Eversole v. EversoleAnnotate this Case
In January 2015, Janice Eversole filed a divorce action against Jay Eversole seeking, among other things, an award of alimony, child custody, and child support. Wife alleged Husband had left the marital home in Georgia less than six months prior to the filing of the complaint and was living at a stated address in South Carolina. With respect to personal jurisdiction over Husband for the award of alimony and child support, Wife alleged Husband was subject to the jurisdiction of the court pursuant to the Georgia Long Arm Statute (OCGA 9-10-91 (5)). When Wife was unable to perfect personal service on Husband, the trial court granted her motion for service by publication. Husband failed to file a timely answer, and a hearing in the matter was conducted at which Husband failed to appear. After the hearing but before the trial court entered an order granting the divorce and other relief sought by Wife, Husband filed a late answer in which he admitted jurisdiction as pleaded in the complaint and admitted the marriage was irretrievably broken. He raised no objection to sufficiency of service. Husband denied other allegations of the complaint and sought custody of the parties’ minor child, along with an award of child support, and sought alimony from Wife. Nevertheless, the trial court entered the final judgment and decree of divorce which it dated nunc pro tunc to July 13, 2015, the date the hearing was conducted. In the order, the trial court awarded child custody to Wife, and also awarded, among other things, child support, alimony, and attorney fees and costs. Husband then filed a motion to set aside the judgment on two grounds: (1) that although he was served by publication he never received personal service or service by mail, and (2) that the trial court lacked personal jurisdiction because he was a resident of South Carolina. The trial court granted Husband’s motion in part and set aside its award of alimony, child support, and attorney fees and costs because it found it lacked personal jurisdiction over Husband to make these awards. The trial court did not set aside the grant of divorce, the division of personal property located in Georgia, the award of real property located in Georgia, or the child custody award, since it concluded personal jurisdiction was not required for those decisions. Wife filed an application for discretionary appeal which the Georgia Supreme Court granted. The Supreme Court found final judgment in this case had not been executed or entered at the time Husband filed his responsive pleading, even though the judgment was later executed and back-dated. The trial court erred in granting, part, Husband’s motion to set aside because he was bound by his admission of jurisdiction and waiver of the defense of insufficiency of service. Because the Supreme Court reversed in part the order granting Husband’s motion to set aside the divorce judgment, Wife’s remaining enumerations of error were moot and need not be addressed.