Guerrero v. Guerrero

• Court: Supreme Court of Georgia
• Decided: January 20, 2015
• Docket: S14F1754
• Status: Published

Opinion

296 Ga. 432 FINAL 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

2 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

3 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

4 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.

5 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.