313 Ga. 462 FINAL COPY
S21A1068. MCINERNEY V. MCINERNEY.
BETHEL, Justice.
This appeal presents the question of whether a superior court
can transfer or dismiss a divorce case under the doctrine of forum
non conveniens pursuant to OCGA § 9-10-31.1 (a) without offending
Article VI, Section II, Paragraph I of the Georgia Constitution,
which provides that “[d]ivorce cases shall be tried in the county
where the defendant resides.” As discussed below, we hold that, with
respect to the question of transfer of venue, OCGA § 9-10-31.1 (a) is
consistent with the authority vested in the General Assembly by
Article VI, Section II, Paragraph VIII of the Georgia Constitution to
enact statutes that direct the superior courts on how to exercise
their power to change venue. As to the question of dismissal, OCGA
§ 9-10-31.1 (a) is an exercise of the General Assembly’s plenary
legislative power under Article III, Section VI, Paragraph I, not a matter of venue subject to the constitutional venue provisions. The
venue provisions do not limit the General Assembly’s authority to
provide for the dismissal of a divorce case based on the doctrine of
forum non conveniens. However, because the trial court incorrectly
analyzed some of the factors set forth in OCGA § 9-10-31.1 (a), we
vacate the trial court’s judgment and remand the case for
reconsideration in accordance with this opinion.
1. Kristine Ann McInerney and Jeffrey Allen McInerney were
married on June 21, 2003, and have two minor children. Kristine,
who resides in Indiana with the two children, filed a complaint for
divorce on May 1, 2020, in Bryan County, Georgia. At the time of the
filing, the marital residence was in Bryan County, and Kristine
believed Jeffrey resided there. However, Jeffrey moved to Chatham
County shortly before Kristine filed for divorce. On July 2, 2020,
Jeffrey sold the marital residence in Bryan County, and the sale
proceeds were placed in a trust account as agreed to by the parties.
In his answer and counterclaim for divorce, Jeffrey consented
to venue and jurisdiction and admitted he was a Georgia resident
2 who resided in Bryan County within six months of the filing of the
complaint for divorce. In his counterclaim, he once again asserted
that venue was proper in Bryan County as he was a Bryan County
resident during the six-month period prior to Kristine’s filing the
complaint for divorce.
On July 13, 2020, approximately two months after she initiated
the divorce action in Georgia, Kristine initiated a child custody
action in Indiana. The parties agree that Indiana has exclusive
jurisdiction over the child custody action and all child custody and
visitation issues. The parties later participated in mediation in
Georgia in an attempt to resolve all issues relating to their divorce
and the custody of their children. They were unable to come to an
agreement. After the mediation failed, Jeffrey filed a motion to
dismiss the divorce case in Bryan County under the doctrine of
forum non conveniens pursuant to OCGA § 9-10-31.1 (a).1
1 OCGA § 9-10-31.1 provides:
(a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a
3 On December 30, 2020, the superior court granted Jeffrey’s
motion to dismiss, reasoning that all but the last of the statutory
forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors: (1) Relative ease of access to sources of proof; (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing of the premises, if viewing would be appropriate to the action; (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a plaintiff’s choice of forum. (b) A court may not dismiss a claim under this Code section until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed. 4 factors — the traditional deference given to a plaintiff’s choice of
forum — listed in OCGA § 9-10-31.1 (a) weighed in favor of
dismissal. The superior court also rejected Kristine’s arguments
that the factors listed in the statute weighed in favor of retaining
jurisdiction in Georgia and that the statute could not be
constitutionally applied in light of Article VI, Section II, Paragraph
I of the Georgia Constitution.
On January 29, 2021, Kristine timely filed an application for
discretionary appeal with the Georgia Court of Appeals. Reasoning
that the application raised a constitutional challenge to a statute,
the Court of Appeals transferred the application to this Court. See
Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1) (giving the Supreme
Court exclusive appellate jurisdiction over all cases in which the
constitutionality of a statute has been drawn into question). We
thereafter granted her application, and Kristine timely filed a notice
of appeal.
In granting the application, we posed the following questions:
(1) Does the provision of Article VI, Section II,
5 Paragraph I of the Georgia Constitution, that “[d]ivorce cases shall be tried in the county where the defendant resides,” forbid a trial court from dismissing or transferring a divorce case pursuant to OCGA § 9-10- 31.1? (2) Is the provision of Article VI, Section II, Paragraph I of the Georgia Constitution referenced above subject to waiver by a defendant filing a motion to dismiss or transfer pursuant to OCGA § 9-10-31.1? (3) Does Article VI, Section II, Paragraph VIII of the Georgia Constitution provide the trial court with the authority to transfer or dismiss a divorce case under OCGA § 9-10-31.1, when the case was originally brought in a proper forum? See EHCA Cartersville, LLC v. Turner, 280 Ga. 333, 333 (626 SE2d 482) (2006).
2. In construing these constitutional provisions and their
interplay with OCGA § 9-10-31.1, we look to our traditional canons
of constitutional and statutory construction for guidance.
We generally apply the ordinary signification to words in construing a constitutional provision. This means we afford the constitutional text its plain and ordinary meaning, view the text in the context in which it appears, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.
(Citations and punctuation omitted.) Ga. Motor Trucking Assn. v.
Ga. Dept. of Revenue, 301 Ga. 354, 356 (2) (801 SE2d 9) (2017).
“This Court must construe the Georgia Constitution to make
6 its parts harmonize and to give sensible meaning to each of them.”
Blevins v. Dade County Bd. of Tax Assessors, 288 Ga. 113, 115 (1)
(702 SE2d 145) (2010). “[I]f a statutory rule contradicts a
constitutional rule, then the constitutional rule prevails.” Carpenter
v. McMann, 304 Ga. 209, 211 (817 SE2d 686) (2018). With these
principles in mind, we turn to the questions presented in this case.
The first and third questions we posed to the parties were
designed to discern whether a trial court can transfer or dismiss a
divorce case based on a motion invoking the doctrine of forum non
conveniens under OCGA § 9-10-31.1 (a). That statute authorizes the
trial courts to take two different types of action. First, it authorizes
the transfer of venue over a case between counties of proper venue
in Georgia when the statutory factors weigh in favor of the transfer.
See OCGA § 9-10-31.1 (a) (“As to a claim or action that would be
more properly heard in a different county of proper venue within
this state, the venue shall be transferred to the appropriate
county.”). Second, the statute authorizes the dismissal of actions
when a forum outside Georgia is found to be a more convenient
7 forum based on application of the same statutory factors. See OCGA
§ 9-10-31.1 (a) (“As to a claim or action that would be more properly
heard in a forum outside this state, the court shall dismiss the claim
or action.”).
(a) The first question before us is whether the transfer
provisions of the statute can be squared with Article VI, Section II,
Paragraph I of the Georgia Constitution. That provision specifies
that
[d]ivorce cases shall be tried in the county where the defendant resides, if a resident of this state; if the defendant is not a resident of this state, then in the county in which the plaintiff resides; provided, however, a divorce case may be tried in the county of residence of the plaintiff if the defendant has moved from that same county within six months from the date of the filing of the divorce action and said county was the site of the marital domicile at the time of the separation of the parties, and provided, further, that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.
Ga. Const. of 1983, Art. VI, Sec. II, Par. I. Thus, under its plain
language, Paragraph I mandates that divorce cases be tried in the
8 specifically listed venues in this provision based on the residence of
the parties to the case. Cf. Bradley v. State, 272 Ga. 740, 742 (2) (533
SE2d 727) (2000) (interpreting Article VI, Section II, Paragraph VI,
which provides that “all criminal cases shall be tried in the county
where the crime was committed,” as a mandate).
However, this is not the end of our inquiry. As we have said
before, “the legislature has the authority to create reasonable
statutory rules concerning venue when the Constitution leaves
space to do so.” Carpenter, 304 Ga. at 211. And Article VI, Section
II, Paragraph VIII of the Georgia Constitution provides that the
“power to change the venue in civil and criminal cases shall be
vested in the superior courts to be exercised in such manner as has
been, or shall be, provided by law.” We have held that
by providing that superior courts have the power to change venue in the manner provided by law, Art. VI, Sec. II, Par. VIII plainly contemplates that, once a plaintiff has filed his or her action in an appropriate venue, the court has the authority to exercise its discretion to change the venue selected by the plaintiff if the General Assembly has enacted a statute authorizing it to do so.
Turner, 280 Ga. at 337 (2). Thus, while Paragraph I designates a
9 specific forum for filing a divorce case based on the residence of the
parties to a given case, Paragraph VIII authorizes the General
Assembly to designate by statute the conditions under which the
superior court may transfer the case to another venue in Georgia.
Accordingly, interpreting Paragraph VIII harmoniously with
Paragraph I so as “to give sensible meaning to each of them,”
Blevins, 288 Ga. at 115 (1), we hold that while venue in divorce cases
is proper in certain constitutionally designated places, the General
Assembly may statutorily authorize the superior court to change
venue in those cases.
In OCGA § 9-10-31.1 (a), the General Assembly has done just
that. The statute sets forth certain circumstances in which a party
may move the trial court to transfer to another proper venue in
Georgia by invoking the doctrine of forum non conveniens. See
OCGA § 9-10-31.1 (a). This is a valid exercise of the power granted
to the General Assembly under Paragraph VIII. Accordingly, a
superior court can transfer a divorce case to another proper venue
under the doctrine of forum non conveniens pursuant to OCGA § 9-
10 10-31.1 (a) without offending Article VI, Section II, Paragraph I of
the Georgia Constitution.
(b) The next question before us is whether the provision of this
statute authorizing the dismissal of an otherwise lawfully filed suit
is a permissible exercise of the General Assembly’s legislative
authority. We conclude that it is, but for a different reason than just
discussed.
The Constitution vests “[t]he legislative power of the state” in the General Assembly, Ga. Const. of 1983, Art. III, Sec. I, Par. I, and as we have explained, the lawmaking power of the General Assembly is “plenary.” Bryan v. Ga. Public Service Comm., 238 Ga. 572, 573 (234 SE2d 784) (1977). See also Sears v. State of Ga., 232 Ga. 547, 553-554 (3) (208 SE2d 93) (1974) (“The inherent powers of our State General Assembly are awesome . . . . [The General Assembly] is absolutely unrestricted in the power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” (Citation omitted)). For that reason, when this Court is asked to consider the constitutionality of an act of the General Assembly, we must indulge a strong presumption that it is a proper exercise of the legislative power, SEIU v. Perdue, 280 Ga. 379, 380 (628 SE2d 589) (2006), and this presumption can be overcome only by a showing of a “clear and palpable” conflict with the Constitution. Dev. Auth. of DeKalb County v. State of Ga., 286 Ga. 36, 38 (1) (684 SE2d 856) (2009).
11 DeKalb County School Dist. v. Ga. State Bd. of Ed., 294 Ga. 349, 352-
353 (1) (751 SE2d 827) (2013). See also Ga. Const. of 1983, Art. III,
Sec. VI, Par. I (“The General Assembly shall have the power to make
all laws not inconsistent with this Constitution, and not repugnant
to the Constitution of the United States, which it shall deem
necessary and proper for the welfare of the state.”).
OCGA § 9-10-31.1 (a) authorizes the dismissal of a case when
a forum outside the State is found to be more convenient based on
the application of the statutory factors. Critical to the question
before us, although Article VI, Section II, Paragraphs I and VIII
address the General Assembly’s authority to provide for where in
Georgia a divorce case can be tried, those provisions do not address
the legislature’s authority to provide for dismissal of a divorce case
in favor of a forum outside Georgia. See Holtsclaw v. Holtsclaw, 269
Ga. 163, 163-164 (496 SE2d 262) (1998) (“Because the courts of
Georgia have no inherent authority to decline to exercise the
jurisdiction otherwise granted by our constitution, the doctrine of
forum non conveniens is generally governed by statutory
12 provisions.”).2 That is, the dismissal of a divorce case under OCGA §
9-10-31.1 (a) presents the question of whether a case ought to be
tried anywhere in Georgia, which does not implicate the
constitutional venue provisions in Paragraphs I and VIII. The
parties have not pointed us to any other provision in the Georgia
Constitution limiting the General Assembly’s authority to provide
for dismissal of a divorce case based on forum non conveniens.
Where, as here, OCGA § 9-10-31.1 has not been shown to be in “clear
and palpable” conflict with the Constitution and there is no
suggestion that dismissal in favor of adjudication in a forum outside
Georgia violates due process of law or some other constitutional
right of the parties, we see no constraint in the Georgia Constitution
on the General Assembly’s power to provide trial courts with the
2 Holtsclaw held that while OCGA § 19-9-47 (a) “authorizes a court of
this state to decline to exercise its jurisdiction to make a child custody determination ‘if it finds that it is an inconvenient forum . . . under the circumstances of the case and that a court of another state is a more appropriate forum,’” that statute did not apply to divorce actions. (Citation omitted.) 269 Ga. at 164-165. But Holtsclaw was decided before the enactment of OCGA § 9-10-31.1, which applies to all civil actions. See Spies v. Carpenter, 296 Ga. 131, 133 (1) (765 SE2d 340) (2014) (noting that OCGA § 9-10-31.1 “could serve to modify the holding in Holtsclaw” where the new statute, rather than OCGA § 19-9-47, was invoked to support a forum non conveniens motion). 13 authority to dismiss a divorce suit consistent with the principles of
forum non conveniens.
Because there does not appear to be any provision of the
Georgia Constitution that bars the General Assembly from enacting
the dismissal provisions of OCGA § 9-10-31.1 (a), we hold that those
provisions are a valid exercise of the General Assembly’s plenary
legislative power under Article III, Section VI, Paragraph I of the
Georgia Constitution.3 Thus, the superior court’s application of
OCGA § 9-10-31.1 in this case did not offend Article VI, Section II,
Paragraph I of the Georgia Constitution.
(c) Though we did not pose a question to the parties about the
merits of the trial court’s ruling on Jeffrey’s motion to dismiss for
forum non conveniens, Kristine argues that he cannot move the
court to dismiss on these grounds in good faith because he chose to
sell the marital property and move out of Bryan County, and
because he asserted that venue was proper in his counterclaim.
3 We limit our analysis to the constitutional provisions addressed in this
opinion and express no opinion about whether OCGA § 9-10-31.1 (a) may offend other provisions of the Georgia Constitution. 14 Kristine further argues that the court did not require Jeffrey to
present evidence and that he failed to do so as to several of the
factors enumerated in OCGA § 9-10-31.1 (a), that the burden was
improperly shifted onto her as a result, and that the court
improperly weighed the statutory factors. We agree that the trial
court incorrectly analyzed some of the factors set forth in OCGA § 9-
10-31.1 (a).
The decision to dismiss a case properly filed in Georgia in favor
of its resolution in a foreign forum is a momentous one that requires
careful consideration in accordance with the provisions of the
statute. The burden to show the factors set forth in OCGA § 9-10-
31.1 (a) supporting a dismissal is on the moving party. See R. J.
Taylor Mem. Hosp. v. Beck, 280 Ga. 660, 662 (3) (631 SE2d 684)
(2006). The trial court’s application of the standard in OCGA § 9-10-
31.1 (a) “to the peculiar circumstances of a particular case is a
matter committed to the sound discretion of the trial court,” and our
review is for an abuse of that discretion. Wang v. Liu, 292 Ga. 568,
569 (1) (740 SE2d 136) (2013).
15 Kristine’s argument that Jeffrey cannot move to dismiss for
forum non conveniens because he chose to sell the marital property
and move and because he admitted proper venue in his counterclaim
fails. Kristine claims that the trial court should have considered
where the martial property was located at the time she filed her
divorce complaint because venue was “set” then rather than at the
time Jeffrey’s motion was filed. But a proper venue is not necessarily
the most convenient venue. Thus, the issue is not whether venue was
proper where the action was filed, but whether there is sufficient
evidence to support a conclusion that “in the interest of justice and
for the convenience of the parties and witnesses a claim or action
would be more properly heard in a forum outside this state.” OCGA
§ 9-10-31.1 (a). Accordingly, Jeffrey’s sale of the marital residence
and admission that venue was proper in Bryan County did not
preclude consideration of his motion to dismiss.
In considering the merits of the motion to dismiss, the trial
court’s order recited several undisputed facts on which the court
relied. The order then discussed each of the seven statutorily
16 enumerated factors and the facts supporting them before concluding
that dismissal was appropriate. More specifically, based on the
undisputed facts and the arguments of counsel, and in light of the
record before it, the trial court held that: (1) none of the parties or
other relevant witnesses reside in Bryan County, no marital
property exists there, and most of the proof pertaining to the case
exists in Indiana, where Kristine and the children live; (2) witnesses’
availability favored Indiana because the parties previously lived
there, the custody action was pending there, and Kristine and the
children lived there; (3) there was no premises to view in Bryan
County; (4) inadequate evidence was offered to support that
Kristine’s rights to pursue her remedy would be compromised by
transferring the case; (5) coordination of the divorce and child
custody suits presented unnecessary obstacles given the interplay
between child custody and support; (6) there was no local interest in
deciding the case because none of the parties resided in Bryan
County; and (7) Kristine was entitled to the traditional deference
given to a plaintiff’s choice of forum.
17 Kristine does not challenge the undisputed facts on which the
trial court relied in evaluating the OCGA § 9-10-31.1 (a) factors, but
argues instead that the court did not properly analyze two of the
factors and that the court improperly weighed the last factor.
Specifically, Kristine maintains that Jeffrey should have identified
and presented evidence concerning witnesses who were unwilling to
come to Bryan County and the costs associated with obtaining their
testimony with respect to the second factor, that the court
improperly shifted the burden to her as to the fourth factor when it
stated that “inadequate evidence was offered to support that
[Kristine]’s right to pursue her remedy would be compromised by
transferring the case to the Indiana Court,” and that the court did
not assign sufficient weight to her choice of forum.
In reviewing the trial court’s order with respect to each of the
seven statutory factors, we agree that the court erred in its legal
analysis of the second and fourth factors.4 And “[a] trial court abuses
4 Additionally, while the court weighed the third factor in favor of granting Jeffrey’s motion for forum non conveniens, it appears that the
18 its discretion when the exercise of discretion was infected by a
significant legal error.” Rockdale Hosp. v. Evans, 306 Ga. 847, 851
(2) (b) (834 SE2d 77) (2019).
The second factor set forth in OCGA § 9-10-31.1 (a) requires
the court to consider the “[a]vailability and cost of compulsory
process for attendance of unwilling witnesses.” (Emphasis supplied.)
However, the court’s order indicates that it instead considered the
availability of witnesses generally. Considerations of witness
convenience and efficient access to other evidence are more properly
included with respect to the first factor. In considering the second
factor, the court should determine whether any witnesses are
unwilling to voluntarily travel to Bryan County for trial (as opposed
to merely being inconvenienced by the prospect) and the cost of
compulsory process for securing any such witnesses’ attendance.
With respect to the fourth factor, the court’s order indicates
“[p]ossibility of viewing of the premises, if viewing would be appropriate to the action,” is not relevant to the case. The absence of a physical premises that may require viewing in the existing venue does not favor transfer or dismissal, but also does not provide a basis for retaining the case. Thus, this factor should be considered neutral in the forum non conveniens analysis. 19 that Kristine’s failure to offer adequate evidence that her rights to
pursue her remedy would be compromised by transferring the case
to Indiana weighed in favor of transfer. But it is Jeffrey, not
Kristine, who has the burden of showing that this fourth factor
favors dismissal. See Beck, 280 Ga. at 662 (3). Though it may often
be in the interest of the plaintiff to produce evidence with respect to
forum non conveniens factors when opposing transfer or dismissal,
the burden never leaves the moving party.
Because it did not properly consider these factors, the trial
court did not properly exercise its discretion under the forum non
conveniens statute, and we cannot definitively say how the trial
court would exercise its discretion under the correct legal analysis.
See State v. Hill, 295 Ga. 716, 718 (763 SE2d 675) (2014) (“[I]f the
trial court significantly misapplies the law or makes a clear error
with regard to a material finding of fact, the trial court’s exercise of
discretion can be upheld only if this Court can reach the conclusion
that had the trial court used the correct facts and legal analysis, it
would have had no discretion to reach a different judgment.”).
20 Therefore, we vacate the court’s judgment and remand the case for
the trial court to reconsider the factors set forth in OCGA § 9-10-
31.1 (a) in accordance with this opinion.5
(d) Because of our holding in Division 2 (a) above, we need not
address the second question posed by this Court.
Judgment vacated and case remanded with direction. All the Justices concur.
Decided March 15, 2022.
OCGA § 9-10-31.1 (a); constitutional question. Bryan Superior
Court. Before Judge Rose.
Johnson Kraeuter, K. Paul Johnson, Elizabeth E. Berenguer,
for appellant.
Oliver Maner, Andrew M. Wilkes, William C. Phillips, for
appellee.
5 Because this disposition requires the trial court to reconsider the factors and conduct the analysis required by the statute, we express no opinion with respect to Kristine’s argument that the trial court failed to give sufficient weight to her choice of venue. 21