In the Supreme Court of Georgia
Decided: November 3, 2014
S14A1565. SPIES v. CARPENTER.
THOMPSON, Chief Justice.
James Spies (“husband”) and Cynthia Carpenter (“wife”) were married in
California on December 17, 2000. They have two minor children, both of whom
were born in that state. Husband is a movie and television producer and a
consultant. The family moved to Tennessee for a film project in 2006, and then
to the metropolitan Atlanta area in November of 2011. The parties separated on
August 6, 2013. Wife returned to California with the children and enrolled them
in school. In the meantime, husband relocated to Virginia for another film
project.
On October 17, 2013, wife filed suit in Superior Court of California for
legal separation from husband, and he was personally served in Virginia.
Thereafter, November 21, 2013, the California court entered an order
temporarily awarding wife sole custody of the children. That same day, husband
filed a petition for divorce in Fulton County Superior Court, in which he
requested, among other things, primary child custody. Wife entered a special
appearance and moved to dismiss husband’s petition on the ground that, inter
alia, the trial court is an inconvenient forum under OCGA § 19-9-67 of the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
On February 21, 2014, after consulting with the California court pursuant
to the UCCJEA, the Fulton County trial court granted wife’s motion and
dismissed husband’s entire case on the basis of forum non-conveniens. We
granted husband’s application for a discretionary appeal and posed this question:
Did the trial court err in dismissing husband’s entire divorce petition under
OCGA § 19-9-67 (a), instead of dismissing only the child custody portion of the
case? See Holtsclaw v. Holtsclaw, 269 Ga. 163, 163-164 (496 SE2d 262)
(1998); OCGA § 19-9-67 (d); OCGA § 9-10-31.1 (effective February 16, 2005).
We answer this question affirmatively.
1. In Holtsclaw v. Holtsclaw, supra, husband and wife moved to Georgia
in August 1996. Wife moved to Mississippi two months later. In February
1997, husband filed suit in Georgia seeking a divorce and custody of the parties’
minor child. Wife filed a “motion to dismiss complaint and inconvenient
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forum” in which she asserted that the child lived with her in Mississippi until
February 1997; that she then permitted husband to take the child to Georgia for
a brief visit; but that he refused to return the child to her in Mississippi. The
trial court entered a temporary order awarding temporary custody to wife. At
that point, wife withdrew her previous motion and moved to transfer the custody
issue to Mississippi. Finding that Georgia was an inconvenient forum and that
the child was more closely connected to Mississippi, the trial court dismissed the
custody proceedings and the divorce action, concluding that “the parties would
be better served by having all disputed issues relating to the end of their
marriage resolved in one action.” Id. at 163. Husband sought, and this Court
granted, discretionary review to decide “whether a trial court with jurisdiction
over the subject matter and the parties may dismiss a divorce petition if it
determines that it is an inconvenient forum under [former] OCGA § 19-9-47.”
Id. This Court concluded that, although the trial court had a limited grant of
authority to dismiss the custody proceeding based upon a finding that it is an
inconvenient forum, it erred in dismissing the divorce action because husband
had a state constitutional right to litigate his divorce case in the county of his
residence, and the doctrine of forum non conveniens could not be used to
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deprive husband of that right. Id. at 165.
We find Holtsclaw to be controlling authority in this case. Thus, although
the trial court was authorized to dismiss the custody portion of husband’s case
on the basis of forum non conveniens, OCGA § 19-9-67 (d), it erred in
dismissing the divorce case as well.
We recognize that our legislature enacted OCGA § 9-10-31.1 in 2005 to
enable a trial court to decline to exercise jurisdiction under the doctrine of forum
non conveniens in matters other than child custody. See generally Hawthorn
Suites Golf Resorts, LLC v. Feneck, 282 Ga. 554 (651 SE2d 664) (2007).
Arguably, this code section could serve to modify the holding in Holtsclaw to
allow a trial court to dismiss a divorce action along with a child custody
proceeding. However, it is clear that the trial court did not expressly invoke
OCGA § 9-10-31.1 to dismiss the divorce portion of the case and we find
nothing in the record showing that the trial court considered the factors
enumerated in that statute. See Wang v. Liu, 292 Ga. 568 (1) (740 SE2d 136)
(2013) (to permit meaningful appellate review of grant or denial of motion to
dismiss under the doctrine of forum non conveniens, trial court must record the
essential reasoning that forms the basis for its exercise of discretion). Because
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the trial court has not considered OCGA § 9-10-31.1 and wife has not argued its
application in this appeal, we do not presently consider its application in this
case.
Wife asserts the trial court was authorized to dismiss husband’s petition
for divorce independently because husband did not reside in Georgia for six
months prior to filing suit. See OCGA § 19-5-2; Abernathy v. Abernathy, 267
Ga. 815, 816 (482 SE2d 265) (1997) (party seeking divorce only needs to show
domicile in this state for six months before filing petition). This assertion must
fail because the trial court dismissed this action on the basis of forum non
conveniens solely pursuant to OCGA § 19-9-67 and made no findings with
respect to husband’s residency. Compare Conrad v. Conrad, 278 Ga. 107, 108
(597 SE2d 369) (2004) (dismissal of wife’s divorce petition was affirmed where
trial court found wife was not a bona fide resident for six months before the
petition was filed).
2. As to the custody portion of the case, husband contends the trial court
abused its discretion in determining that California is the more appropriate
forum. We disagree. The trial court examined all eight of the factors set forth
in OCGA § 19-9-67 (b) and declined to exercise jurisdiction because, inter alia,
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(1) the children had been living with their mother in California for more than
six months and have been attending school in that state; (2) husband was the
primary breadwinner throughout the marriage and is more able to litigate in
California than mother is able to litigate in Georgia; and (3) the California court
had already conducted two hearings and issued a child custody order, whereas
the Fulton County trial court was just becoming familiar with the case. In light
of these factors, it cannot be said the trial court abused its discretion in finding
that the custody case could be resolved more expeditiously in California. See
Odion v. Odion, 325 Ga. App. 733, 734-736 (754 SE2d 778) (2014).
Judgment affirmed in part and reversed in part. All the Justices concur.
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