed a motion to set aside the divorce decree in June 2004, claiming he was not properly served. In her response, Wife argued that the motion was barred by laches because Husband knew Wife filed the complaint for divorce, he received a copy of the complaint, and he discussed the terms of the divorce with her. The trial court granted the motion to set aside on December 15, 2004, finding that Husband was not formally served with the complaint and that he did not waive service of process. An amended order setting aside the final decree was entered in October 2005 to further “set aside any subsequent Order which purports to distribute any assets between the parties including the Amended QDRO dated February 17, 1998.”

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