MARCH 9, 1943.
Divorce. Before Judge A. L. Etheridge. Fulton superior court. November 16, 1942.
Powell, Goldstein, Frazer Murphy, James K. Rankin, and Elsie H. Griner, for plaintiff in error. Lindley W. Camp, contra.
1. Under the constitution (Code, § 2-4301), a suit for divorce against a resident of this State must be brought in the county where the defendant resides. In order to give the court jurisdiction, it is necessary that this fact be alleged and established by evidence. It can not be waived by agreement.
2. Where a motion to dismiss a divorce action and a cross-action, on the ground that the defendant did not reside in the county where the suit was brought, was supported by undisputed testimony that before the time the suit was filed the defendant moved her personal effects and belongings from her residence in the county where the suit was filed to a residence in another county, intending to make the other county her domicile, and that she actually left the first county, and, after making a trip to California covering a period of approximately two months, returned to her new residence, and had resided there ever since, the evidence demanded a judgment sustaining the motion and dismissing the entire proceedings.
No. 14442. MARCH 9, 1943.
On June 16, 1942, J. Frank Stewart filed a petition for divorce against his wife, Mrs. Virginia Morris Stewart in the superior court of Fulton County, Georgia. It was alleged that the defendant was a resident of Fulton County and subject to the jurisdiction of the court. An acknowledgment of service, dated June 20, 1942, signed by the defendant, appears on the petition. On November 16, 1942, the plaintiff filed a petition to dismiss the entire proceedings, including his petition and the defendant's answer and cross-action, alleging that the court was without jurisdiction of the parties and subject-matter, because the defendant was not at the time the action was commenced, or at the time she acknowledged service, and is not now, a resident of Fulton County, Georgia, but that she has been during all that time a resident of DeKalb County, Georgia, and that proper venue of the divorce action, at the time it was filed and ever since that time, was in DeKalb County, and not in Fulton County; and that for this reason the court of Fulton County is without jurisdiction to render any valid judgment in the divorce proceeding, other than a judgment of dismissal. It was further alleged that the defendant, before May, 1942, had been a resident of Fulton County, and that the plaintiff in good faith believed that she was a resident of Fulton County at the time of the commencement of the main suit, but that he had since learned that she was a resident of DeKalb County rather than Fulton County.
The motion to dismiss was tried by the judge without a jury. On that hearing the defendant was sworn and testified as a witness for the plaintiff. Her testimony in substance was, that she lived at Chestatee Inn, No. 580 Ponce de Leon Avenue N.E., in Fulton County, Georgia, for some months before the time she left there in April, 1942; that her brother and sister lived there with her, but that they moved to a place on Fairview Road in DeKalb County, Georgia, just before she left Atlanta on April 24, 1942; that she moved all her personal effects and other things from Fulton County to the Fairview Road house in DeKalb County, and gave up her room at the Chestatee Inn, before leaving on a trip to California; that when she left Atlanta she planned to live with her brother and sister in DeKalb County on her return from California; that before she left Atlanta she spent one night at another sister's home in Fulton County; that when the divorce suit was filed on June 16, 1942, she was on her way back to Georgia from California; that she had not taken up residence in DeKalb County or any other place; that she had no place of abode in Fulton County on June 16, 1942, or thereafter; that when she returned to Georgia on June 18, 1942, she went to live with her brother and sister on Fairview Road; that she has lived with them continuously since that time and now lives there; that Fairview Road is in DeKalb County; that while she was living on Fairview Road she was informed by counsel for the petitioner that he represented her husband in a divorce action, and she was asked whether she wished to acknowledge service or be served by the sheriff; that she acknowledged service on June 20, in the office of counsel for the plaintiff; that previously to April, 1942, she had lived continuously in Fulton County for less than one year, and that for several years before that she had lived in various other places including DeKalb and Fulton Counties. She further testified: "I did not tell my husband that I lived on Fairview Road until some time after the divorce suit was filed." T. O. Creel, a witness for the plaintiff, testified, that he was deputy sheriff of Fulton County, and as such handled the papers in the divorce action; that he went to the former residence of the defendant on Ponce de Leon Avenue, but failed to find the defendant, and was informed that she had moved away; that he returned to his office with the papers and informed counsel for the plaintiff; that he never served the papers on the defendant; and that all of Fairview Road is in DeKalb County. It was stipulated by counsel for both parties that the petitioner was a resident of Colquitt County at the time the divorce suit was filed; and that the petition was filed in Fulton County superior court in good faith. At the conclusion of arguments of counsel the court entered judgment overruling and dismissing the motion or petition to dismiss the proceedings, to which judgment the plaintiff excepted.
1. The county in which a suit for divorce must be filed is fixed by the constitution. Code, § 2-4301. It is there provided that if the defendant is a resident of the State, suit must be brought in the county where the defendant resides; and if the defendant is a non-resident of the State, then suit must be brought in the county in which the plaintiff resides. There are no exceptions to this rule, and a failure to observe it deprives the court of jurisdiction, which renders void any judgment or decree therein. Haygood v. Haygood, 190 Ga. 445 (4) ( 9 S.E.2d 834, 130 A.L.R. 87). It is essential to the validity of the suit that venue be alleged as prescribed by the foregoing constitutional provision, and to authorize a valid judgment this allegation must be supported by evidence. Johnson v. Johnson, 188 Ga. 800, 802 ( 4 S.E.2d 807). The burden is upon the petitioner to prove residence, in order to show the court's jurisdiction; and where the defendant asks for alimony, she likewise has the burden of proving this jurisdictional matter. Jones v. Jones, 181 Ga. 747 ( 184 S.E. 271). Although it was held by this court in McConnell v. McConnell, 135 Ga. 828 ( 70 S.E. 647), that an express recognition of the court's jurisdiction, made in an acknowledgment of service by the defendant, was prima facie evidence of jurisdiction, and the decree entered therein would not be set aside on subsequent motion of the defendant upon the ground of the defendant's non-residence, that ruling was (p. 832) expressly based upon an estoppel of the defendant to contradict his voluntary act in admitting that the allegation of the petition as to the court's jurisdiction was true. The court said: "The question as to whether or not the verdicts and decree for divorce are valid is not involved in this case." The opinion recognized the ruling made in Watts v. Watts, 130 Ga. 683 ( 61 S.E. 593), where it was held that the agreement by the defendant that the divorce case be tried in the county where it was filed, which was not the residence of the defendant, did not give the court jurisdiction; and that in spite of such an agreement the court of its own motion, before final verdict, could dismiss the suit for want of jurisdiction. It was stated that the ruling in the Watts case did not conflict with the ruling there made. Parties can not by waiver or agreement confer jurisdiction upon the court where the essential jurisdictional matters stated in the constitutional provision are absent. See Odum v. Odum, 132 Ga. 437 ( 64 S.E. 470); Fuller v. Curry, 162 Ga. 293 ( 133 S.E. 244); Bilbo v. Bilbo, 167 Ga. 602 ( 146 S.E. 446). It may be safely asserted that there is no way whereby the provisions of the constitution on this subject can be circumvented, and no substitute for the plain requirements therein stated can be found, and that the actual residence as there required is indispensable to the jurisdiction of the court.
2. However, some difficulty is encountered when it is sought to determine exactly what facts and conditions constitute residence as referred to in the constitutional provision. Domicile of an adult person laboring under no disability is where the family of such person permanently resides in the State. If one has no family or the family does not reside in the State, the place where such person shall generally lodge is his domicile. Code, § 79-401. Domicile of a person sui juris may be changed "by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention." Code, § 79-406. The evidence offered in support of the motion to dismiss shows, without dispute, an intention on the part of the defendant to change her residence. We think it also shows "an actual change of residence." She testified as follows: "I moved all of my personal effects and other things from the Chestatee Inn to the Fairview Road house, which is in DeKalb County, Georgia, and gave up my room at the Chestatee Inn." This testimony not only shows that the personal effects and property of the defendant were actually moved to DeKalb County, but it shows that the defendant herself moved it; and to do this she had to go in person to the residence on Fairview Road in DeKalb County. It is our opinion that the evidence demanded a finding that the defendant in April, before the divorce suit was filed in June, changed her domicile from Fulton to DeKalb County, and that she was a resident of the latter county at the time the divorce suit was filed in Fulton County. The evidence on a change of the domicile meets the requirements of law as stated in Worsham v. Ligon, 144 Ga. 707 ( 87 S.E. 1025), and Williams v. Williams, 191 Ga. 437 ( 12 S.E.2d 352). In Redfearn v. Hines, 123 Ga. 391 ( 51 S.E. 407), this court held that the facts demanded a finding that the domicile had been changed. There a resident of Thomas County sold his home and moved temporarily to Brooks County, where he lived with his mother and sister, intending to return to Thomas County when he built his home in Thomas County, but for the time being he had no home in Thomas County. He worked the roads in Thomas County, paid his poll-tax in Thomas County, and always regarded Thomas County as his home. This court held that such evidence demanded a finding that he was domiciled in Brooks County. It was pointed out in the opinion that he owned no home and had no family residing in Thomas County, and that there would have been no way under the law to have perfected service of process upon him in Thomas County. There, as here, the defendant actually removed from the county of his domicile. There the defendant intended to return, while here the defendant had no such intention. There one of the ingredients of domicile, intention, was present; while here neither this nor the other ingredient of actually residing is present as relates to Fulton County. On authority of that decision, the evidence here demanded judgment sustaining the motion to dismiss.
Judgment reversed. All the Justices concur.
with reservation that they do not commit themselves as to correctness of the decision in Redfearn v. Hines, 123 Ga. 391 (supra), by five Justices. Compare White v. Glasgow, 193 Ga. 609 ( 19 S.E.2d 305).