Black v. Black

• Decision Date: 25 March 2013
• Docket Number: No. S12F1502.,S12F1502.
• Parties: BLACK v. BLACK.
• Court: Georgia Supreme Court

292 Ga. 691

740 S.E.2d 613

BLACK

v.BLACK.

No. S12F1502.

Supreme Court of Georgia.

March 25, 2013.

Susan Dalton Raymond, Hogue & Hogue, Macon, John Chase Wilson, Macon, for appellant.

A. James Rockefeller, Warner Robins, for appellee.

BLACKWELL, Justice.

Aaron Charles Black and Michelle Lee Black were married in 1996, and after four children were born of their marriage, they were divorced in Houston County. Michelle appeals from the final decree of divorce, ¹ contending that the trial court was without jurisdiction to grant a divorce, that it erred when it refused to stay its proceedings in favor of pending divorce proceedings in New York, and that it erred in its final decree with respect to an equitable division of marital property, child support, and a provision that evidently was intended to enable Michelle to retain her health insurance. We agree that the trial court erred with respect to a deviation from the presumptive amount of child support to account for the payment of life insurance premiums, and we also agree that the trial court erred in its framing of the provision to enable Michelle to retain her health insurance, so we vacate those portions of the decree and remand for further proceedings consistent with this opinion. We find no other error, however, and we otherwise affirm the final decree of divorce.

1. We first consider whether the trial court had jurisdiction to grant a divorce in this case, and we begin our consideration with OCGA § 19–5–2, which provides in pertinent part that “[n]o court shall grant a divorce to any person who has not been a bona fide resident of this state for six months before the filing of the petition for divorce.” ² As we have explained before, the party petitioning for a divorce bears the burden to prove that he was a “bona fide resident” of Georgia for the time required by OCGA § 19–5–2, and to carry that burden, the petitioner must show that he was domiciled in Georgia for the six months preceding his filing of the petition. Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590(1), 690 S.E.2d 397 (2010). We also have explained that, to show such domicile, the petitioner must prove that he maintained actual residence in Georgia during the relevant time and that he had an intent at that time to remain in Georgia indefinitely.³Padron v. Padron, 281 Ga. 646, 646, 641 S.E.2d 542 (2007). See also Conrad v. Conrad, 278 Ga. 107, 108, 597 S.E.2d 369 (2004) (“[Domicile] requires both act and intent to establish a residence, and either without the other is insufficient.” (Citation and punctuation omitted)). In this case, the trial court heard evidence on the domicile of the parties, and although some evidence pointed each way, the trial court found that Aaron “[was] here in Houston County for years and there was an intention to remain in this place for an indefinite period of time.” So long as any evidence appears in the record to support these findings, we must accept them. Rymuza v. Rymuza, 292 Ga. 98, 102(4), 734 S.E.2d 384 (2012).

We think that the evidence of record is sufficient to support the findings of the trial court on domicile. Aaron filed his petition for divorce on April 13, 2010, so the time for which his domicile mattered with respect to jurisdiction is the six months preceding that date. See OCGA § 19–5–2. In the course of the proceedings below, there was testimony that Aaron is a noncommissioned officer in the Air Force, that he is posted at Robins AFB, that he and Michelle first moved to Georgia in August 2000, that they lived together in military housing until 2004, that they bought their own home in the Warner Robins area in 2004 and lived together in that home for a few months, that Michelle and the children continued to live in that home after Aaron and Michelle separated until sometime in 2010, that Aaron moved into an apartment in the Warner Robins area when he and Michelle separated, that Aaron has continued to live in the Warner Robins area since that time, that his parents live in Georgia, and that he intends to continue serving in the Air Force for as many as ten more years. There was no evidence that Aaron had any intent at any time to relocate to any other jurisdiction. Although there was some evidence that Aaron and Michelle have some ties to New York, Aaron testified that he never has lived in New York. Some evidence supports the findings of the trial court on domicile, and for that reason, we cannot say that the trial court was without jurisdiction to grant a divorce in this case.

2. Next, we consider whether the trial court erred when it refused a stay. A few days before Aaron filed his petition for divorce, Michelle filed a petition for divorce in a New York court. Michelle contends that the Georgia trial court should have stayed its proceedings in favor of the New York proceedings for two reasons. First, she says, the New York court properly had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), OCGA § 19–9–40 et seq., to resolve questions concerning the custody of their children, and the UCCJEA absolutely required a stay of the Georgia proceedings, at least as to questions of child custody, until the New York court determined the proper forum in which to resolve those questions. Second, she argues, a trial court inherently has discretion to stay its proceedings in favor of earlier filed proceedings in another forum, and the interest of judicial economy compelled an exercise of that discretion in this case. We are not persuaded that the trial court erred when it refused to stay its proceedings in favor of New York.

(a) Generally speaking, a Georgia court cannot exercise jurisdiction to determine child custody “if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [the UCCJEA],” ⁴OCGA § 19–9–66(a), and if a Georgia court finds “that a child custody proceeding has been commenced in a court in another state having jurisdiction substantiallyin accordance with [the UCCJEA],” the Georgia court must stay its proceedings and permit the foreign court to determine the most appropriate forum in which to resolve questions of child custody. OCGA § 19–9–66(b). A court has “jurisdiction substantially in accordance with [the UCCJEA]” if it is a court of the state that “is the home state of the child on the date of the commencement of the proceeding” or “was the home state of the child within six months before the commencement of the proceeding and the child is absent from [the] state but a parent or person acting as a parent continues to live in [the] state.” OCGA § 19–9–61(a). See also Bellew v. Larese, 288 Ga. 495, 498, 706 S.E.2d 78 (2011) (“Under the UCCJEA, a court's subject matter jurisdiction to make an initial child custody determination is heavily dependent on the question of whether the court is of a state that is the child's ‘home state.’ ” (Citations omitted)). The UCCJEA defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” OCGA § 19–9–41(7).

In this case, the record shows that Michelle and the children had lived in Georgia since 2000 and continued to live in Georgia until sometime after Michelle and Aaron filed their respective petitions for divorce. For that reason, Georgia was the “home state” of the children for the purposes of the UCCJEA, and New York was not. Consequently, the trial court below had jurisdiction to determine questions of child custody, and it was not required under the UCCJEA to stay its proceedings in favor of any proceedings in New York. See Croft v. Croft, 298 Ga.App. 303, 306–307(1)–(2), 680 S.E.2d 150 (2009).

(b) A trial court has, as Michelle contends, “discretion to stay a Georgia proceeding pending the disposition of a prior pending action in another jurisdiction.” Flagg Energy Dev. Corp. v. General Motors Corp., 223 Ga.App. 259, 261(2), 477 S.E.2d 402 (1996) (citations and punctuation omitted). See also Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 485, 198 S.E.2d 144 (1973) (“The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” (Citation and punctuation omitted)). That said, whether and to what extent a stay is warranted by the interest of judicial economy “calls for [an] exercise of judgment, which must weigh competing interests and maintain an even balance.” Bloomfield, 230 Ga. at 485, 198 S.E.2d 144 (citation and punctuation omitted). Here, we see no abuse of discretion in the failure of the trial court to stay its proceedings. The proceedings in New York, though commenced first, were commenced only six days before the proceedings in Georgia, such that the New York proceedings had not progressed far by the time the Georgia proceedings were underway. That circumstance, along with the fact that the parties had lived in Georgia for ten years, that their marital residence was located in Georgia, that most of the marital property was located in Georgia, and that Georgia was the “home state” of the children for purposes of the UCCJEA, renders the decision of the trial court to proceed on the petition filed by Aaron a reasonable one.

3. We turn now to the contention that the trial court erred with respect to its division of marital property. As the finder of fact, ⁵ the trial court had “broad discretion to distribute marital property to assure that property accumulated during the marriage [was] fairly divided between the parties, and an award will be overturned only if it falls outside this discretion.” Pennington v. Pennington, 291 Ga. 165, 168(4)(a), 728 S.E.2d 230 (2012) (citations and punctuation omitted)....