Jeremy Shawn Emerman v. Brooke Emily Hetherington

• Court: Court of Appeals of Georgia
• Decided: April 21, 2022
• Docket: A22A0615
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and MARKLE, 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

April 21, 2022

In the Court of Appeals of Georgia A22A0615. EMERMAN v. HETHERINGTON.

MARKLE, Judge.

After the trial court dismissed Jeremy Shawn Emerman’s complaint for divorce

from Brooke Emily Hetherington for lack of subject matter jurisdiction, we granted

Emerman’s application for discretionary appeal to determine whether the trial court

properly granted Hetherington’s motion to dismiss. On appeal, Emerman argues that

the trial court failed to accept as true his allegations in the complaint concerning his

residency, as it was required to do on a motion to dismiss, and it erred by dismissing

the petition without holding an evidentiary hearing. For the following reasons, we

vacate the trial court’s dismissal of the complaint, and remand the case with direction

for the trial court to conduct an evidentiary hearing. On appeal, we review de novo a trial court’s grant of a motion to dismiss due to lack of subject matter jurisdiction. We also construe the pleadings in the light most favorable to the nonmoving party with any doubts resolved in that party’s favor.

(Citations and punctuation omitted.) Douglas County v. Hamilton State Bank, 340 Ga.

App. 801, 801-802 (798 SE2d 509) (2017); see also Stillwell v. Topa Ins. Co., Case

No. A21A1752, __ Ga. App. __ (__ SE2d __), 2022WL701634, at *2.

So viewed, the record shows that Emerman and Hetherington married in

Australia in 2017, and separated in July 2020. In October 2020, Emerman filed his

divorce complaint in the Superior Court of Coweta County. With respect to residency,

Emerman alleged that he was a resident of that county, and had been a resident of the

State of Georgia for a continuous period of six months immediately preceding the

filing of the complaint.

Hetherington filed a special appearance, and moved to dismiss the complaint,

alleging, among other things, that the trial court lacked subject matter jurisdiction

because Emerman could not prove that he met the six-month Georgia residency

requirement of OCGA § 19-5-2.1 Hetherington noted that the parties had never lived

1 Hetherington also alleged that the trial court lacked personal jurisdiction over her because she was not properly served. The record shows, however, that

2 in Georgia, and that they last resided together in Scotland from December 2019 until

July 2020.

The trial court scheduled a hearing on the motion for the limited purpose of

receiving argument.2 Hetherington’s counsel argued that, because Emerman had lived

in Scotland until shortly before filing the divorce complaint, he could not meet the

six-month Georgia residency requirement. Emerman’s counsel, on the other hand,

argued that Emerman alleged he resided in Georgia for six months before filing the

divorce complaint, and that, when reviewing Hetherington’s motion to dismiss, the

trial court must take that allegation as true.

Following the hearing, the trial court granted Hetherington’s motion to dismiss,

finding that Emerman failed to meet the Georgia residency requirement because he

“neither identified nor provided any evidence in support of his claim to be a bona fide

Hetherington was personally served in Australia in March 2021. Hetherington also counterclaimed for divorce, seeking alimony and a division of property. The trial court rejected Hetherington’s personal jurisdiction argument, and it did not reach her claim of insufficient service. 2 The trial court allowed Hetherington to appear by video conference.

3 resident.” We granted Emerman’s application for discretionary appeal, and this appeal

followed.3

In related enumerations of error, Emerman argues that the trial court erred by

failing to either accept as true the allegations of his complaint or permit him to

present evidence of his residency. We agree.

Under OCGA § 19-5-2, “[n]o court shall grant a divorce to any person who has

not been a bona fide resident of this state for six months before the filing of the

petition for divorce[.]” The party filing for divorce bears the burden of establishing

compliance with the residency requirement, and he may do so by showing that “he

maintained actual residence in Georgia during the relevant time and that he had an

intent at that time to remain in Georgia indefinitely.” Black v. Black, 292 Ga. 691, 692

(1) (740 SE2d 613) (2013). If this residency requirement is not satisfied, then the trial

court lacks subject matter jurisdiction to grant the divorce. See Crittenden v.

Crittenden, 354 Ga. App. 672, 673 (2) (840 SE2d 496) (2020).

Here, Emerman alleged that he was a resident of Coweta County and had been

for the six months preceding the filing of the divorce complaint. In considering

3 Hetherington did not file an appellate brief. See Court of Appeals Rule 23 (b) (“Appellees are encouraged but, . . . , are not required to file a brief.”).

4 Hetherington’s motion to dismiss for lack of subject matter jurisdiction under OCGA

§ 9-11-12 (b) (1), the trial court held a hearing on Hetherington’s motion, but it

limited the hearing to legal argument only, and did not consider any evidence, and

neither party submitted affidavits on the jurisdictional issue. See OCGA § 9-11-43

(b) (“When a motion is based on facts not appearing of record, the court may hear the

matter on affidavits presented by the respective parties, but the court may direct that

the matter be heard wholly or partly on oral testimony[.]”).

The trial court relied on our decisions in Crittenden, 354 Ga. App. 672, and

Black, 292 Ga. 691, in finding that Emerman failed to meet his burden of proving his

Georgia residency. However, in both of those cases, the trial court held an evidentiary

hearing prior to dismissing the petition. Thus, these cases do not support the trial

court’s conclusion here. Emerman contends that, if given the opportunity to have an

evidentiary hearing, he would have presented testimony and evidence, including his

Georgia driver’s license, lease agreement, and rent checks, to satisfy his burden of

establishing his Georgia residency. But, because the hearing was limited to legal

argument only, Emerman was deprived of his opportunity to prove residency. As

such, because the trial court did not allow the parties to present evidence, its factual

finding as to Emerman’s residency is premature, as there was no basis for the trial

5 court’s ruling as to Emerman’s residency. See OCGA § 9-11-43 (b). Accordingly, on

this record, the trial court erred in dismissing Emerman’s divorce complaint. We

therefore vacate the trial court’s order and remand the case for further proceedings

consistent with this opinion.

Judgment vacated and case remanded with direction. Dillard, P. J., and

Mercier, J., concur.