Mbatha v. Cutting

• Decision Date: 21 September 2020
• Docket Number: A20A1303
• Citation: 356 Ga.App. 743,848 S.E.2d 920
• Parties: MBATHA v. CUTTING.
• Court: Georgia Court of Appeals

356 Ga.App. 743

848 S.E.2d 920

MBATHA

v.CUTTING.

A20A1303

Court of Appeals of Georgia.

September 21, 2020

Gary Patrick Graham, Erik Brooks Chambers, Carla Faye Stern, Atlanta, for Appellant

Joann Brown Sharp, Lisa Marie Chambers, Atlanta, for Appellee

Brown, Judge.

In this interlocutory appeal, Senzo Mbatha appeals from the trial court's order concluding it would apply South African law to the division of property in Mbatha and Dionne Cutting's Georgia divorce. Mbatha contends that Georgia law should apply to the division of property and that the trial court erred in concluding that it lacked jurisdiction over his petition for divorce. For the reasons that follow, we vacate the trial court's order and remand the case with direction.

The record shows that Cutting was an attorney in New York before taking time off and traveling to South Africa. While there in early 2017, she met Mbatha, an attorney living and working in Johannesburg, South Africa. Cutting returned home to New York, but came back to South Africa in September 2017. During this period, the parties began a romantic relationship, and Cutting learned she was pregnant in January 2018. The couple married in a civil ceremony in New York on January 25, 2018, after learning that it would be easier for Cutting to obtain a South African visa if they married outside of South Africa and applied for a visa with an embassy. Mbatha returned to South Africa while Cutting stayed behind in New York to pack all of her belongings and apply for a visa.

In February 2018, Cutting secured the visa and moved to South Africa. The couple then embarked on a one-month honeymoon in Europe, and according to Cutting, the relationship began to sour. Two months after returning to South Africa from the honeymoon, the parties decided they could no longer live together, and Mbatha eventually rented a separate apartment in South Africa for Cutting. Instead of moving into the apartment, Cutting flew to Georgia in August 2018,¹ to be with her parents for the remainder of her pregnancy. Cutting gave birth to a daughter in September 2018, and both Cutting and the child have continued to reside in Georgia with her parents.

On January 24, 2019, Mbatha filed a complaint for separate maintenance in the Superior Court of Forsyth County. He converted it to a complaint for divorce on February 13, 2019. In his complaint, Mbatha sought joint legal custody of the parties’ daughter with visitation and requested that each party be awarded all property held in his or her individual name. Cutting answered and filed a counterclaim for divorce, seeking primary physical custody of their daughter, as well as child support and alimony. Cutting amended her counterclaim in September 2019, contending that the appropriate choice of law for determining the division of marital property is South Africa.

During the September 26, 2019 hearing addressing the conflict of law issue, Cutting maintained that South African law should apply to the division of marital property because the couple's only marital domicile was South Africa and the parties only found themselves in a Georgia court by "mere happenstance" because Cutting's parents lived in Georgia. Cutting further argued that Georgia has no real interest in the marriage and the division of their assets. Mbatha maintained that the parties had agreed that New York law would apply, not South African law, because the parties married in New York; that Cutting was "cherry picking" which law was more advantageous to her;² and that Cutting's approach was not workable. Instead, Mbatha argued that Georgia law should apply as the law of the forum state and because Georgia has a greater interest in the matter than does South Africa.

In its detailed, eleven-page order, the trial court acknowledged that it was faced with a conflict of law regarding the distribution of the parties’ property after comparing Georgia's system of equitable division³ with South Africa's "in community of property" regime.⁴ The court concluded that because the parties executed their marital contract in New York, the court would look to New York law "to determine how New York would undertake a conflict of laws approach concerning a New York contract." The trial court then applied New York's "center of gravity" approach to conclude that the law of South Africa should apply to the parties’ property distribution and alimony claims. The trial court found that the parties had "negotiated the terms of the marriage in South Africa, entered into a New York marital contract, ... were domiciled in South Africa ..., and the marital contract was performed in South Africa." The court further found that the application of South Africa's "in community of property" regime would not offend Georgia public policy. In addition to addressing the conflict of laws issue, the trial court concluded that it did not have jurisdiction to consider Mbatha's divorce claim because he had not resided in Georgia for a period of six months prior to filing his petition as required by OCGA § 19-5-2, and that "jurisdiction of [the parties’] divorce action rests entirely upon [Cutting's] counterclaim for divorce."

After this Court granted Mbatha's application for interlocutory review, he filed a timely notice of appeal. Mbatha contends that the trial court erred in concluding it did not have jurisdiction over his claim for divorce. He further contends that the trial court erred in concluding that South African law, rather than Georgia law, should govern the division of the parties’ property.

1. Jurisdiction . In his first enumeration of error, Mbatha challenges the trial court's finding that it lacks jurisdiction over his claim for divorce. Cutting admits that the trial court erred in finding it lacked subject matter jurisdiction over the divorce complaint, but contends that it was "harmless error given its finding of subject matter jurisdiction over [Cutting's] divorce counterclaim." (Emphasis omitted.) "Jurisdiction is a question of law to which appellate courts apply a de novo standard of review." (Citations and punctuation omitted.) Prabnarong v. Oudomhack , 334 Ga. App. 723, 725, 780 S.E.2d 393 (2015).

In general, a Georgia court has jurisdiction to terminate a marriage when one spouse is domiciled in Georgia. See Williams v. North Carolina , 325 U. S. 226, 229-230, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) ("[t]he domicil of one spouse within a State gives power to that State ... to dissolve a marriage wheresoever contracted"). Compare Heath v. Heath , 257 Ga. 777, 364 S.E.2d 272 (1988) (Georgia trial court properly dismissed divorce petition of wife, a Georgia resident, where husband, a North Carolina resident, already had filed divorce petition in North Carolina; North Carolina divorce decree entitled to full faith and credit). In this vein, OCGA § 19-5-2 relevantly provides:

No 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, ... provided, further, that a nonresident of this state may file a petition for divorce , in the county of residence of the respondent, against any person who has been a resident of this state and of the county in which the action is brought for a period of six months prior to the filing of the petition.

(Emphasis supplied.) Thus, we agree with Mbatha that the trial court erred in determining it lacked jurisdiction over his claim for divorce, but we agree with Cutting that the trial court nonetheless properly concluded that it had jurisdiction to dissolve the parties’ marriage.⁵

To the extent Mbatha contends that this erroneous holding affected the trial court's choice-of-law analysis, that contention is rendered moot by our holding in Division 2, infra. We now turn to the question of what law the trial court should apply in its division of the parties’ assets.

2. Conflict of Law. Mbatha next challenges the trial court's conclusion that South Africa's law should apply to the classification and division of the parties’ assets. A trial court's choice of law is a legal question which we review de novo. Forbes v. Auld , 351 Ga. App. 555, 557 (2), 830 S.E.2d 770 (2019) (physical precedent only).

Georgia courts have not determined the choice of law rule applicable in deciding which state's, or country's, law applies to issues of property characterization and distribution in divorce actions. Mbatha asserts that Georgia law, as the law of the forum, should apply to the division of property. Conversely, Cutting argues that the law of the marital domicile at the time the property is acquired should dictate; because South Africa was the parties’ only marital domicile and the parties "acquired the ‘joint estate’ rights at the time of marriage," South African law should apply to determine the division of property. A review of the approaches taken in other jurisdictions in the context of divorce and property division, as well as a review of Georgia's approach to conflicts of law in other contexts, will aid our analysis of this issue.

(a) Other Jurisdictions’ Approaches to Conflicts of Law in Divorce and Property Division Cases. In considering choice of law issues in property division cases, jurisdictions apply one of three general rules. Brett R. Turner, 1 Equit. Distrib. of Property, 4th § 3:13 (Choice of Law) (2019). The traditional rule provides that ownership interests in real property are determined under the law of the jurisdiction in which it is located while interests in personal property are determined under the law of the owner's domicile at the time the property was acquired. See In re Estate of Crichton , 20 N.Y.2d 124, 133, 281 N.Y.S.2d 811, 228 N.E.2d 799 (1967) ("The traditional choice of law rule in this area is one which looks to the law of the marital domicile to determine the rights of the husband and wife in property acquired during coverture."); Turner, 1 Equit. Distrib. of Property, 4th § 3:13 (Choice of...