Hatcher v. Hatcher, 27204

• Decision Date: 15 June 1972
• Docket Number: No. 27204,27204
• Citation: 229 Ga. 249,190 S.E.2d 533
• Parties: Dianne K. HATCHER v. William Wayne HATCHER.
• Court: Georgia Supreme Court

Page 533

190 S.E.2d 533

229 Ga. 249

Dianne K. HATCHER v. William Wayne HATCHER.

No. 27204.

Supreme Court of Georgia.

June 15, 1972.

Syllabus by the Court

The trial judge did not err in finding that the court in which the divorce complaint was filed had no jurisdiction of the person of the husband.

Marvin T. Morrow, Warner Robins, R. Joneal Lee, Perry, for appellant.

Austin J. Kemp, II, Warner Robins, Eva L. Sloan, Milledgeville, for appellee.

MOBLEY, Chief Justice.

This appeal is from the sustaining of a motion to dismiss a divorce complaint on the ground of lack of jurisdiction. The enumeration of errors asserts that the court erred in sustaining the motion, and in failing to rule that jurisdiction of the person was a question which should be decided by the jury.

Dianne K. Hatcher filed her complaint against William Wayne Hatcher on January 3, 1972, in Houston Superior Court. The husband filed a motion to dismiss, alleging that he moved from Houston County to Putnam County on December 30, 1971, with the express intention of removing his residence and domicile from Houston County to Putnam County, that he has no intention of resuming his residence or domicile in Houston County, and that the proper venue for any divorce action against him would be in Putnam County.

The trial judge held a hearing on the question of jurisdiction, after which he sustained the plea and dismissed the complaint.

The appellant relies on the well-established principle of law concerning domicile, which is stated in Patterson v. Patterson, 208 Ga. 7, 13, 64 S.E.2d 441, in the following language: 'The question of domicile is a mixed question of law and fact, and is ordinarily one for a jury. . ., and should not be determined by the court as a matter of law except in plain and palpable cases.'

This principle does not require a ruling that the trial judge in the present case could not determine the question of jurisdiction without submitting it to a jury.

The Civil Practice Act provides that certain defenses may be made by motion in writing; that lack of jurisdiction over the person is one of these, and that it shall be heard and determined before trial on application of any party, unless the court orders the hearing and determination deferred until trial. Code Ann. § 81A-112(b, d) (Ga. L.1966, pp. 609, 622; Ga.L.1967, pp. 226, 231). The trial judge was therefore authorized to have a hearing on the question of jurisdiction of the husband prior to trial.

Code § 30-101, as last amended by Ga. L.1960, pp. 1023, 1024, provides: 'Total divorces in proper cases may be granted by the superior court. Unless an issuable defense is...