Goldstein v. Goldstein

494 S.E.2d 745, 229 Ga. App. 862, 98 Fulton County D. Rep. 17, 1997 Ga. App. LEXIS 1490

Opinions

ELDRIDGE, Judge.

Sandra Goldstein-Pfisterer¹ appeals from the judgment of the Superior Court of Cobb County holding her in contempt of the custody provisions of a Cobb County divorce decree and modifying those custody provisions. We affirm.

Divorced in 1995 in Cobb County, Georgia, Mitchell Goldstein and appellant Sandra Goldstein-Pfisterer were awarded joint custody of their daughter. The court gave Mr. Goldstein sole power to make decisions regarding schooling and designated his Cobb County residence as the child’s primary residence. The court also set out a detailed schedule for shared physical custody.

Appellant repeatedly violated the custody order by, among other things, removing the child from school without permission, exceeding her vacation time with the child, failing to give the required notice of the days she intended to have the child, and allowing third parties unknown to the father to care for the child. On September 5, 1996, appellant surreptitiously removed the child from school and took her to Switzerland, where they have remained.

Upon arriving in Switzerland on September 6, appellant immediately obtained an ex parte “emergency” order from the District Court in Hinwil, Switzerland, granting appellant temporary sole custody of the child pending an inquiry into the child’s well-being.²

On September 16, 1996, Goldstein filed two separate actions in Cobb Superior Court. Citing appellant’s contumacious conduct and the child’s best interests, he first petitioned the court to modify the custody provisions of the Cobb County divorce decree in order to award him exclusive custody of the child. He then filed an application to hold appellant in contempt of the custody provisions of the divorce decree. In both actions, he alleged appellant was a Swiss national and resided in Switzerland. Both actions were personally served on appellant in Switzerland pursuant to the international service provisions of the Hague Conventions. Appellant signed the service papers.

On September 17, Goldstein-Pfisterer filed an original complaint in Cobb Superior Court seeking to modify the custody provisions of the Cobb County divorce decree through the domestication of the District Court in Hinwil’s temporary custody order of September 6.

Upon motion, the trial court consolidated all three custody-related actions and heard them together on November 25. Appellant appeared through her attorney. The trial court found appellant in contempt and ordered her to purge herself by returning physical custody of the child to Goldstein within 30 days. The Cobb Superior Court awarded physical custody of the child to Mitchell Goldstein and ordered the return of the child. Held:

1. Appellant Goldstein-Pfisterer challenges the Cobb County Superior Court’s exercise of subject matter jurisdiction over Mitchell Goldstein’s custody suit. She contends that pursuant to OCGA § 19-9-46 (a) of the Uniform Child Custody Jurisdiction Act (“UCCJA”) (OCGA § 19-9-40 et seq.), pending custody proceedings in the District Court of Hinwil, Switzerland, prevented the exercise of the Cobb County Superior Court’s subject matter jurisdiction.

(a) Cobb County Superior Court had subject matter jurisdiction over Goldstein’s custody suit, since Cobb County, Georgia, is the “home state” of the child. OCGA § 19-9-43 (a). However, “[t]he [UCCJA] is applicable only to states, territories, or possessions of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.” Richardson v. Richardson, 257 Ga. 101 (2) (355 SE2d 664) (1987); Binns v. Smith, 251 Ga. 861 (310 SE2d 225) (1984). Accordingly, the jurisdictional provisions of the UCCJA do not apply in the international arena so as to confer jurisdiction upon an international tribunal or limit the exercise of otherwise proper jurisdiction in Georgia because of “pending” international proceedings.³

(b) Appellant’s arguments regarding a jurisdictional “conflict” between the Swiss District Court of Hinwil’s pending proceedings and the proceedings in Cobb County have been rendered moot by the Higher Court of the Canton of Zurich’s determination that the proceedings in Hinwil were unlawful and the finding that jurisdiction was proper in Cobb County. OCGA § 5-6-48 (b) (3).

2. Goldstein-Pfisterer is a resident of Switzerland and process was served in Switzerland. She contends that neither OCGA § 19-9-45 of the UCCJA nor the Georgia Long Arm Statute, OCGA § 9-10-91, provides authority for international service of process in Gold-stein’s contempt action so as to confer personal jurisdiction over her in Cobb County Superior Court.

Cobb County Superior Court had the authority to hear Mitchell Goldstein’s contempt action. Dyer v. Surratt, 266 Ga. 220, 221 (466 SE2d 584) (1996); Ashburn v. Baker, 256 Ga. 507, 509 (350 SE2d 437) (1986). However, the Cobb Superior Court’s judgments are not enforceable against Goldstein-Pfisterer unless the court has obtained personal jurisdiction over her. Id. In order for the Cobb Superior Court to bind Goldstein-Pfisterer to its judgments in personam, there must be (a) personal service or (b) a waiver of personal service upon her. Id. Herein, the Cobb County Superior Court obtained personal jurisdiction over Goldstein-Pfisterer in two ways:

(a) A “plaintiff, by voluntarily instituting . . . suit, gives the superior court of the county where it is so instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted, — such proceedings in equity being ancillary to or defensive of the pending suit.” Caswell v. Bunch, 77 Ga. 504 (a) (1886); Terhune v. Pettit, 195 Ga. 793 (25 SE2d 660) (1943); Ledford v. Bowers, 248 Ga. 804, 806 (286 SE2d 293) (1982). The Civil Practice Act has not changed this principle. Yount v. Mulle, 266 Ga. 729 (470 SE2d 647) (1996); Gaither v. Gaither, 206 Ga. 808 (58 SE2d 834) (1950).

The day after appellee Mitchell Goldstein instituted his two separate actions in Cobb County against appellant for (1) contempt of the custody provisions of the divorce decree and (2) modification of the custody provisions of the divorce decree, Goldstein v. Goldstein, Civil Action Nos. 96-1-6974 and 96-1-6975, appellant filed her own, separate complaint against appellee in Cobb County to modify the Cobb County custody decree through the domestication of the Swiss temporary custody order, Pfisterer v. Goldstein, Civil Action No. 96-1-6998-24. Because the litigants and the issues in all three cases were the same, the trial court, upon motion, consolidated the actions. See OCGA § 9-11-42 (a). The trial court heard the claims together.⁴

Appellant’s general appearance in an original suit and her submission therein to Cobb County jurisdiction waived all defenses in abatement under OCGA § 9-11-12 (b) (2), (3), (4), (5), and (7). Compare Ashburn v. Baker, supra at 509. Appellant voluntarily submit ted herself to the jurisdiction of the trial court for the purposes of the litigation of all issues legitimately raised in law or equity by her attempt to modify the original Cobb County custody order through the domestication of the Swiss temporary custody order. This litigation included the substance of appellee’s claims regarding the Cobb County custody order. Mitchell Goldstein is allowed to assert such affirmative relief against appellant as is related to the defense against appellant’s complaint.⁵ Global Fibers v. Foster, 207 Ga. App. 1, 2 (427 SE2d 3) (1992); Faulk v. Latham, 194 Ga. App. 522 (391 SE2d 7) (1990).

Appellant cannot personally invoke the jurisdiction of the Cobb County Superior Court with regard to her custody complaint and then deny the same court’s jurisdiction over her person with regard to appellee’s custody complaint when (1) the parties, (2) the subject matter of the claims (custody), and (3) the venue required by statute (Cobb County) are the same for all. Yount v. Mulle, supra; see generally Buckholts v. Buckholts, 251 Ga. 58 (302 SE2d 676) (1983). The ends of justice would be ill served by such a “now you see me, now you don’t” approach to in personam jurisdiction, which leaves one party legally at the mercy of another.

(b) Goldstein-Pfisterer was personally served process in Switzerland following the specific international service provisions of the Hague Conventions, so as to confer in personam jurisdiction on the Cobb County Superior Court. Camp v. Sellers & Co., 158 Ga. App. 646, 647 (2) (281 SE2d 621) (1981).⁶ This has been pled and proved from the inception of this case. Goldstein-Pfisterer signed for and admits such service. The Hague Conventions are binding in Georgia (as in all states) under the Supremacy Clause of the United States Constitution. “[A]ll Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, Par. 2. We have previously held that “judicial notice must be taken of a treaty and ... it will predominate over any statutory provision [or lack thereof] of the State of Georgia.” (Emphasis supplied.) Camp v. Sellers, supra at 648. The Hague Conventions provide the authority, as well as the method, for service of process internationally. Id.

As it is undisputed by any party that the international service provisions of the Hague Conventions were followed with regard to service of process on both of Mitchell Goldstein’s Cobb County actions, service on appellant was perfected so as to confer in per-sonam jurisdiction over her in the Superior Court of Cobb County as to both of those actions.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., and Ruffin, J, concur. Andrews, C. J., and Smith, J., concur in the judgment only. Beasley, J., concurs in part and dissents in part.

Footnotes

1

Appellant married Andreas Pfisterer, a Swiss national, on August 28,1996.

2

The Swiss district court, following a subsequent hearing in which Goldstein was present, rejected Goldstein’s plea to have the child returned. This ruling was appealed by Gold-stein, and the Higher Court of the Canton of Zurich reversed the district court’s ruling, finding that jurisdiction over the custody matter was proper only in Cobb County, Georgia. The higher Swiss court ordered appellant to return the child to Cobb County for a “restoration of the status quo ante” and in order to “leave it up to the judge at the location of the hitherto usual residence to decide about the custody.” The record does not show that this has occurred.

3

OCGA § 19-9-63 states “[t]he general policies of [the UCCJA] extend to the international area.” This refers to comity in the recognition and enforcement of an international custody decree which has been domesticated and does not address international proceedings. Moreover, no such international custody decree is before this Court in this appeal.

4

Appellant does not enumerate as error the consolidation of the actions.

5

Appellant filed a complaint for domestication, which is subject to answer and defenses. Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 707-708 (463 SE2d 23) (1995) (Beasley, C. J., concurring specially).

6

Camp v. Sellers, supra, involved the same international service provision of the Hague Conventions as does the instant case: Service Abroad of Judicial & Extrajudicial Documents, 1969 WL 22798 (TIA) (each contracting nation shall proceed in conformity with the provisions of Articles 3 to 6).