                              FIFTH DIVISION
                             MCFADDEN, P. J.,
                          MCMILLIAN and GOSS, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     June 26, 2019




In the Court of Appeals of Georgia
 A19A0009. WERTZ v. MARSHALL.

      GOSS, Judge.

      On appeal from the denial of her motion to dismiss a father’s petition in this

custody dispute, the mother argues that the superior court erred because a Florida

court maintains jurisdiction over the petition under the Uniform Child Custody

Jurisdiction and Enforcement Act (“UCCJEA”), codified in Georgia as OCGA §

19-9-40 et seq. We disagree and therefore affirm.

      Julie Wertz and Charles Shayne Marshall were married and have two children.

In 2006, the parties divorced in Florida. The Florida court awarded Wertz physical

custody of the children. In 2012, Wertz allowed the younger child to live with

Marshall, who had moved to Georgia, and the child has lived with him ever since. In
2017, Marshall filed this petition to modify the Florida custody award, seeking sole,

permanent custody of that child.

      Wertz filed an answer in which she admitted an allegation in Marshall’s

petition that she is a resident of Colorado and that the Walker County Superior Court

had jurisdiction over the petition. At that time, Wertz’s husband, an active duty

service member, was temporarily stationed in Colorado. About six months later,

Wertz moved to dismiss Marshall’s petition under the UCCJEA.

      The trial court denied the motion to dismiss. In its order, the trial court found

that Wertz “by and through counsel filed an Answer admitting that this Court has

jurisdiction and venue to hear this case and that [Wertz] is a resident of the State of

Colorado” and that Wertz “did not timely file a motion or pleading raising the

defenses of lack of jurisdiction, improper venue, or insufficient service of process

pursuant to OCGA § 9-11-12, and consequently, such defenses are waived by law.”

The court entered a final order on Marshall’s custody modification petition, and

Wertz filed a timely notice of appeal.

      Wertz argues that the trial court erred in addressing the merits of the

modification petition because the court in Florida had exclusive jurisdiction over the

case, because that court took no action to relinquish its jurisdiction, and because

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Wertz still resides in Florida. Wertz admitted in her answer, however, that she was

a resident of Colorado, which conclusively divested the Florida court of jurisdiction.

      OCGA § 24-8-821 of the 2013 Evidence Code provides: “Without offering the

same in evidence, either party may avail himself or herself of allegations or

admissions made in the pleadings of the other.” See also former OCGA § 24-3-30

(2012); Georgia-Pacific v. Fields, 293 Ga. 499, 501 (1) (748 SE2d 407) (2013)

(“admissions or allegations appearing in the pleadings are treated as admissions in

judicio and, if not withdrawn, are conclusive of the facts contained therein”).

      As the dissent points out, this trial court was not in a position to conclude that

the mother waived the matter of the court’s own subject matter jurisdiction. It remains

true, however, that the father availed himself of the mother’s admission in her answer,

filed by counsel, that she was a Colorado resident. This was an admission of fact. See

Black’s Law Dictionary, 10th ed., 2014 (defining residence as “[t]he place where one

actually lives, as distinguished from a domicile”). Further, the dissent cites no

relevant authority for its suggestion that the answer’s unverified status has some

bearing on the status of any admissions it might have contained.

      As will often be the case, the mother later disclaimed the admission as not

actually authorized by her. But this disclaimer does not effect a withdrawal of the

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admission; on the contrary, the mother was not authorized to present any evidence on

the factual question of her residency, which was established beyond dispute, as in

Colorado rather than Florida. Nor does the record show that the mother ever amended

her answer or asked the court’s permission to withdraw the admission made therein.

It follows from the above that the trial court did not err in concluding, after a hearing

on the issue, that because the mother had admitted to residency in Colorado, the

question of subject matter jurisdiction was settled in favor of the Georgia trial court

such that the mother’s motion to dismiss the father’s petition should be denied. See

OCGA § 19-9-62 (a) (2) (a court retains jurisdiction under the UCCJEA until, among

other things, that or another court “determines that neither the child nor the child’s

parents or any person acting as a parent presently resides in [that] state”).

      Judgment affirmed. McMillian, J., concurs. McFadden, P. J. dissents.*

* THIS      OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2(a).




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 A19A0009. WERTZ v. MARSHALL.



      MCFADDEN, Presiding Judge, dissenting.

      Whether jurisdiction over this custody dispute is properly before the Florida

court in which these parties divorced turns on questions of fact. Wertz’s

acknowledgment — in an unverified answer — of her temporary residence in

Colorado arising from her husband’s military service is not dispositive. So I

respectfully dissent. I would vacate the trial court’s judgment and remand for the trial

court to address whether he could exercise jurisdiction under the UCCJEA.

      Wertz’s challenge to the Walker County Superior Court’s jurisdiction under the

UCCJEA raises the issue of jurisdiction over the subject matter, Kuriatnyk v.

Kuriatnyk, 286 Ga. 589, 590 (1) (690 SE2d 397) (2010), which cannot be waived.

Kogel v. Kogel, 337 Ga. App. 137, 140 (786 SE2d 518) (2016) (citations and

punctuation omitted; emphasis in original). So the trial court erred by denying the

motion to dismiss on the ground that Wertz waived the issue of a lack of subject

matter jurisdiction.
      We review the issue of the trial court’s subject matter jurisdiction de novo.

Delgado v. Combs, 314 Ga. App. 419, 425-426 (1) (724 SE2d 436) (2012). Wertz

argues that the trial court erred in addressing the merits of the modification petition

because the court in Florida, which has codified the UCCJEA at Fla. Stat. Ann. §

61.501 et seq., has continuing, exclusive jurisdiction over custody since it made the

initial custody determination; it took no action to relinquish its jurisdiction; and

Wertz still resides in Florida. See OCGA § 19-9-62 (a) (2) (the court of the state that

made the initial custody determination retains exclusive, continuing jurisdiction until,

among other things, “[a] court of [that] state or a court of another state determines that

neither the child nor the child’s parents or any person acting as a parent presently

resides in [that] state”); Roach v. Breeden, 333 Ga. App. 839, 842 (777 SE2d 689)

(2015). The majority would affirm the trial court’s custody ruling on the ground that

Wertz’s admission in her answer that she is a resident of Colorado conclusively

divested the Florida court of jurisdiction. But that admission alone does not satisfy

Marshall’s burden of showing that Florida has lost jurisdiction for purposes of the

UCCJEA.

      “Although there is no [Georgia] case on point, cases from other jurisdictions

strongly suggest that more than a perfunctory determination of residence is required


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to divest an issuing state of jurisdiction” under the UCCJEA. Brandt v. Brandt, 268

P3d 406, 412 (II) (B) (4) (¶ 29) (Colo. 2012). See also Delgado v. Combs, 314 Ga.

App. 419, 425 (724 SE2d 436) (2012) (adopting Brandt’s holding regarding the

petitioner’s burden and stating “[i]n applying and construing the provisions of the

UCCJEA as codified in Georgia, we must consider the need to promote uniformity

of the law with respect to its subject matter among states that enact it. In accord with

this mandate—and given the relative dearth of Georgia law on this subject—we will

look to the cases of other jurisdictions when appropriate to resolve the issues in [this]

case. . . .”) (citation and punctuation omitted).

      “‘[P]resently reside’ [as used in OCGA § 19-9-62 (a) (2) of the UCCJEA]

necessitates a broader inquiry into the totality of the circumstances that make up

domicile — that is, a person’s permanent home to which he or she intends to return

to and remain. Black’s Law Dictionary at 558 (9th ed. 2009).” Brandt, supra, 268 P3d

at 415 (II) (B) (5) (¶ 43); Gustafson v. Gustafson, 413 P3d 808 (Kan. Ct. App. 2018)

(unpublished) (same). Our courts have approved such inquires into residency in other

contexts. See Dozier v. Baker, 283 Ga. 543 (661 SE2d 543) (2008) (considering

evidence, including intent, to determine whether candidate had established legal

residence for purposes of election law); Conrad v. Conrad, 278 Ga. 107, 108 (597


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SE2d 369) (2004) (in divorce action, holding that the trial court properly considered

the evidence on the issue of residence and that “[i]t requires both act and intent to

establish a residence, and either without the other is insufficient.”) (citation and

punctuation omitted);Webb v. Oliver, 133 Ga. App. 555, 557-558 (4) (211 SE2d 605)

(1974) (holding in case under Georgia Nonresident Motorist Act that “a person could

have more than one residence;” that residence is a question of intention; and that

evidence showed party established a legal residence in Georgia).

      Standing alone, Wertz’s admission in her answer that she resides in Colorado

does not satisfy Marshall’s burden of showing that Florida has lost jurisdiction for

purposes of the UCCJEA. “[T]he crucial question under the statute is not whether

[Wertz] ‘resided’ in [Colorado], but whether [s]he stopped residing in [Florida],”

something the court did not determine. In re Marriage of Nurie, 176 Cal. App. 4th

478, 499 (III) (B) (2009). Such a determination is particularly important given that

a person may have more than one residence, Webb, 133 Ga. App. at 557-558 (4); In

re Marriage of Nurie, 176 Cal. App. 4th at 500 (III) (B), and that where Wertz lives

is related to her husband’s military service. See generally Gen. Motors Acceptance

Corp. v. Monday, 79 Ga. App. 609 (3) (54 SE2d 479) (1949) (“The place where a

person engaged in the military service of this country is stationed is not necessarily


                                          4
his residence, since residence is controlled by the intention of such person, rather than

the intention of the military authorities.”) (citations omitted).

      For these reasons, I would vacate the trial court’s order and remand for the

court to consider all relevant factors and determine whether he could exercise

jurisdiction under the UCCJEA.




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