McInerney v. McInerney

313 Ga. 462

870 S.E.2d 721

MCINERNEY

v.MCINERNEY.

S21A1068

Supreme Court of Georgia.

Decided: March 15, 2022

Kenneth Paul Johnson, Elizabeth Esther Berenguer, Johnson, Kraeuter & Dunn, LLC, 327 Eisenhower Drive, Savannah, Georgia 31406, for Appellant.

Andrew McLean Wilkes, Oliver Maner, LLP, P.O. Box 10186, Savannah, Georgia 31412-0000, William C Phillips, Oliver Maner LLP, 5 Bailey Reach, Savannah, Georgia 31411, for Appellee.

Bethel, Justice.

This appeal presents the question of whether a superior court can transfer or dismiss a divorce case under the doctrine of forum non conveniens pursuant to OCGA § 9-10-31.1 (a) without offending Article VI, Section II, Paragraph I of the Georgia Constitution, which provides that "[d]ivorce cases shall be tried in the county where the defendant resides." As discussed below, we hold that, with respect to the question of transfer of venue, OCGA § 9-10-31.1 (a) is consistent with the authority vested in the General Assembly by Article VI, Section II, Paragraph VIII of the Georgia Constitution to enact statutes that direct the superior courts on how to exercise their power to change venue. As to the question of dismissal, OCGA § 9-10-31.1 (a) is an exercise of the General Assembly's plenary legislative power under Article III, Section VI, Paragraph I, not a matter of venue subject to the constitutional venue provisions. The venue provisions do not limit the General Assembly's authority to provide for the dismissal of a divorce case based on the doctrine of forum non conveniens. However, because the trial court incorrectly analyzed some of the factors set forth in OCGA § 9-10-31.1 (a), we vacate the trial court's judgment and remand the case for reconsideration in accordance with this opinion.

1. Kristine Ann McInerney and Jeffrey Allen McInerney were married on June 21, 2003, and have two minor children. Kristine, who resides in Indiana with the two children, filed a complaint for divorce on May 1, 2020, in Bryan County, Georgia. At the time of the filing, the marital residence was in Bryan County, and Kristine believed Jeffrey resided there. However, Jeffrey moved to Chatham County shortly before Kristine filed for divorce. On July 2, 2020, Jeffrey sold the marital residence in Bryan County, and the sale proceeds were placed in a trust account as agreed to by the parties.

In his answer and counterclaim for divorce, Jeffrey consented to venue and jurisdiction and admitted he was a Georgia resident who resided in Bryan County within six months of the filing of the complaint for divorce. In his counterclaim, he once again asserted that venue was proper in Bryan County as he was a Bryan County resident during the six-month period prior to Kristine's filing the complaint for divorce.

On July 13, 2020, approximately two months after she initiated the divorce action in Georgia, Kristine initiated a child custody action in Indiana. The parties agree that Indiana has exclusive jurisdiction over the child custody action and all child custody and visitation issues. The parties later participated in mediation in Georgia in an attempt to resolve all issues relating to their divorce and the custody of their children. They were unable to come to an agreement. After the mediation failed, Jeffrey filed a motion to dismiss the divorce case in Bryan County under the doctrine of forum non conveniens pursuant to OCGA § 9-10-31.1 (a).¹

On December 30, 2020, the superior court granted Jeffrey's motion to dismiss, reasoning that all but the last of the statutory factors – the traditional deference given to a plaintiff's choice of forum – listed in OCGA § 9-10-31.1 (a) weighed in favor of dismissal.

The superior court also rejected Kristine's arguments that the factors listed in the statute weighed in favor of retaining jurisdiction in Georgia and that the statute could not be constitutionally applied in light of Article VI, Section II, Paragraph I of the Georgia Constitution.

On January 29, 2021, Kristine timely filed an application for discretionary appeal with the Georgia Court of Appeals. Reasoning that the application raised a constitutional challenge to a statute, the Court of Appeals transferred the application to this Court. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1) (giving the Supreme Court exclusive appellate jurisdiction over all cases in which the constitutionality of a statute has been drawn into question). We thereafter granted her application, and Kristine timely filed a notice of appeal.

In granting the application, we posed the following questions:

(1) Does the provision of Article VI, Section II, Paragraph I of the Georgia Constitution, that "[d]ivorce cases shall be tried in the county where the defendant resides," forbid a trial court from dismissing or transferring a divorce case pursuant to OCGA § 9-10-31.1 ?

(2) Are the provisions of Article VI, Section II, Paragraph I of the Georgia Constitution referenced above subject to waiver by a defendant filing a motion to dismiss or transfer pursuant to OCGA § 9-10-31.1 ?

(3) Does Article VI, Section II, Paragraph VIII of the Georgia Constitution provide the trial court with the authority to transfer or dismiss a divorce case under OCGA § 9-10-31.1, when the case was originally brought in a proper forum? See EHCA Cartersville, LLC v. Turner , 280 Ga. 333, 333, 626 S.E.2d 482 (2006).

2. In construing these constitutional provisions and their

interplay with OCGA § 9-10-31.1, we look to our traditional canons of constitutional and statutory construction for guidance.

We generally apply the ordinary signification to words in construing a constitutional provision. This means we afford the constitutional text its plain and ordinary meaning, view the text in the context in which it appears, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Georgia Motor Trucking Assn. v. Georgia Dept. of Revenue , 301 Ga. 354, 356 (2), 801 S.E.2d 9 (2017).

"This Court must construe the Georgia Constitution to make its parts harmonize and to give sensible meaning to each of them." Blevins v. Dade Cty. Bd. of Tax Assessors , 288 Ga. 113, 115 (1), 702 S.E.2d 145 (2010). "[I]f a statutory rule contradicts a constitutional rule, then the constitutional rule prevails." Carpenter v. McMann , 304 Ga. 209, 211, 817 S.E.2d 686 (2018). With these principles in mind, we turn to the questions presented in this case.

The first and third questions we posed to the parties were designed to discern whether a trial court can transfer or dismiss a divorce case based on a motion invoking the doctrine of forum non conveniens under OCGA § 9-10-31.1 (a). That statute authorizes the trial courts to take two different types of action. First, it authorizes the transfer of venue over a case between counties of proper venue in Georgia when the statutory factors weigh in favor of the transfer. See OCGA § 9-10-31.1 (a) ("As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county."). Second, the statute authorizes the dismissal of actions when a forum outside Georgia is found to be a more convenient forum based on application of the same statutory factors. See OCGA § 9-10-31.1 (a) ("As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action.").

(a) The first question before us is whether the transfer provisions of the statute can be squared with Article VI, Section II, Paragraph I of the Georgia Constitution. That provision specifies that

[d]ivorce cases shall be tried in the county where the defendant resides, if a resident of this state; if the defendant is not a resident of this state, then in the county in which the plaintiff resides; provided, however, a divorce case may be tried in the county of residence of the plaintiff if the defendant has moved from that same county within six months from the date of the filing of the divorce action and said county was the site of the marital domicile at the time of the separation of the parties, and provided, further, that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.

Ga. Const. of 1983, Art. VI, Sec. II, Par. I. Thus, under its plain language, Paragraph I mandates that divorce cases be tried in the specifically listed venues in this provision based on the residence of the parties to the case. Cf. Bradley v. State , 272 Ga. 740, 742 (2), 533 S.E.2d 727 (2000) (interpreting Article VI, Section II, Paragraph VI, which provides that "all criminal cases shall be tried in the county where the crime was committed," as a mandate).

However, this is not the end of our inquiry. As we have said before, "the legislature has the authority to create reasonable statutory rules concerning venue when the Constitution leaves space to do so." Carpenter v. McMann , 304 Ga. 209, 211, 817 S.E.2d 686 (2018). And Article VI, Section II, Paragraph VIII of the Georgia Constitution provides that the "power to change the venue in civil and criminal cases shall be vested in the superior courts to be exercised in such manner as has been, or shall be, provided by law." We have held that

by providing that superior courts have the power to change venue in the manner provided by law, Art. VI, Sec. II, Par. VIII plainly contemplates that, once a plaintiff has filed his or her action in an appropriate venue, the court has the authority to exercise its discretion to change the venue selected by the plaintiff if the General Assembly has enacted a statute authorizing it to do so.

EHCA Cartersville, LLC v. Turner , 280 Ga. 333, 337 (2), 626 S.E.2d 482 (2006). Thus,...