Eversole v. Eversole

2017 Ga. LEXIS 87

February 27, 2017

Husband and Wife had lived together in Georgia during the marriage, until Husband moved to South Carolina. Within six months of Husband’s move, Wife filed for divorce in Georgia, alleging that personal jurisdiction was proper under the Georgia Long Arm Statute. After several failed attempts at personal service, the trial court granted Wife’s motion to serve Husband by publication. Husband did not file an answer or appear for the final hearing.

After the final hearing, but before the entry of the final order, Husband filed an answer wherein he admitted jurisdiction was proper and made no objection as to the sufficiency of service of process. After Father filed his answer, the trial court entered the final order and back-dated it to the date of the hearing. Husband then filed a motion to set aside the final order on the grounds that service was improper and the trial court lacked personal jurisdiction over him. The trial court granted this motion in part and set aside the award of alimony, child support, and attorney fees, finding that it lacked personal jurisdiction to make those awards. Wife appealed.

As to the issue of personal jurisdiction under the long-arm statute, the Supreme Court found that the trial court had erred in concluding that service by publication would not confer personal jurisdiction under the Long Arm Statute, which permits the court to “exercise personal jurisdiction over any nonresident, in the same manner as If he were a resident of the state.”

With regard to the sufficiency of service, the Supreme Court found that Husband had waived this argument in filing his answer without raising an objection to the sufficiency of service. The trial court, because it had back-dated its final order to a date prior to the filing of Husband’s answer, disregarded Husband’s admissions in his answer. The Supreme Court found this to be error, stating “[w]hile a back-dated order may be used in a divorce action to perfect the record… the entry of such an order does not require or even permit a court to ignore admissions or waiver, at least jurisdictional ones, made in a pleading filed by a party to the action prior to the actual date the final order was executed.”