Anderson Anesthesia, Inc. v. Anderson , 333 Ga. App. 437 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
June 9, 2015
In the Court of Appeals of Georgia
A15A0120. ANDERSON ANESTHESIA, INC. v. ANDERSON.
MCMILLIAN, Judge.
Anderson Anesthesia, Inc. (“AA”), an Alabama corporation, appeals the trial
court’s order dismissing its petition filed pursuant to the Uniform Interstate Family
Support Act (the “UIFSA”), OCGA § 19-11-100 et seq., to stay enforcement of an
“Income Assignment Order” (the “Income-Withholding Order”) issued by a
Louisiana court and served on Premier Anesthesia, LLC (“Premier”), a Georgia
limited liability company, seeking to withhold a portion of AA’s income.1 We affirm
for the reasons set forth below.
1
This is the second appearance of this case before this Court. This Court
dismissed an earlier appeal by AA because the Georgia trial court had not issued a
final order in the case and AA had failed to follow the procedures for an interlocutory
appeal; thus, this Court lacked jurisdiction to consider the appeal. See Order dated
May 20, 2014, Case No. A14D0344.
“On appeal, we review a trial court’s decision to grant or deny a motion to
dismiss de novo.” Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423
(762 SE2d 138) (2014). And “[i]n reviewing the grant of a motion to dismiss, an
appellate court must construe the pleadings in the light most favorable to the
appellant with all doubts resolved in the appellant’s favor.” (Citation and punctuation
omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007).2
This matter arises out of the divorce of Anne E. (“Anne”) and Warren Jeff
Anderson (“Warren”).3 The Income-Withholding Order recites that Anne was
awarded support in the divorce and that Warren became delinquent in making support
payments. The order directs that Premier withhold 50% of any disposable income,
including but not limited to, wages, salary, commission, [and] compensation as an
2
Although the parties submitted affidavits and other documentation in briefing
the motion to dismiss, the Georgia trial court’s order does not indicate that it
considered such evidence in ruling on the motion; rather, it states that it based its
ruling on the pleadings and arguments of the parties. Thus, we review the Georgia
trial court’s order as a ruling on a motion to dismiss.
3
For clarity, we will refer to the Andersons, individually, by their first names.
2
independent contractor,” from the income Premier owes to Warren or AA4 to satisfy
Warren’s ongoing support obligations and support arrearages.
After the Income-Withholding Order was served on Premier, AA filed a
petition to stay its enforcement, asserting that the Louisiana court lacked authority or
a legal basis to issue an order seizing its income because the court never obtained
personal jurisdiction over AA. In response, Anne, a Louisiana resident, filed a special
appearance answer, denying that the Georgia trial court had personal jurisdiction over
her. Anne also moved to dismiss the petition on the ground that it failed to state a
claim upon which relief can be granted and argued in her briefing in support of the
motion to dismiss that the Georgia trial court lacked both subject matter jurisdiction
over the matter and personal jurisdiction over her.
Following a hearing, the Georgia trial court issued an order on February 21,
2014, in which it questioned whether AA met the UIFSA’s requirements for
contesting the Income-Withholding Order in Georgia (the “First Order”).5 Under the
4
The record indicates that Warren formed AA for tax purposes to receive
income he earned as an independent contractor.
5
The Georgia trial court also found that the mere filing by Anne of an income
assignment order in Georgia did not give the court personal jurisdiction over her,
citing OCGA § 19-11-133 (a). That provision states that “[p]articipation by a
petitioner in a proceeding under this article before a responding tribunal, whether in
3
UIFSA, “[a]n obligor may contest the validity or enforcement of an income-
withholding order issued in another state and received directly by an employer in
Georgia . . . in the same manner as if the order had been issued by a tribunal of
Georgia.” (Emphasis supplied.) OCGA § 19-11-155 (a). For purposes of the UIFSA,
the term
“[o]bligor” means an individual or the estate of a decedent that:
(A) Owes or is alleged to owe a duty of support;
(B) Is alleged but has not been adjudicated to be a parent of a child;
(C) Is liable under a support order; or
(D) Is a debtor in a proceeding under Part 7 of this article.
(Emphasis supplied.) OCGA § 19-11-101 (17). The Georgia trial court noted that “the
entity contesting the validity of the income assignment order is an Alabama
[c]orporation[,] not an individual,” and stated that because no cases had addressed
person, by private attorney, or through services provided by the support enforcement
agency, does not confer personal jurisdiction over the petitioner in another
proceeding.” But given our holding in this case, we need not reach this issue.
4
this issue, it was “reluctant to expand the definition of an obligor to also include
corporations.”
The First Order also stated that the Georgia trial court nevertheless attempted
to confer with the Louisiana court that issued the Income-Withholding Order pursuant
to the provisions of the UIFSA, OCGA § 19-11-136, but was unable to reach the
Louisiana judge presiding over the matter. As a result, the Georgia trial court chose
to stay the case for a period of two weeks to allow AA to file “appropriate [m]otions
in the Louisiana [c]ourt to have the [Income-Withholding Order] set aside since it
claims that the Louisiana [c]ourt was without jurisdiction to enter the order against
it in the first instance.” But if AA failed to file such motions within that period, the
Georgia trial court stated it would dismiss AA’s petition to stay enforcement of the
Income-Withholding Order.
Four months later, on June 19, 2014, the Georgia trial court issued a final order
dismissing AA’s petition, noting that AA had failed to provide the court with any
evidence “that it has initiated any motion or made any type of submission to the
Louisiana [c]ourt seeking to have the [Income-Withholding Order] set aside” (the
“Final Order”). In reaching this judgment, the Georgia trial court made no further
findings of fact or conclusions of law.
5
On appeal, AA asserts that the Georgia trial court erred (1) in concluding that
it had no subject matter jurisdiction to inquire whether a Louisiana income support
order qualified for full faith and credit in Georgia; (2) in concluding that it had no
personal jurisdiction over a Louisiana resident attempting to enforce an illegal foreign
support order in Georgia; and (3) in entering a final order without any supporting
evidence.
We note, however, that the Georgia trial court never expressly concluded that
it lacked subject matter jurisdiction to consider whether the Income-Withholding
Order was entitled to full faith and credit in Georgia. Rather, in the First Order, the
Georgia trial court questioned whether AA had standing to contest the Income-
Withholding Order in Georgia under the UIFSA, and in the Final Order, the Georgia
trial court dismissed AA’s petition after it failed to establish that it had taken action
in Louisiana to contest the Income-Withholding Order.
We find that the Georgia trial court was correct to question AA’s standing to
file the petition in this case. Under Georgia’s UIFSA, only an individual or an estate
meeting the stated criteria may petition a Georgia court to contest an income-
withholding order issued by another state. AA expressly filed its petition under the
UIFSA, but the allegations of the petition demonstrate that AA does not fall within
6
the statutory definition of an obligor under the Act. That definition specifically uses
the term “individual” and in construing the statute, “we must presume that the
legislature’s use of that term was a matter of considered choice.” (Citation and
punctuation omitted.) Lakeview Behavioral Health System, LLC v. UHS Peachford,
LP, 321 Ga. App. 820, 823 (1) (743 SE2d 492) (2013). If the legislature had intended
the term “obligor” to include something other than an individual human being, it
could have used the term “person,” which the UIFSA defines as “an individual,
corporation, business trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any other legal or commercial entity.”
OCGA § 19-11-101 (19). Accordingly, we find that the term “obligor” under the
UIFSA does not include a corporation.
AA asserted in its original petition to stay and the two subsequent amendments
to that petition that it is an Alabama corporation and “an independent legal entity.”6
And, in fact, AA asserted in its “2nd Amended Petition to Stay Enforcement of
6
AA also submitted affidavits signed by Warren, averring that it is a “business
corporation, with a separate identity and existence” and that it has no arrearage of
child support to Anne. However, the Georgia trial court need not have considered this
affidavit in dismissing AA’s petition.
7
Foreign Order and Set Aside Foreign Order” that it “is neither the ‘obligor’ nor his
‘estate,’” citing OCGA § 19-11-101. Therefore, although Warren would qualify as an
“obligor” under the Act, with standing to contest the Income-Withholding Order in
this case, AA, a self-styled “independent” corporation, does not. Accordingly, the
Georgia trial court did not err in dismissing AA’s petition because even when taken
as true, the allegations in the petition, as amended, establish that AA lacks standing
to contest the Income-Withholding Order under the UIFSA. See, e.g., Jurden v. HSBC
Mortgage Corp., 330 Ga. App. 179, 180 (1) (765 SE2d 440) (2014) (dismissal proper
where allegations of complaint show plaintiff lacked standing) (physical precedent
only); Wylie v. Denton, 323 Ga. App. 161, 167-168 (1) (746 SE2d 689) (2013)
(same).7
AA argues that the Georgia trial court nevertheless should have considered the
validity of the Income-Withholding Order under OCGA § 9-12-16 and/or the
provisions of the Uniform Enforcement of Foreign Judgments Law (“UEFJL”),
7
Although Anne’s briefing in support of her motion to dismiss does not
expressly raise the issue of standing under the UIFSA, the transcript of the hearing
on that motion indicates that the issue was raised by the Georgia trial court and
addressed by the parties at that time. Additionally, in an affirmative defense, Anne
asserted that AA failed to comply with the requirements of the UIFSA in bringing the
action.
8
OCGA § 9-12-130 et seq. However, AA expressly invoked the provisions of the
UIFSA in filing all three versions of its petition. And because AA filed the petitions
without standing, the Georgia trial court had no jurisdiction over them and no basis
to consider the validity of the Income-Withholding Order. Cf. Perdue v. Lake, 282
Ga. 348, 348 (a) & 349 (2) (a) (647 SE2d 6) (2007) (“As a general rule, standing must
be determined at the time at which the plaintiff’s complaint is filed in order to place
an actual case or controversy within the purview of the court,” and the Georgia trial
court had no jurisdiction over complaint filed without standing); Julian v. Brooks,
269 Ga. 167, 167 (495 SE2d 569) (1998) (where appellants lack standing to invoke
the jurisdiction of the court, dismissal was proper). Moreover, we note that Anne
never sought to enforce the Income-Withholding Order under the provisions of the
UEFJL, but rather served the order on Premier under the provisions of the UIFSA.
Judgment affirmed. Barnes, P. J., and Ray, J., concur.
9