HARDEE v. WHITLOCK Et Al. (Two Cases).

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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
April 18, 2018
In the Court of Appeals of Georgia
A18A0538, A18A0539. HARDEE v. WHITLOCK et al. (two cases).
MCFADDEN, Presiding Judge.
In these related appeals, Janet Hardee appeals from orders issued by the
Probate Court of Newton County granting James B. Whitlock, Jr.’s petitions to
probate the wills of Georgia Anne C. Whitlock and James B. Whitlock (the testators).
Hardee challenges the probate court’s jurisdiction, arguing that, although the testators
were in the care of a nursing home in Newton County at the times of their deaths, they
were not domiciled in Newton County. But the probate court’s factual findings
authorized the exercise of jurisdiction and Hardee has not shown by the record that
those factual findings lacked evidentiary support. So we affirm.
Our Probate Code provides that “[t]he probate court shall have exclusive
jurisdiction over the probate of wills” and that “[t]he county of domicile of the
testator at death shall give jurisdiction to the probate court of that county.” OCGA §
53-5-1 (a), (b). As to a testator in the care of a nursing home, the Probate Code states:
The domicile of a testator who was in the care of a nursing home or
other similar facility at the time of death shall be presumed to be the
county in which the testator was domiciled immediately before entering
the nursing home or other facility; provided, however, this presumption
may be rebutted. If it is determined by the probate court that the testator
considered or, in the absence of an impairment of mental faculties, the
testator would have considered the county in which the facility is
located to be the testator’s domicile, then for purposes of this Code
section that county shall be considered the testator’s county of domicile.
OCGA § 53-5-1 (c).
To acquire a domicile, “[t]here must be a concurrence of actual residence and
the intention to remain[.]” Worsham v. Ligon, 144 Ga. 707, 711 (87 S.E. 1025) (1916)
(citations omitted). Accord Midkiff v. Midkiff, 275 Ga. 136, 137 (1) (562 SE2d 177)
(2002); Sorrells v. Sorrells, 247 Ga. 9, 12 (3) (274 SE2d 314) (1981). “If a person
actually removes to another place, with the intention of remaining there for an
indefinite period of time as a place of fixed domicile, such place becomes his
domicile. A floating intention to return to a past residence does not retain that original
domicile.” Conrad v. Conrad, 278 Ga. 107, 108 (597 SE2d 369) (2004) (citations,
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punctuation and emphasis omitted). See also Black v. Black, 292 Ga. 691, 692 (1) n.
3 (740 SE2d 613) (2013); Worsham, supra.
The orders on appeal state that the probate court received evidence at a hearing
on the issue of the testators’ domicile. “Where a probate court sits as a finder of fact,
we accept [her] findings if they are supported by any evidence,” In the Estate of
Price, 324 Ga. App. 681, 681 (751 SE2d 487) (2013) (citation omitted), including her
findings regarding domicile. See In the Interest of M. P., 338 Ga. App. 696, 701 (1)
n. 15 (791 SE2d 592) (2016). The record, however, contains no transcript of the
hearing. As the appellant, Hardee bears the burden of showing error by the record,
and “without a transcript, [we] must assume that the evidence adduced below was
sufficient to support the probate court’s findings.” Price v. Price, 281 Ga. 126, 127
(636 SE2d 546) (2006) (citation omitted).
The probate court’s findings included the following: The testators lived in a
nursing home in Newton County at the times of their deaths. Before moving into the
Newton County nursing home, they had lived in Fulton County for more than 40
years in their own home and then had lived in Hardee’s residence in Rockdale County
for a month and in a Rockdale County nursing home for approximately half a year.
Both testators suffered from dementia and required constant care. They ate all of their
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meals at the nursing home and returned to the nursing home after any doctor
appointments or hospitalizations. The testators had moved personal property,
including furniture, into the Newton County nursing home. There were no plans for
the testators to return to their Fulton County home, which Hardee was preparing to
sell under a power of attorney, and “there was no credible evidence that either
[testator] planned to move from [the Newton County nursing home].” The probate
court expressly rejected as not credible Hardee’s testimony that the testators planned
to return to her residence in Rockdale County. See generally Cruver v. Mitchell, 289
Ga. App. 145, 147 (1) (b) (656 SE2d 269) (2008) (“On appeal, we must defer to the
probate court’s credibility determinations.”) (citations omitted).
From these facts, the probate court concluded that Whitlock, Jr. “successfully
rebutted the presumption regarding domicile [in OCGA § 53-5-1 (c)] and [found that]
Newton County was the established domicile of the [testators] at the times of their
deaths.” Reviewing de novo the probate court’s application of law to her factual
findings, see In re Estate of Price, 324 Ga. App. at 681, we discern no error. The
probate court could infer from the facts recited above that the testators intended (or
would have intended, absent impairment of their mental faculties) to remain in the
Newton County nursing home indefinitely. So the probate court was authorized to
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find that Whitlock, Jr. rebutted the statutory presumption that the testators’ domicile
did not change when they moved into the nursing home. See OCGA § 53-5-1 (c).
Consequently, Hardee has not shown by the record that the probate court erred
in finding that the testators were domiciled in Newton County at the times of their
deaths. It follows that Hardee has not shown that the probate court erred in exercising
jurisdiction over the petitions to probate the testators’ wills. See OCGA § 53-5-1 (b).
Judgments affirmed. Ray and Rickman, JJ., concur.
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