SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, 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. https://www.gaappeals.us/rules
May 29, 2025
In the Court of Appeals of Georgia A25A0180. OGUNDANA v. OGUNDANA.
DAVIS, Judge.
Anthony Ogundana, the Father, filed an action against Helen Ogundana, the
Mother, in Cobb County. In her verified answer and again at a hearing, the Mother
took exception to venue. More specifically, she averred that venue was proper in the
county she resided — Fulton County. Believing the Mother had waived the improper
venue defense, the trial court moved forward. But since the record demonstrates that
the Mother preserved the venue defense, and because the evidence is uncontroverted
that the Mother did not reside in Cobb County, we vacate the decisions below with
direction. In August 2020, the Father brought a child custody action in Cobb County
against the Mother. When he could not locate her, the Father sought permission to
perfect service by publication, which the trial court granted. Meanwhile, during a
separate proceeding in Fulton County, the Mother happened to learn of the Father’s
suit pending in Cobb County. So, she filed a verified answer1 and raised several
defenses, among them improper venue:
I reside in Fulton County, Georgia. The Modification should have been filed in the county of my residence. I respectfully request that this matter be transferred to the Fulton County Superior Court.
Elsewhere in her answer, the Mother states, “I am currently a resident of Fulton
County, so jurisdiction and venue are not proper.”
A day later, the trial court held a previously scheduled hearing where the
Mother emphasized the defenses raised in her answer. In particular, the Mother
stated: “I would like to [tell] the [c]ourt that . . . the county . . . put in [the]
[complaint] is the wrong county. I don’t live in Cobb County . . . I live in Fulton
County.” Still, the trial court proceeded, stating: “Well, I’ve got the case right now.
1 In a verified answer, the defendant’s averments are made under oath. See OCGA § 9-11-11 (c). 2 And so I’m going to go forward with it.” Thereafter, it awarded temporary custody
to the Father after a temporary hearing on June 18, 2021 and eventually granted him
sole legal and physical custody in a final judgment dated July 26, 2023. This appeal
followed.2
On appeal, the Mother enumerates several errors and challenges venue. Since
venue is a threshold issue, we start there. See Equity Tr. Co. v. Jones, 339 Ga. App. 11,
14 (792 SE2d 458) (2016). If “the record contains any evidence to support the trial
court’s finding on venue,” we affirm “unless the evidence demands a contrary
finding.” Camp v. Peetluk, 262 Ga. App. 345, 348 (1) (585 SE2d 704) (2003). But as
always, “we review de novo the trial court’s application of the law to undisputed
facts.” HD Supply, Inc. v. Garger, 299 Ga. App. 751, 751 (683 SE2d 671) (2009).
First we consider whether the trial court erred when it determined the Mother
waived the defense of improper venue.3 The final judgment recognized that the
Mother challenged venue during the temporary hearing and raised the defense in her
2 The Father did not file a brief. 3 See OCGA § 9-11-12 (b), (h) (1) (B) (stating the defense of improper venue may be waived if omitted from a responsive pleading — if a responsive pleading is required). 3 answer but concluded the “Mother waived her venue defense . . . because her answer
was not timely filed.” While it is true that an answer must be filed within 60 days after
the trial court issues an order for service by publication, “[i]f the proof of service is
not filed . . . , the time for the party served to answer . . . shall not begin to run until
such proof of service is filed.” OCGA § 9-11-4 (f) (1) (C), (h). In case of publication,
“the certificate of the clerk of court certifying to the publication” serves as the proof.
OCGA § 9-11-4 (h) (3).
Here, because the clerk of court never filed a certificate certifying to the
publication, the Mother’s deadline to answer did not begin to run. See OCGA § 9-11-4
(h) (“If the proof of service is not filed . . . the time for the party served to answer the
process shall not begin to run. . . .”); see also Summers v. Wasdin, 337 Ga. App. 671,
672 (2) (a) (788 SE2d 573) (2016). And without a deadline to satisfy, the Mother’s
answer could not be untimely. See, e.g., Nally v. Bartow Cty. Grand Jurors, 280 Ga.
790, 792 (4) (633 S.E.2d 337) (2006)(“[T]he time for filing an answer never began to
run because [plaintiff] did not perfect service on any of the [defendants].”); OCGA
§ 9-11-12 (b) (“Every defense, in law or fact, . . . shall be asserted in the responsive
4 pleading . . . if one is required.”) (emphasis supplied). It follows then that Mother did
not waive her defense of improper venue under these circumstances.4
Having found the Mother did not waive the venue defense, the analysis from
this point is straightforward. To begin with, a “complaint seeking a change of legal
custody or physical custody shall be initiated in compliance with Article VI, Section
II, Paragraph VI of the Constitution of this state.” OCGA § 19-9-23 (a). Under Ga.
Const. Art. VI, § II, Para. VI, “civil cases . . . shall be tried in the county where the
defendant resides[.]” Accordingly, venue is a constitutional requirement and only
appropriate in the county where the defendant resides. See Goyal v. Fifadara, 324 Ga.
App. 567, 568 (751 SE2d 190) (2013).
In this case, the evidence shows that the Mother did not reside in Cobb County
at the time the Father filed his action. First, the Mother’s verified answer avers that
she resides in Fulton County and not Cobb County. Then, during the temporary
hearing, she told the trial court in open court that she did not live in Cobb County.
Finally, the Father knew the Mother had not resided in Cobb County “for more than
4 The Mother did not challenge the sufficiency, validity, and fact of service by omitting the affirmative defense in her answer. So, we address service only in the context of analyzing the answer deadline. Indeed, only after calculating the deadline can we determine the timeliness of the Mother’s answer. 5 two years” preceding his action. He said so, in fact, in support of his motion for
service by publication.
Because the trial court determined that venue was waived, it did not analyze the
residency issue or make any findings about venue.5 There is no record evidence that
would support a finding that venue was proper in Cobb County, given the Mother’s
sworn statements to the contrary and the sworn statements made by the Father stating
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SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, 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. https://www.gaappeals.us/rules
May 29, 2025
In the Court of Appeals of Georgia A25A0180. OGUNDANA v. OGUNDANA.
DAVIS, Judge.
Anthony Ogundana, the Father, filed an action against Helen Ogundana, the
Mother, in Cobb County. In her verified answer and again at a hearing, the Mother
took exception to venue. More specifically, she averred that venue was proper in the
county she resided — Fulton County. Believing the Mother had waived the improper
venue defense, the trial court moved forward. But since the record demonstrates that
the Mother preserved the venue defense, and because the evidence is uncontroverted
that the Mother did not reside in Cobb County, we vacate the decisions below with
direction. In August 2020, the Father brought a child custody action in Cobb County
against the Mother. When he could not locate her, the Father sought permission to
perfect service by publication, which the trial court granted. Meanwhile, during a
separate proceeding in Fulton County, the Mother happened to learn of the Father’s
suit pending in Cobb County. So, she filed a verified answer1 and raised several
defenses, among them improper venue:
I reside in Fulton County, Georgia. The Modification should have been filed in the county of my residence. I respectfully request that this matter be transferred to the Fulton County Superior Court.
Elsewhere in her answer, the Mother states, “I am currently a resident of Fulton
County, so jurisdiction and venue are not proper.”
A day later, the trial court held a previously scheduled hearing where the
Mother emphasized the defenses raised in her answer. In particular, the Mother
stated: “I would like to [tell] the [c]ourt that . . . the county . . . put in [the]
[complaint] is the wrong county. I don’t live in Cobb County . . . I live in Fulton
County.” Still, the trial court proceeded, stating: “Well, I’ve got the case right now.
1 In a verified answer, the defendant’s averments are made under oath. See OCGA § 9-11-11 (c). 2 And so I’m going to go forward with it.” Thereafter, it awarded temporary custody
to the Father after a temporary hearing on June 18, 2021 and eventually granted him
sole legal and physical custody in a final judgment dated July 26, 2023. This appeal
followed.2
On appeal, the Mother enumerates several errors and challenges venue. Since
venue is a threshold issue, we start there. See Equity Tr. Co. v. Jones, 339 Ga. App. 11,
14 (792 SE2d 458) (2016). If “the record contains any evidence to support the trial
court’s finding on venue,” we affirm “unless the evidence demands a contrary
finding.” Camp v. Peetluk, 262 Ga. App. 345, 348 (1) (585 SE2d 704) (2003). But as
always, “we review de novo the trial court’s application of the law to undisputed
facts.” HD Supply, Inc. v. Garger, 299 Ga. App. 751, 751 (683 SE2d 671) (2009).
First we consider whether the trial court erred when it determined the Mother
waived the defense of improper venue.3 The final judgment recognized that the
Mother challenged venue during the temporary hearing and raised the defense in her
2 The Father did not file a brief. 3 See OCGA § 9-11-12 (b), (h) (1) (B) (stating the defense of improper venue may be waived if omitted from a responsive pleading — if a responsive pleading is required). 3 answer but concluded the “Mother waived her venue defense . . . because her answer
was not timely filed.” While it is true that an answer must be filed within 60 days after
the trial court issues an order for service by publication, “[i]f the proof of service is
not filed . . . , the time for the party served to answer . . . shall not begin to run until
such proof of service is filed.” OCGA § 9-11-4 (f) (1) (C), (h). In case of publication,
“the certificate of the clerk of court certifying to the publication” serves as the proof.
OCGA § 9-11-4 (h) (3).
Here, because the clerk of court never filed a certificate certifying to the
publication, the Mother’s deadline to answer did not begin to run. See OCGA § 9-11-4
(h) (“If the proof of service is not filed . . . the time for the party served to answer the
process shall not begin to run. . . .”); see also Summers v. Wasdin, 337 Ga. App. 671,
672 (2) (a) (788 SE2d 573) (2016). And without a deadline to satisfy, the Mother’s
answer could not be untimely. See, e.g., Nally v. Bartow Cty. Grand Jurors, 280 Ga.
790, 792 (4) (633 S.E.2d 337) (2006)(“[T]he time for filing an answer never began to
run because [plaintiff] did not perfect service on any of the [defendants].”); OCGA
§ 9-11-12 (b) (“Every defense, in law or fact, . . . shall be asserted in the responsive
4 pleading . . . if one is required.”) (emphasis supplied). It follows then that Mother did
not waive her defense of improper venue under these circumstances.4
Having found the Mother did not waive the venue defense, the analysis from
this point is straightforward. To begin with, a “complaint seeking a change of legal
custody or physical custody shall be initiated in compliance with Article VI, Section
II, Paragraph VI of the Constitution of this state.” OCGA § 19-9-23 (a). Under Ga.
Const. Art. VI, § II, Para. VI, “civil cases . . . shall be tried in the county where the
defendant resides[.]” Accordingly, venue is a constitutional requirement and only
appropriate in the county where the defendant resides. See Goyal v. Fifadara, 324 Ga.
App. 567, 568 (751 SE2d 190) (2013).
In this case, the evidence shows that the Mother did not reside in Cobb County
at the time the Father filed his action. First, the Mother’s verified answer avers that
she resides in Fulton County and not Cobb County. Then, during the temporary
hearing, she told the trial court in open court that she did not live in Cobb County.
Finally, the Father knew the Mother had not resided in Cobb County “for more than
4 The Mother did not challenge the sufficiency, validity, and fact of service by omitting the affirmative defense in her answer. So, we address service only in the context of analyzing the answer deadline. Indeed, only after calculating the deadline can we determine the timeliness of the Mother’s answer. 5 two years” preceding his action. He said so, in fact, in support of his motion for
service by publication.
Because the trial court determined that venue was waived, it did not analyze the
residency issue or make any findings about venue.5 There is no record evidence that
would support a finding that venue was proper in Cobb County, given the Mother’s
sworn statements to the contrary and the sworn statements made by the Father stating
he knew the Mother did not reside in Cobb County.6 Accordingly, as venue was not
proper in Cobb County, the trial court did not have authority to issue either the
temporary order of custody or final judgment, which means both the order and
5 The Mother flagged improper venue in two motions: initially in her motion to transfer venue and again in her motion to set aside. Both were summarily denied without any explanation why or findings of fact as to the Mother’s residence. As a reminder, “on a motion to dismiss for improper venue, the trial court may receive evidence and make relevant factual findings to decide the threshold issue of venue.”) (Citation and punctuation omitted.) Jones, 339 Ga. App. at 14. Moreover, if a defendant raises any of the defenses enumerated in OCGA § 9-11-12 (b) (1)-(7), including improper venue, then the trial court must hold a preliminary hearing when requested by any party. See OCGA § 9-11-12 (d). 6 Because the Father did not file a brief, the Mother’s statement of facts is accepted as true. See Ga. Ct. App. Rule 25 (b). 6 judgment are void.7 See Lowe v. Lowe, 314 Ga. App. 689, 693 (1) (725 SE2d 820)
(2012); Thorpe v. Thorpe, 268 Ga. 724, 726 (492 SE2d 887) (1997) (finding the trial
court’s judgment and order directing service by publication void in the absence of
proper venue); Ross v. Waters, 332 Ga. App. 623, 625 (1) (774 SE2d 195) (2015) (“A
trial court without venue lacks authority to issue an order or judgment, and any such
order or judgment is void.”) (citation omitted).
Accordingly, we vacate the June 18, 2021 temporary order and the July 26, 2023
final judgment, and remand with direction to transfer the case to the Superior Court
of Fulton County after notice to the parties and in accordance with the Ga. Unif.
Transfer Rules.
Judgment vacated and case remanded with direction. Rickman, P. J., and Gobeil,
J., concur.
7 Given this conclusion, it is not necessary to reach the Mother’s remaining enumerated errors. 7