Morgan v. Morgan

• Decision Date: 12 October 1989
• Docket Number: No. A89A1428,A89A1428
• Citation: Morgan v. Morgan, 388 S.E.2d 2, 193 Ga.App. 302 (Ga. App. 1989)
• Parties: MORGAN v. MORGAN.
• Court: Georgia Court of Appeals

Page 2

388 S.E.2d 2

193 Ga.App. 302

MORGAN v.MORGAN.

No. A89A1428.

Court of Appeals of Georgia.

Oct. 12, 1989.

Rehearing Denied Oct. 26, 1989.

Certiorari Denied Nov. 22, 1989.

Tyrus R. Atkinson, Jr., for appellant.

Jones, Brown & Brennan, Taylor W. Jones, Atlanta, for appellee.

SOGNIER, Judge.

Linda Barrows Morgan filed suit in the Superior Court of Fulton County to have her marriage to C. Dennis Morgan annulled and to recover damages on a claim of fraudulent inducement to marry.Following a nonjury trial at which Mr. Morgan did not appear, the trial judge entered findings of fact and conclusions of law, annulled the marriage between the parties, and entered judgment in favor of Ms. Morgan in the amount of $30,000 in compensatory damages, $90,000 in punitive damages, and $5,000 in attorney fees.Mr. Morgan now appeals from the denial of his motion to set aside the damages portion of the judgment.

1.We note that appellant's notice of appeal was filed on December 22, 1983, when the denial of a motion to set aside a judgment was appealable as a matter of right.Dudley v. Monsour, 155 Ga.App. 269, 270(1), 270 S.E.2d 686(1980);compareOCGA § 5-6-35(a)(8)(Ga.Laws 1984, p. 599, § 2).The clerk of the superior court has certified to us that the delay in transmittal of the instant record to this court was attributable to "stress of work" and "inadvertence" in the clerk's office.SeeOCGA § 5-6-43(a).

2.Appellant first contends the trial court did not have subject matter jurisdiction of this action because it was in essence a complaint for divorce or annulment, which could not be maintained because neither party had resided in Georgia for six months prior to the filing of the complaint as required by OCGA § 19-5-2.However, as this appeal originally was filed in the Supreme Court of Georgia and was transferred to this court"on the ground that it is an appeal from a judgment awarded in tort,"we have no jurisdiction to consider this enumeration.

3.Appellant also challenges the trial court's jurisdiction over him, contending that he was not properly served with process and that he was not a Georgia resident at the time the action was filed and served.

The record reveals that appellee's complaint was filed on April 2, 1981, and the return of service executed by the deputy sheriff indicates that appellant was personally served at his Alpharetta residence on April 6, 1981.In his affidavit filed in support of his motion to set aside the verdict, appellant averred that he moved to Florida "just prior to April 1, 1981," where he remained until moving back to Georgia in May 1982, that when he visited his father in Atlanta on April 8, 1981, his father gave him the complaint filed by appellee, and that the complaint was not served upon him or any member of his family at the Alpharetta address.Nonetheless, as appellant filed an answer and counterclaim on May 1st in which he stated that he"[was] not a resident of Fulton County, Georgia and [was] not subject to the jurisdiction of [the trial] court" but did not raise the issue of insufficiency of service of process by either his answer or a motion, the defense of insufficient service was waived.Weddington v. Kumar, 149 Ga.App. 857, 256 S.E.2d 141(1979).

As to appellant's denial of personal jurisdiction, the Georgia Long-Arm Statute, the applicable terms of which have not been changed since this action was filed, authorizes personal jurisdiction over a nonresident if he"[c]ommits a tortious act or omission within this state."OCGA § 9-10-91(2)(former Ga.Code Ann. § 24-113.1(2))."The term 'nonresident' shall ... include an individual ... who, at the time a claim or cause of action arises under Code Section 9-10-91, was residing ... in this state and subsequently becomes a resident, domiciled ... outside of this state as of the date of perfection of service of process...."OCGA § 9-10-90(former Ga.Code Ann. § 24-117).The trial court found, and appellant admits, that at the time appellant induced appellee to marry him (despite the fact that he was not divorced from his current wife), appellant was a Georgia resident.Thus, as the tortious act was committed within the state and appellant apparently became domiciled in Florida for a brief period just before service was perfected, there existed sufficient connection with this state to satisfy the "minimum contacts" requirement imposed by the due process clause of the United States Constitution, compareYarbrough v. Estate of Yarbrough, 173 Ga.App. 386-387, 326 S.E.2d 517(1985), and the trial court properly exercised personal jurisdiction over appellant.SeeEdelschick v. Blanchard, 177 Ga.App. 410, 411(2), 339 S.E.2d 628(1985).

4.Appellant contends in three enumerations that Georgia does not recognize the tort of fraudulent inducement to enter into a void marriage, and that appellee's claim was in reality an impermissible complaint for compensatory and punitive damages in a divorce or annulment action.We do not agree, as Georgia courts have recognized that one who is induced to enter into a marital relationship under false pretenses has a common law tort action for fraud and may recover damages.Perthus v. Paul, 81 Ga.App. 133, 136, 58 S.E.2d 190(1950);seeSchmitt v. Schneider, 109 Ga. 628, 631, 35 S.E. 145(1900).Appellant's further argument that such an action is barred by the doctrine of interspousal immunity, seeOCGA § 19-3-8, is similarly without merit because appellant concedes that he was already married to someone else at the time he proposed to and married appellee, and thus there was no valid marriage to protect by application of the doctrine of interspousal tort immunity.SeeOCGA §§ 19-3-1; 19-3-2(3); 19-3-5;compareRobeson v. Intl. Indem. Co., 248 Ga. 306, 307(1), 282 S.E.2d 896(1981).

5.Appellant also enumerates as error the trial court's failure to grant his motion to set aside on the ground that appellee's claim of fraud was...