Franek v. Ray

• Decision Date: 21 June 1977
• Docket Number: No. 31982,31982
• Court: Georgia Supreme Court
• Parties: Robert A. FRANEK v. Victoria J. RAY.

Page 629

236 S.E.2d 629

239 Ga. 282

Robert A. FRANEK v. Victoria J. RAY.

No. 31982.

Supreme Court of Georgia.

June 21, 1977.

Donner, Brown & Rosenbluth, Atlanta, Richard T. Winegarden, Lawrenceville, for appellant.

William P. Smith, III, Decatur, for appellee.

BOWLES, Justice.

This is an interlocutory appeal from an order of the Superior Court of DeKalb County. The sole issue before this court is whether the Superior Court had jurisdiction to determine and modify custody of the two minor children of the parties.

Robert A. Franek, the appellant, and Victoria J. Ray, the appellee, were divorced on June 21, 1974, custody of their two minor children being granted to the appellee pursuant to an agreement by the parties. On January 24, 1975, by order of the Superior Court of DeKalb County, custody of the children was taken from the appellee and granted to the appellant. In June, 1976, in accordance with the visitation privileges, set forth in the custody decree of January, 1975, the appellant delivered the two minor children to the appellee with the understanding that they were to be returned to the appellant one month later. On June 16, 1975, the appellee filed a petition for a change of custody in the Superior Court of DeKalb County, but no service was had on the appellant at that time. Subsequent to the filing of this petition, the appellant removed himself from the State of Georgia and became physically located in the State of Texas. The appellant contended that the move was prompted by a change in employment, and was not personally served with process in regard to the June 16th suit until September 27, 1976, service being made upon him in Houston, Texas, by a sheriff of that state.

On the date when the children were to be returned to the custody of appellant, the appellee notified the appellant that she would not release the children to him. The appellant thereupon filed a petition in the Superior Court of DeKalb County for citation of contempt on September 2, 1976, seeking to regain custody under the existing order of January, 1975. A consolidated hearing on the petition for change in custody and petition for citation of contempt was held on October 18, 1976 before a judge of the Superior Court of DeKalb County to decide whether or not the court had jurisdiction over the custody issue. There was no testimony given at the hearing nor was any transcript of the argument of counsel made. The trial judge decided that jurisdiction over the children of the parties for purposes of determining matters of custody was properly laid in the Superior Court of DeKalb County. It is from this order that appellant moved for a Certification of Immediate Review, which was signed by the trial judge, and granted by this court.

It is well settled in this state that after an award of custody, any further proceedings relating to the custody of the children must be brought in the county wherein the defendant resides. Goodloe v. Goodloe, 211 Ga. 894, 89 S.E.2d 654 (1955). Where a divorce decree is granted and custody is awarded to one parent who then moves to another county, a petition for change of custody brought by the other parent in the previous county would have to be dismissed for improper venue. Gibbs v. North, 211 Ga. 231, 84 S.E.2d 833 (1954). When the parent awarded custody in Georgia moves to a foreign state, that state, and not Georgia, has jurisdiction over any new questions as to custody. Locke v. Locke, 221 Ga. 603, 146 S.E.2d 273 (1965); Van Gorder v. Van Gorder, 227 Ga. 255, 179 S.E.2d 750 (1971).

The facts before us present this court with a novel question. It is clear that proper venue is correctly laid only in the Superior Court of the county wherein the appellant resides. However, because the appellant was a resident of DeKalb County, Georgia, when the suit was initially filed and then moved to Houston, Texas, prior to service of process, this court must determine the particular point of time to focus upon in determining residence of the defendant for purposes of venue. In other words, should the court look at the residence of a defendant at the time a petition is filed in the Clerk's office, or should the courts look to the date of service upon the defendant in determining residence for purposes of establishing proper venue.

Appellant contends that a suit commences only after the filing of a complaint and the proper service of process upon the defendant. He argues, that since he was not a resident of DeKalb County, Georgia, at the time of service upon him in Texas, venue was improper in the Superior Court of DeKalb County and this suit, therefore, should be dismissed. We disagree with appellant's position and hold that since a suit commences with the filing of a petition alone, appellant being a resident of DeKalb County, Georgia, at that time, venue was properly laid in the Superior Court of that county.

Several older decisions of this court have stated that a suit commences only after the filing of a petition in the Clerk's office and the proper service of process upon the defendant. Cherry v. North and South Railroad Co., 65 Ga. 633 (1880); McClendon v. Hernando Phosphate Co., 100 Ga. 219, 28 S.E. 152 (1896); Nicholas v. British America Assurance Co., 109 Ga. 621, 34 S.E. 1004 (1900); Cox v. Strickland, 120 Ga. 104, 47 S.E. 912 (1904). In McFarland v. McFarland, 151 Ga. 9(2), 105 S.E. 596 (1921), the court expanded upon their interpretation of these cases and stated that "filing followed by service creates a pending suit...