Thorpe v. Thorpe

Hines, Justice.

Charles Thorpe appeals the court’s denial of his motion to set •aside a judgment that granted Latashi Thorpe a total divorce and full custody of the couple’s minor child. Mr. Thorpe contends the court should have set aside the judgment because service by publication was not justified, venue was improper, and the child custody award did not consider the child’s best interests. We need only address venue.

On August 8, 1996, Ms. Thorpe filed a “Petition for Divorce by Publication” in the Superior Court of Wilkinson County. She was then a resident of Wilkinson County and Mr. Thorpe resided in Fulton County with the child at an address unknown to Ms. Thorpe. Her petition stated she was a resident of Wilkinson County and that Mr. Thorpe resided “somewhere in the City of Atlanta.” Her accompanying affidavit showed he was a student at Georgia Tech.

The couple had lived together in the City of Atlanta, Fulton County, from 1992 to June 1994, when Ms. Thorpe moved to Wilkinson County with the child. They had also shared an Atlanta post office box that Mr. Thorpe maintained continuously after Ms. Thorpe’s departure. In May 1995, Mr. Thorpe moved to another Atlanta address. On March 15, 1996, he moved again, to an apartment outside the City of Atlanta but in Fulton County. He has been enrolled at Georgia Tech at all times since the couple moved to Atlanta in 1992, and is a graduate teaching assistant there.

In July 1996, Mr. Thorpe requested and received an extended visit with the child. Mr. Thorpe offered to let Ms. Thorpe see his apartment before this visit but she did not do so. He did not give her the apartment’s address but she did have the telephone number. As late as August 1, Ms. Thorpe made a number of calls to Mr. Thorpe’s home that were answered by an answering machine; she did not request Mr. Thorpe’s address or inform him she was considering filing for divorce. A few days later he changed his home phone number to an unlisted number. He maintained contact with Ms. Thorpe’s parents via collect calls made from pay phones but was not informed of any pending suit. The child was enrolled at a Fulton County elementary school and Mr. Thorpe provided the school with his home address and telephone number. The Fulton County school also obtained records from the child’s prior Wilkinson County school, which informed Ms. Thorpe where the records had been forwarded.

Ms. Thorpe’s petition for divorce by publication did not state venue was proper in Wilkinson County and did not suggest that service might be perfected at Georgia Tech. She averred she had attempted to gain Mr. Thorpe’s home address from the enrollment *725division of Georgia Tech and had contacted Mr. Thorpe’s parents, but neither contact produced the address. At the hearing on the motion to set aside, she also stated she telephoned the child’s new elementary school but it would not supply the address. In support of her petition and request for child custody and support, she included a December 1993 child support consent judgment from the Fulton County Superior Court in which defendant Mr. Thorpe was ordered to pay a certain monthly sum for child support.

Service by publication proceeded; no personal or mail service was attempted. On October 21, 1996, the trial court declared that service by publication had been perfected and entered a final judgment and decree granting the requests for divorce, custody of the child, and child support. Later that day, Ms. Thorpe appeared in person at the child’s elementary school and obtained Mr. Thorpe’s home address. Mr. Thorpe then learned of the suit. Within a few days, Ms. Thorpe also caused Mr. Thorpe to be served with an arrest warrant for interference with child custody while he was on the Georgia Tech campus.

Mr. Thorpe argued in his motion to set aside the judgment, and again at the hearing on the motion, that venue in the Superior Court of Wilkinson County was improper because of his Fulton County residence. The court’s order denying the motion is silent on the matter, addressing only the issue of whether Ms. Thorpe’s attempts to locate Mr. Thorpe before seeking service by publication showed due diligence on her part. See OCGA § 9-11-4 (e) (1) (A).

The Georgia Constitution, Art. VI, Sec. II, Par. I, fixes venue in divorce cases.

Divorce 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.

Ms. Thorpe’s “Petition for Divorce by Publication” does not assert that venue is proper in Wilkinson County, nor does it assert facts *726that would support a finding of proper venue. No evidence was introduced in response to the motion to set aside to show venue was proper in Wilkinson County. The court did not make any finding about venue, nor is there any evidence that would support a finding that venue was proper in Wilkinson County based on defendant’s residence. Compare Smith v. Smith, 248 Ga. 268 (1) (282 SE2d 324) (1981); Smith v. Wood, 174 Ga. App. 799, 800 (2) (331 SE2d 636) (1985). It is undisputed that Mr. Thorpe had been a resident of Fulton County since 1992, that until June 1994 Ms. Thorpe lived there with him, and that the last residential address which Ms. Thorpe knew for Mr. Thorpe was in Fulton County.

The Constitution provides for venue in the plaintiff’s county only in certain circumstances, and this is not one of them. Mr. Thorpe was a resident of this state, as Ms. Thorpe conceded in her initial pleading, and the provision allowing for venue in plaintiff’s county when the defendant is a nonresident does not apply. Nor had Mr. Thorpe moved from Wilkinson County in the six months prior to suit. Nothing in Art. VI, Sec. II, Par. I fixes venue in the Superior Court of Wilkinson County.

Ms. Thorpe contends OCGA § 9-11-4 (e) (1) (A) provides for venue in Wilkinson County because it allows for service by publication when the defendant “conceals himself to avoid the service of the summons.”1 This Code section, however, does not purport to establish venue in any county other than that established by the Constitution. It merely provides an alternative means of service in a proper case.

Ms. Thorpe also argues that under Melton v. Johnson, 242 Ga. 400 (249 SE2d 82) (1978), venue is proper in the county of her residence. However, that case presented no question of venue, only whether service by publication was appropriate. Venue in Melton was proper as in the county of the defendant’s residence. Id. at 401.

A judgment of divorce in which venue is improper is void. Herring v. Herring, 246 Ga. 462 (271 SE2d 857) (1980). Inasmuch as venue was not in Wilkinson County the judgment is void, as is the court’s order declaring service to be perfected. The court must set aside the judgment and transfer the case to a court having jurisdiction. See Dean v. Schreeder, Wheeler & Flint, 222 Ga. App. 426, 430 (2) (474 SE2d 648) (1996).

Judgment reversed and remanded with direction.

All the Justices concur, except Benham, C. J, who dissents.

It should be noted that the “Petition for Divorce by Publication” served as both complaint and request for service by publication, and was filed before any attempt at service was made.