Conrad v. Conrad

• Decision Date: 07 June 2004
• Docket Number: No. S04F0304.,S04F0304.
• Citation: 278 Ga. 107,597 S.E.2d 369
• Parties: CONRAD v. CONRAD.
• Court: Georgia Supreme Court

597 S.E.2d 369

278 Ga. 107

CONRAD v. CONRAD.

No. S04F0304.

Supreme Court of Georgia.

June 7, 2004.

Reconsideration Denied June 29, 2004.

Weinstock & Scavo, Adam M. Gleklen, Alyson F. Finkelstein, Atlanta, for appellant.

Kupferman & Golden, Gregory D. Golden, Atlanta, for appellee.

HINES, Justice.

Elizabeth and Christopher Conrad were married in 1978. They lived in DeKalb County from 1995 until 1999 when Mr. Conrad's employer, CARE Incorporated, transferred him to South Africa on a temporary assignment. Ms. Conrad moved to South Africa with him. While in South Africa, she attended the University of Witwatersrand in Johannesburg. They sold their house in Georgia on July 19, 2002. Ms. Conrad retained her Georgia driver's license and voter registration card, both showing her address to be her daughter's apartment in DeKalb County.

On January 9, 2003, Ms. Conrad filed for divorce in the Superior Court of DeKalb County. Mr. Conrad moved to dismiss the complaint for lack of subject matter and personal jurisdiction. The trial court granted the motion, finding that it lacked subject matter jurisdiction because Ms. Conrad was not "a bona fide resident of this state for six months before the filing of the petition for divorce...." OCGA § 19-5-2.¹

Both parties advance legal arguments regarding the concepts of residence and domicile. See OCGA §§ 19-2-1; 19-5-2; Bass v. Bass, 222 Ga. 378, 149 S.E.2d 818 (1966); Williams v. Williams, 191 Ga. 437, 12 S.E.2d 352 (1940). But their arguments ignore the specific language of the trial court's order; the trial court made a factual finding that the persuasive evidence before it was that Ms. Conrad had abandoned her prior residence in Georgia and did not satisfy the residency requirement of OCGA § 19-5-2 at the time she filed the complaint. The trial court did not misapply the law.

As used in OCGA § 19-5-2, "resident" means "domiciliary." Worrell v. Worrell, 242 Ga. 44, 45(1), 247 S.E.2d 847 (1978).

The jurisdictional rules applicable to a divorce action in Georgia provide that "the domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence." ... OCGA § 19-2-1(b). "`It requires both act and intent to establish a residence, and either without the other is insufficient.' [Cit.]" [Cit.] "There must be a concurrence of actual residence and the intention to remain, to acquire a domicile. [Cits.] If a person actually removes to another place, with the intention of remaining there for an indefinite time as a place of fixed domicile, such place becomes his domicile."

(Emphasis in original.) Midkiff v. Midkiff, 275 Ga. 136, 137(1), 562 S.E.2d 177 (2002). A "floating intention to return" to a past residence does not retain that original domicile. See Patterson v. Patterson, 208 Ga. 7, 13(2), 64 S.E.2d 441 (1951).

Ms. Conrad's own affidavit stated that: the couple left their house in DeKalb County in 1999 to move to South Africa in what was intended to be a temporary move; in July 2002, the couple sold this house; after the sale, Ms. Conrad briefly lived with her daughter in her daughter's apartment in DeKalb County; she placed the address of her daughter's apartment in Atlanta, Georgia, on her driver's license and voter registration card; and she intended to return to "DeKalb County," or "Atlanta, Georgia."² As attachments to her affidavit, she submitted federal tax forms for the year 2001 which listed the couple's "bona fide residence" as Johannesburg, South Africa, and their " home address" as "care of" the offices of CARE Incorporated. The forms specifically stated that the couple did not maintain a home in the United States while living in South Africa.

The trial court noted that it was presented with conflicting evidence concerning Ms. Conrad's residence within the meaning of OCGA § 19-5-2.

A preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue whether made in a pleading or by motion may be heard and determined before trial on the application of any party. At such hearing factual issues shall be determined by the trial court. Factual determinations of the trier of fact will be reversed only where the evidence demands a contrary finding, and when the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence rule.

(Citations, and punctuation, omitted; emphasis in original.) McLendon v. Albany Warehouse Co., 203 09 Ga.App. 865, 866(1), 418 S.E.2d 130 (1992). To resolve the conflict, the trialcourt applied Prophecy Corp. v. Charles Rossignol, Inc. 256 Ga. 27, 343 S.E.2d 680 (1986). That opinion holds that, on mo15 tion for summary judgment, when a respondent offers self-contradictory testimony by the party-witness on an issue dispositive of the case, if the contradiction is not adequately explained, the contradictory testimony must be construed against the respondent. Id. at 28-30(1), 343 S.E.2d 680. See also Thompson v. Ezor, 272 Ga. 849, 851(1), 536 S.E.2d 749 (2000). Accordingly, the trial court relied upon the statements in Ms. Conrad's tax forms that her "bona fide residence" was in South Africa and that she did not maintain any home in the United States, and specifically found as a matter of fact that Ms. Conrad was not a resident of DeKalb County within the meaning of OCGA § 19-5-2.

Of course, the trial court was not addressing a motion for summary judgment, and a motion to dismiss on jurisdictional grounds is not converted into a motion for summary judgment by the introduction of evidence. See OCGA § 9-11-12(b); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615, 208 S.E.2d 459 (1974). Nonetheless, "[t]he rule in Georgia is that the testimony of a party who offers [herself] as a witness in [her] own behalf at trial "`is to be construed most strongly against [her] when it is self-contradictory, vague or equivocal.'" Douglas v. Sumner, 213 Ga. 82, 85, 97 S.E.2d 122 (1957); W & A Railroad Co. v. Evans, 96 Ga. 481, 23 S.E. 494 (1895)." Prophecy, supra at 28, 343 S.E.2d 680. Thus, the principle to be applied is the same, even in the posture of the case as presented to the trial court. The court properly applied the principle, and properly dismissed the case; under the persuasive evidence, Ms. Conrad simply had no residence in DeKalb County that she could claim as her domicile.

Ms. Conrad notes that the trial court did not declare what her place of domicile was, only that it was not in DeKalb County. But the trial court did not need to make such a finding; the only question before it was whether Ms. Conrad's residence was in DeKalb County within six months of the January 9, 2003 filing of the divorce action.³ See OCGA § 19-5-2.

Judgment affirmed.

All the Justices concur, except FLETCHER, C.J., and HUNSTEIN and CARLEY, JJ., who dissent.

FLETCHER, Chief Justice, dissenting.

The majority changes the well-established rule that an existing domicile continues until a new domicile is established and ignores the fact that under federal tax law, a person may be a "bona fide resident" of a foreign country and still maintain a U.S. domicile. Therefore, I dissent.

In Williams v. Williams, this Court, held that for the purpose of the residency requirements for divorce, "a domicile once established continues until a new domicile is acquired."⁴ In order to establish a new domicile, "a person must actually remove to another place with a present intention of remaining there as his place of domicile." ⁵ Even after a physical relocation, where there is an absence of intent to remain in the new location, the prior domicile continues. ⁶

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