Guerrero v. Guerrero ( 2015 )

296 Ga. 432FINAL COPY
S14F1754. GUERRERO v. GUERRERO.
THOMPSON, Chief Justice.
We granted the discretionary application of Timothy Guerrero (husband)
under our Rule 34 (4) to determine whether the trial court erred in its denial of
a motion for new trial in this divorce and child support action. After reviewing
the record, we find that husband was not properly served with the summons and
complaint, and therefore, we reverse the trial court’s order denying husband’s
motion for new trial.
Husband and wife, Beth Guerrero, were married in July 2003. Together
they had four children, all of whom are minors and reside with their mother in
Butts County, Georgia. In May 2012, wife filed a complaint for divorce alleging
that husband was a resident of the State of California and had moved from the
marital residence in Butts County within the six months preceding the filing of
the divorce action, thus subjecting husband to the jurisdiction and venue of the
Butts County Superior Court. She also averred that husband could be personally
served at 9786 Arrow, Rancho Cucamonga, California. In order to serve the
summons and complaint, wife retained Bosco Legal Services, Inc., a private
legal service company, which attempted on several occasions to personally serve
husband at the Rancho Cucamonga address. After several failed attempts at
personal service, a process server named Jeffery G. Dunn returned an affidavit
of service indicating he served husband by substitute service at 9786 Arrow,
Rancho Cucamonga, California, by leaving the complaint “with or in the
presence of: Maria Schiemm, Occupant” who was a “[p]erson of suitable age
and discretion.”
A final hearing was scheduled for December 3, 2012, but no notice of the
hearing was provided to husband because of his failure to file responsive
pleadings. Husband did not appear at the hearing, and the following day, the
trial court entered a final decree granting a divorce and awarding wife sole
physical and legal custody of the minor children, in addition to child support.
Husband was awarded visitation with the children at such times and dates as
agreed by the parties.
Upon learning that a final judgment had been entered, husband hired
counsel and filed a motion for new trial asserting, among other things, that he
had not been properly served. In support of his motion, husband presented the
affidavit of his California landlord, Janice Graber, in which Graber stated that
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the prior tenant of the Rancho Cucamonga property was a woman named
Marianne Schenk. Graber speculated that the process server had misspelled
Marianne Schenk’s name by spelling it “Maria Schiemm.” Husband submitted
no other evidence to support his claim of improper service, although he argued
in his brief and through counsel that Maria Schiemm did not reside at his
residence and he does not know who she is. The trial court rejected husband’s
claim of improper service and denied the motion for new trial.
1. On appeal, husband contends the trial court was without jurisdiction
to grant a divorce or any other form of relief because he was not properly served
with the summons and complaint.
Wife alleged in her complaint that husband was a resident of California
and sought not only a divorce but also child custody and child support.
Husband does not contend that the Georgia trial court could not exercise
personal jurisdiction over him under the domestic relations provision of the
Long Arm Statute. See OCGA § 9-10-91 (5) (providing that a court of this state
may exercise personal jurisdiction over a nonresident if the nonresident, “[w]ith
respect to proceedings for divorce, separate maintenance, annulment, or other
domestic relations action or with respect to an independent action for support
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of dependents, maintains a matrimonial domicile in this state at the time of the
commencement of this action or if the defendant resided in this state preceding
the commencement of the action”); Cooke v. Cooke, 277 Ga. 731 (1) (594 SE2d
370) (2004); Braden v. Braden, 260 Ga. 269, 270 (392 SE2d 710) (1990).
Accordingly, the question of whether service was proper in this case is
determined under OCGA § 9-10-94 which provides that if “[a] person [is]
subject to the jurisdiction of the courts of the state under Code Section 9-10-91,”
he may be served outside the state in the same manner as if he were a resident
of this state. See Braden, supra, 260 Ga. at 270. Thus, proper service upon
husband could have been effectuated either by serving him personally or by
leaving a copy of the summons and complaint at his “dwelling place or usual
place of abode with some person of suitable age and discretion then residing
therein.” OCGA § 9-11-4 (e) (7).
The trial court made no factual findings regarding service in either its final
judgment or its order denying husband’s motion for new trial. Our own review
of the record, however, reveals the absence of at least one essential element for
proper service. The return of service signed by Dunn reflects on its face that he
left a copy of the summons and complaint at husband’s address with a woman
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named Maria Schiemm whom he identified as an occupant and a person “of
suitable age and discretion.” Missing from Dunn’s affidavit is any averment
that Schiemm was a resident of the Rancho Cucamonga address, and we find no
other evidence in the record to support such a conclusion. In the absence of any
evidence that service was made upon a resident of husband’s dwelling or usual
place of abode, we must conclude that service was improper and husband’s
motion for new trial should have been granted. See Forsythe v. Gay, 226 Ga.
App. 602 (1) (487 SE2d 128) (1997) (service at defendant’s residence on
daughter who lived next door insufficient); Acord v. Maynard, 198 Ga. App.
296, 297 (401 SE2d 315) (1991) (service at defendant’s residence on daughter-
in-law who did not reside with defendant insufficient); Mahone v. Marshall
Furniture Co., 142 Ga. App. 242 (235 SE2d 672) (1977) (service at defendant’s
residence on babysitter who did not reside with defendant insufficient to obtain
lawful service).
2. Because husband was not properly served with the summons and
complaint, we need not address his remaining enumerations of error.
Judgment reversed. All the Justices concur.
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Decided January 20, 2015.
Domestic relations. Butts Superior Court. Before Judge Wilson.
Johnston Owen & Bullard, Lance N. Owen, for appellant.
Fears Lawrence & Turner, Kenneth G. Lawrence, for appellee.
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