Margaret Hamner v. James E. Turpen, Jr.

• Court: Court of Appeals of Georgia
• Decided: January 30, 2013
• Docket: A12A2288
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.

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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

January 30, 2013

In the Court of Appeals of Georgia A12A2288. HAMNER v. TURPEN.

BOGGS, Judge.

James Turpen filed a motion for contempt against his ex-wife, Margaret

Hamner, alleging that she violated both the terms of the parties’ divorce decree and

a consent order for custodial modification. Less than a month later, Hamner filed a

complaint against Turpen for modification of custody and visitation. Both actions

were filed in Gwinnett County Superior Court and later consolidated. At the hearing

on these matters, Turpen’s counsel moved to transfer venue to Rabun County. The

trial court granted the motion, and Hamner now appeals from that ruling. Because

Turpen waived any defense of improper venue, the trial court erred in granting the

motion, and we reverse. The record reveals that the 2002 divorce decree, which incorporated the

parties’ settlement agreement, awarded Turpen and Hamner joint legal and physical

custody of their minor child. On March 17, 2010, Turpen filed a pro se motion for

contempt and notice of mediation against Hamner in the Gwinnett County Superior

Court. Three weeks later, Hamner filed a complaint for modification of custody and

visitation. Her complaint, also filed in Gwinnett County, alleged that she and the

minor child were residents of Gwinnett County and that Turpen “resides in Okaloosa,

Florida.” Hamner nevertheless served Turpen at a residence in Rabun County. Turpen

filed a pro se answer to the complaint, in which he simply denied the allegation that

he resided in Florida. On June 23, 2010, the Gwinnett County Superior Court granted

Hamner’s motion to consolidate the two actions. On October 4, 2010, counsel entered

an appearance on Turpen’s behalf.

The trial court held a hearing on the consolidated matters on April 22, 2011.

At the outset of the hearing, Turpen’s counsel alleged for the first time that venue was

improper in Gwinnett County and moved to transfer venue to Rabun County, where

he claimed he had resided during the pendency of the action. Turpen stated during the

hearing that he had lived in Florida “on and off,” and that he had “dual residences,”

one in Rabun County and one in the state of Florida. He explained further that he had

2 been living regularly in Rabun County since March 25, 2009 and that he had returned

to live in Florida in October 2010.

Following the hearing, Turpen filed a brief in support of his oral motion to

transfer the action, and Hamner filed a brief in opposition arguing that Turpen waived

any defense of improper venue. On May 2, 2012, the trial court granted Turpen’s

motion to transfer venue to Rabun County.

On appeal, Hamner contends that the trial court was without authority to grant

the motion to transfer because Turpen waived any defense of improper venue. We

agree. In considering the trial court’s ruling on the motion to transfer venue, we

“affirm the trial court’s findings on disputed factual questions relating to venue if

there is any evidence to support them. But we review de novo the trial court’s

application of the law to undisputed facts.” (Citations and punctuation omitted.) HD.

Supply, Inc. v. Garger, 299 Ga. App. 751 (683 SE2d 671) (2009).

Improper venue is a defense that must be asserted in a responsive pleading or

by motion in writing “before or at the time of pleading.” OCGA § 9-11-12 (b); see

Gravely v. State of Georgia, 285 Ga. App. 691, 692-693 (1) (647 SE2d 372) (2007).

And “improper venue clearly may be waived, even in child custody cases.” (Citations

omitted.) Daust v. Daust, 204 Ga. App. 29, 31 (418 SE2d 409) (1992); see also

3 Houston v. Brown, 212 Ga. App. 834, 834-835 (443 SE2d 3) (1994) (waiver of venue

defense permitted despite strong language of OCGA § 19-9-23 governing actions to

change legal custody). Indeed OCGA § 9-11-12 (h) (1) (B) provides that the defense

of improper venue is waived if neither made by motion nor included in a responsive

pleading, as originally filed.

Here, Turpen did not raise the defense of improper venue until the hearing on

his contempt action and Hamner’s motion to modify custody. Contrary to Turpen’s

argument on appeal, his pro se general denial to Hamner’s allegation that he resided

in Florida is insufficient to raise improper venue as a defense. See, e.g., Orkin

Extermination Co. v. Morrison, 187 Ga. App. 780, 782 (3) (371 SE2d 407) (1988)

(general denial to allegation of venue insufficient). And while Turpen argues that as

a pro se defendant he is held to less stringent pleading standards, he provided nothing

in his answer that could be interpreted as a claim that the action should be heard in

Rabun County where he resided. Compare Coastal Transport v. Tillery, 270 Ga. App.

135, 136 (1) (605 SE2d 865) (2004) (answer stating as affirmative defense that venue

is improper without naming proper county was sufficient to raise issue concerning

venue).

4 Because Turpen failed to raise a defense of improper venue either in his answer

or a motion to dismiss, the trial court was without authority to grant his motion to

transfer the actions to Rabun County. See In the Interest of H. D. M., 241 Ga. App.

805, 808 (3) (527 SE2d 633) (2000) (objection to venue waived where not raised until

termination hearing); Ganny v. Ganny, 238 Ga. App. 123, 125 (2) (518 SE2d 148)

(1999) (objection to venue waived where not raised until closing argument); Houston,

supra, 212 Ga. App. at 834-835; accord Richardson v. Gilbert, ___ Ga. App. ___ (733

SE2d 783) (2012) (trial court erred in granting motion to transfer where party waived

venue defenses).

Judgment reversed. Doyle, P. J. and Andrews, P. J., concur.