Abernathy v. Abernathy

Decision Date03 March 1997
Docket NumberNo. S96A1770,S96A1770
Parties, 97 FCDR 676 ABERNATHY, a/k/a Denny v. ABERNATHY.
CourtGeorgia Supreme Court

John P. Partin, Hirsch, Partin, Grogan & Grogan, P.C., Columbus, for Elizabeth Susan Denny.

Leslie L. Cohn, Cohn & Cohn, Columbus, for John Michael Abernathy.

Joseph T. Tuggle, Jr., McCamy, Phillips, Tuggle & Fordham, Dalton, Kutner & Bloom, Jean Miller Kutner, Atlanta, amici curiae.

CARLEY, Justice.

Elizabeth Susan Denny and John Michael Abernathy were married in Florida and resided in Louisiana until their separation. Thereafter, Mr. Abernathy moved to Georgia and, about a year later, he brought this divorce action against Ms. Denny. In his complaint, Mr. Abernathy requested only that he be awarded a total divorce from Ms. Denny and that the property located in Georgia be awarded to him. After Ms. Denny filed an answer raising the defense of lack of personal jurisdiction, Mr. Abernathy filed a "motion to determine jurisdiction and/or dismiss defenses of special appearing defendant." The trial court, Douglas C. Pullen, J., conducted a hearing on Mr. Abernathy's motion and concluded that it had "jurisdiction over the res of the marriage relationship" and "in rem jurisdiction with respect to [the] property located within this State." The trial court certified its order for immediate review and we granted Ms. Denny's application for an interlocutory appeal.

Ms. Denny insists that the trial court erred in ruling that it has personal jurisdiction over her. However, the trial court never ruled that it has personal jurisdiction over Ms. Denny. Instead, the trial court ruled only that it has jurisdiction over the res of the marriage so as to determine the issue of divorce and in rem jurisdiction over the marital property located in this state so as to determine the issue of the division of that property. Accordingly, if the trial court has jurisdiction over the marriage and the marital property in Georgia, the order was correct without regard to the trial court's lack of personal jurisdiction over Ms. Denny herself.

Personal jurisdiction over the defendant is not a prerequisite to the grant of a divorce by a Georgia court. Charamond v. Charamond, 240 Ga. 34, 35(2), 239 S.E.2d 362 (1977). The party seeking a divorce need show only that the trial court has jurisdiction over the res of the marriage which results from his or her domicile in this state for the six-month period preceding the filing of the action. OCGA § 19-5-2; Charamond v. Charamond, supra; Abou-Issa v. Abou-Issa, 229 Ga. 77-78, 189 S.E.2d 443 (1972).

[E]ach state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.

Williams v. North Carolina, 317 U.S. 287, 298-299, 63 S.Ct. 207, 213, 87 L.Ed. 279 (1942); Page v. Page, 255 Ga. 145, 146(1)(a), 335 S.E.2d 865 (1985). "[T]he divorce granted one spouse in one state will bind the other spouse in his or her domicile if the requirements of procedural due process are met." Page v. Page, supra at 146(1)(a), 335 S.E.2d 865.

Accordingly, any reliance upon the Long Arm Statute in this case is erroneous because that statute deals only with the exercise of personal jurisdiction over nonresidents. OCGA § 9-10-91. The Long Arm Statute does not apply in every case in which the defendant is a nonresident. It applies only in cases in which personal jurisdiction over the nonresident defendant is required. Accordingly, compliance with the Long Arm Statute would be mandated in this case if the trial court's personal jurisdiction over Ms. Denny was necessary to its adjudication of Mr. Abernathy's claims against her. However, the trial court was not required to have personal jurisdiction over Ms. Denny in order to adjudicate Mr. Abernathy's claim for divorce. After Mr. Abernathy obtained proper service by publication, the clerk of the trial court mailed a copy of the published notice to Ms. Denny. Ms. Denny had actual notice of the pendency of the divorce action and, indeed, made a special appearance to contest personal jurisdiction. In these circumstances, the trial court clearly has jurisdiction to grant a divorce based on service by publication. Albers v. Albers, 238 Ga. 590, 591(1), 234 S.E.2d 507 (1977). See also Chafin v. Burroughs, 224 Ga. 774, 164 S.E.2d 826 (1968); Marbury v. Marbury, 256 Ga. 651, 652(1), 352 S.E.2d 564 (1987).

It is certainly true that a trial court with jurisdiction to grant a divorce cannot award either alimony or attorney's fees unless it also has personal jurisdiction over the defendant. Anthony v. Anthony, 237 Ga. 753, 754, 229 S.E.2d 609 (1976); Hammers v. Hammers, 230 Ga. 711, 198 S.E.2d 656 (1973); Hicks v. Hicks, 193 Ga. 446(1), 18 S.E.2d 754 (1942). The award of such monetary judgments must be predicated upon the trial court's personal jurisdiction over the defendant. Here, however, the trial court awarded neither alimony nor attorney's fees. In addition to a divorce from Ms. Denny, Mr. Abernathy prayed only for a division of the marital property located in Georgia. A lack of personal jurisdiction does not prevent the trial court from entering certain other judgments in rem. Personal jurisdiction in Georgia may be required in order to obtain a judgment which will personally bind a nonresident defendant as to marital property located in another forum. See OCGA § 9-10-91(5). However, notwithstanding a lack of personal jurisdiction over the defendant in a divorce case, a trial court can render a valid judgment in rem with respect to the res of the property within its territory. Albers v. Albers, supra at 592(3), 234 S.E.2d 507; Anthony v. Anthony, supra at 754, 229 S.E.2d 609; Grimmett v. Barnwell, 184 Ga. 461, 478(2), 192 S.E. 191 (1937). Mr. Abernathy does not seek a division of marital property which is located in Louisiana or any state other than Georgia. It follows that the trial court not only has jurisdiction to grant Mr. Abernathy a divorce, it also has in rem jurisdiction to determine the respective interests of Mr. Abernathy and Ms. Denny in any marital property located in this state.

It is urged that Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) has changed the above-stated legal principles. However, Shaffer did not hold that it is unconstitutional for a state court to exercise its in rem jurisdiction and that only a state court's exercise of its personal jurisdiction is constitutional. All that Shaffer, supra at 212, 97 S.Ct. at 2584, holds is that assertions of state-court jurisdiction, whether in rem or in personam, must satisfy the "minimum contacts" standard. As Shaffer, supra at 208, 97 S.Ct. at 2582, itself clearly pointed out,

jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state-court jurisdiction must satisfy the ["minimum contacts"] standard.

(Emphasis supplied). Shaffer v. Heitner, supra at 208, 97 S.Ct. at 2582. Accordingly, Mr. Abernathy's divorce action does not violate applicable constitutional mandates if the "minimum contacts" standard for an in rem action is satisfied, without regard to Ms. Denny's own personal lack of direct contact with Georgia.

The limited holding of Shaffer, supra at 208-209, 97 S.Ct. at 2581-2582, is that the mere presence of property in a state, standing alone, will not constitute sufficient "minimum contacts" to support the state's exercise of its in rem jurisdiction, if the property is unrelated to the underlying cause of action. Thus, the "minimum contacts" standard does not foreclose the exercise of state-court jurisdiction over a true in rem action or a case wherein the plaintiff " 'is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons,' " or "when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant." Shaffer v. Heitner, supra at 199 fn. 17, 207, 97 S.Ct. at 2577 fn. 17, 2581. Obviously, a dispute between divorcing resident and non-resident parties as to marital property located in Georgia would constitute such a claim. In such a case, there is more than the mere presence of property to support the in rem jurisdiction of a Georgia court to determine the dispute.

[T]he defendant's claim to property located in the State would normally indicate that he expected to benefit from the State's protection of his interest. The State's strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.

Shaffer v. Heitner, supra at 207-208, 97 S.Ct. at 2581-2582. When service by publication is used not merely to compel the presence of the defendant or for some other purpose extraneous to the litigation, but to adjudicate rights in the very property upon which in rem jurisdiction is based, the "minimum contacts" test is met. Shaffer v. Heitner, supra; Chenoweth v. Chenoweth, 575 S.W.2d 871, 873 (Mo.App.1978); In re Marriage of Breen, 560 S.W.2d 358, 363 (Mo.App.1977). Therefore, where, as here, the only property at issue in a Georgia divorce action is such marital property as is situated in Georgia and the nonresident spouse claims an interest therein, the Georgia property is the very subject of the litigation, and a Georgia court has full in rem jurisdiction which has not been substantively changed by Shaffer. Chenoweth v. Chenoweth, supra at 874. It is only that in rem jurisdiction which Mr. Abernathy invoked and the trial court exercised in this case.

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