Guerrero v. GuerreroAnnotate this Case
Husband and wife were married in July 2003. Together they had four children, all of whom were minors and resided with their mother in Georgia. In May 2012, wife filed a complaint for divorce alleging that husband was a resident of the State of California and had moved from the marital residence in Butts County within the six months preceding the filing of the divorce action, thus subjecting husband to the jurisdiction and venue of the Butts County Superior Court. She also averred that husband could be personally served at a specific address in California. In order to serve the summons and complaint, wife retained a private legal service company which attempted on several occasions to personally serve husband at the California address. After several failed attempts at personal service, a process server returned an affidavit of service indicating he served husband by substitute service at the California address by leaving the complaint “with or in the presence of: Maria Schiemm, Occupant” who was a “[p]erson of suitable age and discretion.” A final hearing was scheduled for December 3, 2012, but no notice of the hearing was provided to husband because of his failure to file responsive pleadings. Husband did not appear at the hearing, and the following day, the trial court entered a final decree granting a divorce and awarding wife sole physical and legal custody of the minor children, in addition to child support. Husband was awarded visitation with the children at such times and dates as agreed by the parties. Upon learning that a final judgment had been entered, husband hired counsel and filed a motion for new trial asserting, among other things, that he had not been properly served. In support of his motion, husband presented the affidavit of his California landlord, Janice Graber, in which Graber stated that the prior tenant of the California property was a woman named
Marianne Schenk. Graber speculated that the process server had misspelled Marianne Schenk’s name by spelling it “Maria Schiemm.” Husband submitted no other evidence to support his claim of improper service, although he argued in his brief and through counsel that Maria Schiemm did not reside at his residence and he did not know who she was. The trial court rejected husband’s claim of improper service and denied the motion for new trial. The Georgia Supreme Court granted Husband's discretionary application under Rule 34 (4) to determine whether the trial court erred in its denial of a motion for new trial in this divorce and child support action. After reviewing the record, the Georgia Court found that husband was not properly served with the summons and complaint, and therefore, reversed the trial court’s order denying husband’s motion for new trial.