KURIATNYK v. KURIATNYK

• Decision Date: 01 March 2010
• Docket Number: No. S09F2030.,S09F2030.
• Citation: 690 S.E.2d 397
• Parties: KURIATNYK v. KURIATNYK.
• Court: Georgia Supreme Court

690 S.E.2d 397

KURIATNYK v. KURIATNYK.

No. S09F2030.

Supreme Court of Georgia.

March 1, 2010.

Michael J. Meadors, Gainesville, FL, for appellant.

Alex R. Roberson, McDonough, for appellee.

CARLEY, Presiding Justice.

Dayna Kuriatnyk (Wife) and Richard Michael Kuriatnyk (Husband) were married in 2007 and lived in Florida. After their only child was born in April 2008, Wife and the child moved to Georgia. Wife brought this divorce action in Georgia on December 11, 2008. Husband was served with the verified complaint in Florida, but did not file any motion or answer.

The trial court entered a final divorce decree, "upon evidence submitted as provided by law," awarding to Wife sole legal and physical custody of the parties' child, as well as child support in the amount of $750 per month. Husband filed a motion to set aside or, in the alternative, for a new trial. The trial court entered an order noting the absence of any supporting affidavits, depositions, or verified pleadings, and stating that "the Motion to Set Aside is DENIED and the Motion for New Trial is DENIED." Husband applied for discretionary review, which we granted pursuant to our Pilot Project in divorce cases.

All of Husband's enumerations on appeal were initially raised in the post-judgment motion. The extent to which the post-judgment motion was for a new trial or to set aside depends upon whether the issues raised related to a motion to set aside under OCGA § 9-11-60(d), as "substance, rather than nomenclature, governs pleadings, cits.." Martin v. Williams, 263 Ga. 707, 708(1), 438 S.E.2d 353 (1994). See also Stamps v. Nelson, 290 Ga.App. 277, 279(2), fn. 3, 659 S.E.2d 697 (2008).

1. In the first enumeration, Husband contends that the trial court lacked jurisdiction over the res of the marriage, as Wife had not been a bona fide resident of Georgia for six consecutive months before filing her complaint. In another enumeration, he urges that the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), OCGA § 19-9-40 et seq., because the child's home state was Florida, as he had not lived in Georgia with Mother for at least six consecutive months prior to commencement of this action.

Both of these enumerations raise the issue of jurisdiction over the subject matter. See Devito v. Devito, 280 Ga. 367, 369(3), 628 S.E.2d 108 (2006); Wilson v. Gouse, 263 Ga. 887, 441 S.E.2d 57 (1994); Doke v. Doke, 248 Ga. 514, 515(1), 284 S.E.2d 419 (1981); Chalfant v. Rains, 244 Ga. 747, 748, 262 S.E.2d 63 (1979); Goldstein v. Goldstein, 229 Ga.App. 862, 863(1)(a), 494 S.E.2d 745 (1997); McConaughey, Ga. Divorce, Alimony and Child Custody § 6:4 (2008-2009 ed.). Such enumerations therefore relate to a motion to set aside under OCGA § 9-11-60(d)(1). See Martin v. Williams, supra. As the post-judgment motion itself indicates, Husband "relied on the lack of subject matter jurisdiction, one of the grounds for a motion to set aside the judgment" and, to that extent, "the motion denied was to set aside the judgment under OCGA § 9-11-60(d)...." Fabe v. Floyd, 199 Ga.App. 322, 332(1), 405 S.E.2d 265 (1991) (on motion for rehearing).

As the party seeking a divorce, Wife "had to show `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.' Cits." Midkiff v. Midkiff, 275 Ga. 136, 137(1), 562 S.E.2d 177 (2002). However, "the burden is on Husband, as the party attacking the judgment to demonstrate that it was void." Tanis v. Tanis, 240 Ga. 718, 720(2), 242 S.E.2d 71 (1978).

Wife's verified complaint showed that she "has been a resident of the State of Georgia for six months prior to the date of filing this Complaint" and that "the State of Georgia is the home state of the child...." See OCGA § 19-5-5(b)(2); Tanis v. Tanis, supra at 719(2), 242 S.E.2d 71; Goulart v. Goulart, 237 Ga. 174, 175(1), 227 S.E.2d 52 (1976). Compare Rice v. Rice, 223 Ga. 363, 364, 155 S.E.2d 393 (1967). In his notice of appeal, Husband stated that the "transcript of evidence and proceedings will not be filed for inclusion in the record on appeal." Thus, it is not possible to determine what further evidence of Wife's domicile or of the child's home state was presented to the trial court, and we must assume that the evidence supported its exercise of jurisdiction. See Tanis v. Tanis, supra at 718-719(1), (2), 242 S.E.2d 71; In re Ray, 248 Ga.App. 45, 46(1), 545 S.E.2d 617 (2001). Moreover, as the trial court recognized, Husband failed to support his post-judgment motion with any affidavits, depositions, or verified pleadings, nor did he request a hearing. See Herringdine v. Nalley Equip. Leasing, 238 Ga.App. 210, 212(2), 517 S.E.2d 571 (1999).

Accordingly, Husband "has not demonstrated that the judgment was void on the present record. Cits." Tanis v. Tanis, supra at 720(2), 242 S.E.2d 71. That portion of the trial court's order which denied the motion to set aside must therefore be affirmed.

2. In two other enumerations, Husband contends that the trial court erred when it failed to attach the child support worksheet to the final judgment, and when it incorrectly stated the presumptive amount of child support and awarded that erroneous amount without identifying and explaining any deviation.

"`"A motion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon." (Cit.)' Cit." Underwood v. Underwood, 282 Ga. 643, 644(1), 651 S.E.2d 736 (2007). Under OCGA § 9-11-52(c), "`a motion for new trial may be used in addition to the filing of motions to amend in attacking fact findings, by the court in non-jury trials, contained in the entered judgment.' Cit." Eldridge v. Ireland, 259 Ga.App. 44, 47(2), 576 S.E.2d 44 (2002). "`Examples of defects in general which have been held amendable and not subject to motion to set aside include matters such as the court's failure to state findings of fact and conclusions of law. ...' Cit." Powell v. State, 166 Ga.App. 780, 781(1), 305 S.E.2d 646 (1983). See also Kennedy v. Brown, 239 Ga. 286, 289(3), 236 S.E.2d 632 (1977). Compare Scott v. Scott, 282 Ga. 36, 37(3), 644 S.E.2d 842 (2007) (where grant of motion to set aside reversed because the order did not contain the alleged defect, and opinion did not address whether any such defect would have been amendable). Therefore, a motion for new trial, but not a motion to set aside, is a proper means by which the movant can complain of the trial court's failure to comply with the child support guidelines in OCGA § 19-6-15, including the failure to make findings required thereby. Eldridge v. Ireland, supra at 46-47(1), (2), 576 S.E.2d 44.

The trial court denied the motion for new trial on the day after it was filed. Husband's last enumeration is that the trial court erred in ruling on the motion for new trial without an oral hearing. Uniform Superior Court Rule 6.3 provides that, "in civil actions,"

"(u)nless otherwise ordered by the court," a motion for new trial "shall be decided" after an "oral hearing." Here, the trial court did not issue an order excepting the motion filed by Husband from this procedural requirement. Instead, it summarily denied the motion without holding the mandatory hearing. The appellate courts of Georgia have "consistently refused to find that the failure to hold oral argument is harmless error. To hold otherwise `would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.' (Cits.)" Cit.

Green v. McCart, 273 Ga. 862, 863(1), 548 S.E.2d 303 (2001). See also Garner Plumbing v. Slate Constr., 300 Ga.App....