Viskup v. Viskup, No. S12A0276.

CourtSupreme Court of Georgia
Writing for the CourtBENHAM
Citation12 Cal. Daily Op. Serv. 1517,727 S.E.2d 97,291 Ga. 103
PartiesVISKUP v. VISKUP.
Docket NumberNo. S12A0276.
Decision Date29 May 2012

291 Ga. 103
727 S.E.2d 97
12 Cal.
Daily Op. Serv. 1517

VISKUP
v.
VISKUP.

No. S12A0276.

Supreme Court of Georgia.

April 24, 2012.
Reconsideration Denied May 29, 2012.


[727 S.E.2d 99]


Charles Gerald Harbin, Jr., Marietta, for appellant.

Roger M. Johnson and Jennifer Susan Gill, Bray & Johnson, Canton, for appellee.


BENHAM, Justice.

[291 Ga. 103]Appellant Peter Viskup and appellee Andrea Viskup were married in 1998 and are the parents of a son born in 2000. The parties were divorced in 2006 by judgment and decree entered in Cobb County, with legal and physical custody of the child awarded to appellant Father. In October 2008, appellee Mother filed a petition for modification of custody and child support in the Superior Court of Cherokee County. After denying Father's motion to dismiss for lack of venue, the trial court granted temporary physical custody of the child to Mother as of December 2008 and permanent primary physical custody and child support in February 2011. Attorney fees were awarded Mother in April 2011, and Father's motion for new trial was denied in May 2011. Father then filed this direct appeal from a judgment in a child custody case. OCGA § 5–6–34(a)(11). See Edge v. Edge, 290 Ga. 551(1), 722 S.E.2d 749 (2012) (construing subsection (a)(11) as permitting a direct appeal of an order in a child custody case regarding which parent has custody, regardless of finality).

[291 Ga. 104]1. Father contends entry of the judgment was erroneous because the modification petition was not filed in and decided by a superior court of the statutorily-prescribed county. OCGA § 19–9–23(a) requires a child-custody modification action to be filed in the legal custodian's county of residence. Mother filed her petition in Cherokee County on October 17, 2008, and service was perfected on Father, the custodial parent, in Cherokee County on October 24. The trial court ruled that Father was served timely and Father does not take issue with that ruling on appeal; rather, Father contends he was not a resident of Cherokee County when Mother filed her petition.

“[F]or purposes of venue and other jurisdictional questions, a person's residence at the time of filing of suit is the determining factor ... [if] followed by service within a reasonable time....” Franek v. Ray, 239 Ga. 282, 285, 236 S.E.2d 629 (1977). A change of residence by the defendant after the filing of an action but before trial does not change the proper venue. Cartwright v. Fuji Photo Film U.S.A., 312 Ga.App. 890(3), 720 S.E.2d 200 (2011). When the trial court conducts a hearing and makes findings of fact on a motion to dismiss or transfer for improper venue, the findings of fact are tested by the any evidence rule. Oglesby v. Deal, 311 Ga.App. 622, 716 S.E.2d 749 (2011).

At a hearing before the trial court, Father testified he sold his Cobb County home in late May-early June 2008, rented an apartment in Cherokee County, enrolled the child in a Cherokee County school, entered into a contract on August 29 to purchase a home with a Cobb address that straddled the Cobb–Cherokee county line, scheduled the closing of his purchase to be on October 16, spent the nights of October 14 and 15 at the new house, actually closed on the new house on October 21, registered his vehicle in Cobb County and changed his driver's license address to Cobb County on October 21, and removed the child from the Cherokee County school on November 7. He was served at his Cherokee County apartment on October 24. The Cherokee County court orally ruled that, while Father had the intent to return to Cobb County in September, Father was a resident of Cherokee County until his physical presence changed on October 21, the day he closed the purchase of the Cobb County home and changed to Cobb County his vehicle registration and driver's license address. The trial court's written order summarily denied Father's motion to dismiss the petition or to transfer it to Cobb County. Since there is evidence that supports the trial court's determination that Father did not change his county of residence until October 21 and was a resident of Cherokee County when Mother filed her modification...

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65 practice notes
  • Spirnak v. Meadows, A20A0158
    • United States
    • United States Court of Appeals (Georgia)
    • June 8, 2020
    ...and alimony; it is a petition for the modification of custody. As such, this statutory provision does not apply. Viskup v. Viskup , 291 Ga. 103, 107 (3), 727 S.E.2d 97 (2012) ; Wilson , 353 Ga. App. at 503 (1), 838 S.E.2d 588 ; Moore v. Hullander , 345 Ga. App. 568, 571 (2) (a), 814 S.E.2d ......
  • Belknap v. Belknap, A19A0808
    • United States
    • United States Court of Appeals (Georgia)
    • September 9, 2019
    ...decision, this Court views the evidence presented in the light most favorable to upholding the trial court's order).2 Viskup v. Viskup , 291 Ga. 103, 105 (2), 727 S.E.2d 97 (2012) (punctuation omitted); accord Driver , 327 Ga. App. at 276, 758 S.E.2d 613 ; see OCGA § 19-9-3 (b) (noting that......
  • Belknap v. Belknap, A19A0808
    • United States
    • United States Court of Appeals (Georgia)
    • September 9, 2019
    ...decision, this Court views the evidence presented in the light most favorable to upholding the trial court’s order).2 Viskup v. Viskup , 291 Ga. 103, 105 (2), 727 S.E.2d 97 (2012) (punctuation omitted); accord Driver , 327 Ga. App. at 276, 758 S.E.2d 613 ; see OCGA § 19-9-3 (b) (noting that......
  • Day v. Mason, A20A0964
    • United States
    • United States Court of Appeals (Georgia)
    • November 18, 2020
    ...not require a trial court to consider the parties’ financial circumstances in making the grant of attorney fees[.]" Viskup v. Viskup , 291 Ga. 103, 107 (3), 727 S.E.2d 97 (2012). And OCGA § 19-9-3 (g) provides that the trial court may award fees "to be paid by the parties in proportions and......
  • Request a trial to view additional results
65 cases
  • Spirnak v. Meadows, A20A0158
    • United States
    • United States Court of Appeals (Georgia)
    • June 8, 2020
    ...and alimony; it is a petition for the modification of custody. As such, this statutory provision does not apply. Viskup v. Viskup , 291 Ga. 103, 107 (3), 727 S.E.2d 97 (2012) ; Wilson , 353 Ga. App. at 503 (1), 838 S.E.2d 588 ; Moore v. Hullander , 345 Ga. App. 568, 571 (2) (a), 814 S.E.2d ......
  • Belknap v. Belknap, A19A0808
    • United States
    • United States Court of Appeals (Georgia)
    • September 9, 2019
    ...decision, this Court views the evidence presented in the light most favorable to upholding the trial court's order).2 Viskup v. Viskup , 291 Ga. 103, 105 (2), 727 S.E.2d 97 (2012) (punctuation omitted); accord Driver , 327 Ga. App. at 276, 758 S.E.2d 613 ; see OCGA § 19-9-3 (b) (noting that......
  • Belknap v. Belknap, A19A0808
    • United States
    • United States Court of Appeals (Georgia)
    • September 9, 2019
    ...decision, this Court views the evidence presented in the light most favorable to upholding the trial court’s order).2 Viskup v. Viskup , 291 Ga. 103, 105 (2), 727 S.E.2d 97 (2012) (punctuation omitted); accord Driver , 327 Ga. App. at 276, 758 S.E.2d 613 ; see OCGA § 19-9-3 (b) (noting that......
  • Day v. Mason, A20A0964
    • United States
    • United States Court of Appeals (Georgia)
    • November 18, 2020
    ...not require a trial court to consider the parties’ financial circumstances in making the grant of attorney fees[.]" Viskup v. Viskup , 291 Ga. 103, 107 (3), 727 S.E.2d 97 (2012). And OCGA § 19-9-3 (g) provides that the trial court may award fees "to be paid by the parties in proportions and......
  • Request a trial to view additional results

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