McInerney v. McInerney

In the Supreme Court of Georgia

Decided: March 15, 2022

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

2
to venue and jurisdiction and admitted he was a Georgia resident

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

3
On December 30, 2020, the superior court granted Jeffrey’s

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 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 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
motion to dismiss, reasoning that all but the last of the statutory

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:

5
 (1) Does the provision of Article VI, Section II, 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) Are the provisions 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.) Georgia Motor Trucking Assn.

v. Georgia Dept. of Revenue, 301 Ga. 354, 356 (2) (801 SE2d 9) (2017).

6
 “This Court must construe the Georgia Constitution to make

its parts harmonize and to give sensible meaning to each of them.”

Blevins v. Dade Cty. 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

7
when a forum outside Georgia is found to be a more convenient

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

8
language, Paragraph I mandates that divorce cases be tried in the

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 v. McMann, 304 Ga. 209, 211 (817 SE2d

686) (2018). 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

9
 the venue selected by the plaintiff if the General
Assembly has enacted a statute authorizing it to do so.

EHCA Cartersville, LLC v. Turner, 280 Ga. 333, 337 (2) (626 SE2d

482) (2006). Thus, while Paragraph I designates a 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

10
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-

10-31.1 (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

11
 act of the General Assembly, we must indulge a strong
presumption that 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).

DeKalb County School Dist. v. Georgia State Bd. of Educ., 294 Ga.

349, 352-353 (1) (751 SE2d 827) (2013). See also Ga. Const. of 1983,

Art. III, Sec. IV, 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

12
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

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

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. 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
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

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 IV, 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

3We 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
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.

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., Inc. v. Beck, 280 Ga. 660, 662 (3) (631 SE2d 684)

(2006). The trial court’s application of the standard in OCGA § 9-10-

15
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,

569-570 (1) (740 SE2d 136) (2013).

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

16
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

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

17
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.

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

18
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

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 added.)

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

4 Additionally, while the court weighed the third factor in favor of
granting Jeffrey’s motion for forum non conveniens, it appears that the
“[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
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

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

20
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.”).

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.

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