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Koby v. Koby

The trial court should not have ordered custody of the parties' children to the father where the father's divorce petition sought only joint custody.

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We granted the application for discretionary appeal in this divorce case to determine if the trial court was correct in denying the motion to set aside the judgment. Finding that the trial court granted relief beyond that requested in the unanswered complaint, we affirm in part and reverse in part. Tina Elizabeth Bowen Koby and Thornton P. Koby were married in 1995. They separated in October of 2001; there were two children of the marriage. Mr. Koby filed a complaint for divorce in February 2002, and Ms. Koby signed an acknowledgment of service. Ms. Koby retained counsel but did not file any responsive pleading and no entry of appearance was filed on her behalf. A trial was held on August 7, 2002; Ms. Koby did not attend. The court granted the divorce, gave sole custody of the children to Mr. Koby, and awarded child support to be paid by Ms. Koby.

Ms. Koby moved to set aside the judgment of divorce. She claimed that she had not received notice of the trial, that Mr. Koby actively took steps to ensure that she not receive notice, and that she and Mr. Koby had reconciled during the pendency of the divorce. The trial court denied the motion.

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