Oglesby v. Deal

• Decision Date: 08 September 2011
• Docket Number: No. A11A1239.,A11A1239.
• Citation: 11 FCDR 2889,311 Ga.App. 622,716 S.E.2d 749
• Parties: OGLESBY et al.v.DEAL et al.
• Court: Georgia Court of Appeals

311 Ga.App. 622

716 S.E.2d 749

11 FCDR 2889

OGLESBY et al.

v.DEAL et al.

No. A11A1239.

Court of Appeals of Georgia.

Sept. 8, 2011.

Adam P. Cerbone, Savannah, for appellants.Dennis George Dozier, for appellees.MILLER, Presiding Judge.

Larry and Susan Deal, appellees-paternal grandparents of the child G.D., filed a petition for grandparents' visitation rights against Tina Marie Oglesby, appellant-maternal grandmother of G.D., and Summer Nicole Thornburg, appellant-mother of G.D. Oglesby and Thornburg sought to have the petition dismissed for lack of personal jurisdiction and insufficient service of process, or in the alternative, to have the case transferred on the ground of improper venue. The trial court denied the motion, but granted a certificate of immediate review. We granted appellants' application for interlocutory review under Spivey v. Hembree, 268 Ga.App. 485, 486, n. 1, 602 S.E.2d 246 (2004), and this appeal ensued. In two enumerations of error, Oglesby and Thornburg assert that the trial court erred in finding that Thornburg was subject to personal jurisdiction and properly served with process, and that venue was proper with respect to Oglesby. This Court finds that service was not effective as to Thornburg and that venue was improper as to Oglesby, and accordingly, we reverse.

A preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue whether made in a pleading or by motion may be heard and determined before trial on the application of any party. At such hearing factual issues shall be determined by the trial court. Factual determinations of the trier of fact will be reversed only where the evidence demands a contrary finding, and when the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence rule.

(Citations and punctuation omitted.) McLendon v. Albany Warehouse Co., 203 Ga.App. 865, 866(1), 418 S.E.2d 130 (1992). Similarly, we will not disturb the trial court's factual findings regarding the sufficiency of service if there is evidence to support them. Hardin Constr. Group v. Fuller Enterprises, 233 Ga.App. 717, 721–722(2), 505 S.E.2d 755 (1998).

The evidence of record shows that G.D. was born on February 10, 2010, and has resided with Oglesby since that time. Until approximately May 2010, Oglesby resided at a modular home located at 129 Godley Road, Bloomingdale, Georgia.¹ In May 2010, she and her husband moved to a new home that was located on the same road as the modular home, at 109 Godley Road, Bloomingdale, Georgia. Although on the same road, the homes were in different counties. The modular home was located in Effingham County; the new home was located in Chatham County (although only about 200 yards from the Effingham County line). On September 22, 2010, Oglesby completed a petition for temporary letters of guardianship of G.D., which she filed in the Probate Court of Effingham County; she was appointed as G.D.'s temporary guardian on the same day.

On October 18, 2010, the Deals filed a petition for grandparents' visitation rights in the Superior Court of Effingham County.² The evidence shows that Oglesby was personally served with this action at 129 Godley Road in Effingham County. Although the evidence reflects that Thornburg moved to Arizona on October 7, 2010, the sheriff purported to serve Thornburg by leaving the summons with Oglesby at 129 Godley Road.³

In their answer to the petition, Oglesby and Thornburg raised the defenses of insufficiency of service of process, lack of personal jurisdiction, and improper venue; they sought to have the case either dismissed or transferred to the Superior Court of Chatham County. Following a hearing on venue, the trial court found that Oglesby and Thornburg were both residents of Effingham County at the time the Deals filed their petition, and that venue was therefore proper in Effingham County. In its subsequent order denying the motion to transfer the case to the Superior Court of Chatham County, the trial court also expressly found that it had personal jurisdiction over Oglesby and Thornburg, and that service of process was sufficient.

1. Oglesby and Thornburg argue that Thornburg was not subject to the jurisdiction of the trial court and was not properly served. Although we find that the trial court was authorized to obtain personal jurisdiction over Thornburg pursuant to Georgia's long arm statute,⁴ we conclude that she was not properly served with process.

The evidence below shows that Thornburg resided with her mother (Oglesby), at 129 Godley Road, Effingham County, from approximately October 2009 through October 7, 2010. On October 7, 2010, Thornburg moved to Arizona to live with her grandmother and attend college. Oglesby testified that she had purchased Thornburg's one-way airline ticket to Arizona. According to Oglesby, Thornburg's intent was to live in Arizona permanently and that she had neither returned, nor desired to return, to Georgia.

Under the Georgia long arm statute, a “nonresident” is an individual

not residing [or] domiciled ... in this state at the time a claim or cause of action under Code Section 9–10–91 arises ... [or] an individual ... who, at the time a claim or cause of action arises under Code Section 9–10–91, was residing [or] domiciled ... in this state and subsequently becomes a resident [or] domiciled ... outside of this state as of the date of perfection of service of process as provided by Code Section 9–10–94.

OCGA § 9–10–90. Because the long arm statute defines “nonresident” in the disjunctive, “either a change in residence or change in domicile would suffice to make a person a nonresident.” Cooper v. Edwards, 235 Ga.App. 48, 50, 508 S.E.2d 708 (1998). And while “a concurrence of actual residence and intent to remain is necessary to acquire a domicile,” the same is not true to establish residence. Id. Indeed, “a person may have several residences which are not necessarily permanent or in the same locale as the domicile.” Id. Thus, regardless of whether Thornburg's domicile remains in Georgia, she has been an Arizona resident since early October 2010. See id. at 49–50, 508 S.E.2d 708 (holding that a defendant, who was incarcerated in South Carolina, was a resident of that state, regardless of whether his domicile remained in Georgia, and was therefore a “nonresident” within the meaning of the long arm statute). Accordingly, Thornburg is a nonresident subject to our long arm statute.

The provisions of the long arm statute further control the scope of personal jurisdiction that Georgia courts may exercise over nonresidents by requiring an out-of-state defendant to do certain acts, as delineated by the statute, within the state of Georgia before she can be subjected to personal jurisdiction in Georgia. See Innovative Clinical, etc., Svcs. v. First Nat. Bank, etc., 279 Ga. 672, 673, 620 S.E.2d 352 (2005). These acts are enumerated in OCGA § 9–10–91, which reads in relevant part:

Has been subject to the exercise of jurisdiction of a court of this state which has resulted in an order of alimony, child custody, child support, equitable apportionment of debt, or equitable division of property if the action involves modification of such order and the moving party resides in this state or if the action involves enforcement of such order notwithstanding the domicile of the moving party.

(Emphasis supplied.) OCGA § 9–10–91(6). Here, a Georgia probate court issued an order granting Oglesby temporary custody of Thornburg's minor son, G.D. To the extent the Deals sought to have the superior court issue another order concerning G.D., specifically for grandparents' visitation rights, the Deals' action against Thornburg involved modification of the probate court's temporary custody order. Accordingly, the underlying action against Thornburg fell within the purview of subsection (6) of the long arm statute.

“Of course, before permitting the exercise of long-arm jurisdiction, due process requires that a defendant, if she is not present in the forum state, have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” (Citation, punctuation and footnote omitted.) Cooke v. Cooke, 277 Ga. 731, 732–733, 594 S.E.2d 370 (2004). In this case, the trial court found that both Thornburg and G.D. had significant contacts with Georgia. We agree. Thornburg was born in Georgia and lived her entire life in Georgia until she moved to Arizona for college in October 2010. Thornburg gave birth to G.D. in Georgia and resided with him at her mother's home in Georgia. Significantly, prior to moving to Arizona, Thornburg subjected herself to the jurisdiction of the Georgia probate court when she and her mother filed a petition for letters of temporary guardianship of G.D. Moreover, although G.D. has been out to visit Thornburg in Arizona, he still continues to reside in Georgia with Oglesby. We conclude that there “is a sufficient basis upon which to conclude that the exercise of long-arm jurisdiction over [Thornburg] comports with due process precepts of ‘fair play’ and ‘substantial justice.’ ” (Footnote omitted.) Id. at 733

Therefore, the Deals were required to serve Thornburg pursuant to the long arm statute, under which a plaintiff must serve “process on a person residing outside the state in the same way that someone is served inside the state, so long as the service outside the state is made by a person authorized to do so by the laws of that state.” Aucoin v. Connell, 209 Fed.Appx. 891, 894, 2006 WL 3497701 (11th Cir.2006) (citing OCGA § 9–10–94). This means that the Deals had to serve Thornburg “personally, or by leaving copies thereof at [Thornburg's] dwelling house or usual place of abode.” OCGA § 9–11–4(e)(7).

As reflected by the sheriff's November 3, 2010 return of service,...