Divorce by publication, property issues: jurisdiction

1.     Gholston v. Gholston, 31 Ga. 625, (1860):   Where a citizen of this State files a libel for divorce against a nonresident defendant, service may be made by publication;  and if the defendant appears by attorney and without pleading to the jurisdiction of the Court, files a plea of the general issue, and a special plea to the merits, the jurisdiction of the Court is complete, and the judgment will be valid and binding to all intents and purposes whatsoever.

2.     Bender v. Bender, 98 Ga. 717, 25 S.E. 924 (1896)  : While service by publication in a divorce proceeding is sufficient to give the court jurisdiction to authorize a decree for divorce, it is insufficient so far as to authorize also a decree for alimony.

3.     Griffin v. Griffin, 130 Ga. 527 61 S.E. 16 (1908)  : A judgment in personam for temporary alimony and attorneys' fees cannot be lawfully rendered in a divorce suit brought against a nonresident defendant not served with process within the state, and who does not appear, but is only constructively served by publication.

4.     Axtell v. Axtell, 181 Ga. 24, 181 S.E. 295 (1935)Statute authorizing service on nonresident by publication, as applied to proceeding to set aside divorce decree rendered in same court, held not unconstitutional, since proceeding to set aside divorce decree was proceeding in rem.  Code 1933, § 81-204;  Const. Ga. art. 1, § 1, par. 3;  Const. U.S. Amend. 14, § 1.

5.     Grimmet v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937)where the husband is a non-resident, served by publication, the court, having jurisdiction of the residence of the marriage relation, may render a valid decree of divorce; and under its additional powers given by the statutes, having incidental equity jurisdiction over the residence of the property within its territory, it may render a valid Judgment or decree in rem with respect to such property where necessary to enforce the wife’s claim to permanent alimony (only three pages of this case are in folder, attached to copy of OCGA § 19-5-13)

6.     Reynolds v. Reynolds, 218 Ga. 99, 126 S.E.2d 671 (1962)  : Where alimony judgment was obtained in rem against realty of non-resident husband, and service was perfected by publication, and divorce petition specifically prayed for judgment against property, judgment was conclusive upon husband and he could not thereafter urge its invalidity on grounds of lack of personal service and seizure in response to application for disbursement of funds held in registry of superior court from condemnation proceedings. Code, §§ 36-1104 et seq., 110-502.

7.     Fambrough v. Cannon, 221 Ga. 289, 144 S.E.2d 335 (1965)  : Where evidence showed that newspaper containing notice of pendency of divorce action was not filed and mailed within 15 days after order authorizing service by publication was granted and showed that service was not waived by appearance, pleading or otherwise by plaintiff, divorce decree granted after such service was null and void.  Code, § 81-207.2.

8.     Daniel v. Daniel, 222 Ga. 861, 152 S.E.2d 873 (1967)  : Where substituted service in Nevada divorce action was accomplished by publication and mailing of a copy of process to nonresident wife, and having a private individual hand a copy to the wife, there was such total lack of personal service that wife's rights could not be constitutionally adjudicated by Nevada court.

9.     Chafin v. Burroughs, 224 Ga. 774, 164 S.E.2d 826(1968) :Service by publication may be had in divorce cases where residence of nonresident defendant is known or unknown, but in event address of nonresident defendant is known, copy of notice must be mailed to him.  Code, §§ 81-207 to 81-207.2.

10.    McCarthy v. McCarthy, 225 Ga. 326, 168 S.E.2d 164 (1969)  : Nevada divorce decree obtained after service by publication upon nonresident spouse whose address was unknown must be given full faith and credit in Georgia courts unless otherwise void for fraud in its procurement.  NRCP 4(e) (iii);  U.S.C.A.Const. art. 4.

11.    Hicks v. Hicks, 227 Ga. 58, 178 S.E.2d 899(1970) :Allegations of husband's divorce and custody complaint together with attached affidavit that wife was concealing herself to avoid service of summons and was either "residing or temporarily sojourning" at specified address in Columbus were sufficient to authorize service of summons by publication where, within short period of time, wife had been in parties' home in Macon, had then gone to Las Vegas, and then to Columbus.  Code, § 81A-104(e) (1) (i).

12.    Eddings v. Eddings, 230 Ga. 743, 199 S.E.2d 255(1973) :Court in which divorce decree was entered had jurisdiction of equitable complaint brought by husband against wife seeking to set aside judgment and decree for divorce, alimony and child support, even though wife was not a resident and had to be served by publication.

13.    Schlicht v. Bincer, 230 Ga. 745, 199 S.E.2d 245 (1973)  :Court in which divorce decree was entered had jurisdiction of equitable complaint brought by husband against wife seeking to set aside judgment and decree for divorce, alimony and child support, even though wife was not a resident and had to be served by publication.

14.    Trulove v. Trulove, 233 Ga. 896, 213 S.E.2d 868 (1975) :Divorce decree obtained in foreign state against a resident of Georgia who was served by publication may be attacked collaterally for fraud when offered in Georgia court as a bar to resident spouse's action for divorce.

15.    Anthony v. Anthony, 237 Ga. 753, 229 S.E.2d 609 (1976)  :(1) Trial court had jurisdiction to enter in rem judgment awarding husband's real property in state as alimony to wife upon service of nonresident husband by publication. (2) A personal judgment for alimony cannot be rendered against a nonresident defendant upon service by publication.

16.    Albers v. Albers, 238 Ga. 590, 234 S.E.2d 507 (1977):In divorce action, service by publication upon defendant husband, as nonresident of state, pursuant to order of court and by mailing copy to defendant at his out-of-state address was properly perfected, and, in view of actual notice, grant of divorce was not erroneous.  Where nonresident, made special appearance in divorce case but would not submit himself personally to court's jurisdiction, no error in awarding his property, in custody of court-appointed receiver, as permanent alimony.

17.    Bodrey v. Bodrey, 246 Ga. 122, 269 S.E.2d 14 (1980) : Mississippi court could not obtain personal jurisdiction over nonresident former wife, who neither consented nor subjected herself to jurisdiction in Mississippi court, by service by publication and therefore modification order obtained by a former husband, which eliminated his alimony obligations, was not entitled to full faith and credit in Georgia court.  Code Miss.1972, §§ 13-3- 19, 93-5-23;  U.S.C.A.Const. Art. 4, § 1.

18.    Veazey v. Veazey, 246 Ga. 376, 271 S.E.2d 449(1980) :Personal judgment for alimony cannot be rendered against a nonresident defendant upon service by publication.

19.    Osgood v. Dent, 167 Ga.App. 406, 306 S.E.2d 698 (1983)  :Wife's mere cursory notice to husband over telephone about existence of divorce suit she was bringing failed to rise above level of casual information and rumor, and could not serve to cure service on husband by publication which was defective for wife's failure to exercise reasonable diligence in seeking her husband's whereabouts.

20.    Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983)  :

a.    Although distinction between in rem and in personam divorce proceedings may be factor in determination of trial court's territorial jurisdiction, it is inapposite in determining if party may resort to notice by publication;  in latter inquiry, regardless of whether proceeding is in rem or in personam, due process requires that chosen method of service be reasonably certain to give actual notice of pendency of proceeding to those parties whose liberty or property interests may be adversely affected by proceeding.  U.S.C.A. Const.Amends. 5, 14.

b.    Where wife did not pursue obvious channels of information to determine her husband's present location based on her knowledge of his background, and in fact did nothing to seek out husband in order to serve him in her divorce action, wife, as matter of law, was not reasonably diligent in seeking husband's whereabouts, and thus, trial court erred in authorizing service by publication.

21.    Lee v. Pace, 252 Ga. 546, 315 S.E.2d 417 (1984): Former husband, a nonresident, was properly served by publication combined with mailing of notice and complaint by certified mail by former wife who brought action to obtain custody, child support, and payment of certain medical bills for children.  O.C.G.A. § 9-11-4(e)(1)(A, C).

22.    Marbury v. Marbury, 256 Ga. 651, 352 S.E.2d 564 (1987)(in jurisdiction and venue file): where personal service is possible, service by publication is adequate to notify Defendant of pendency of lawsuit only where Plaintiff is able to show that Defendant received actual notice, or that he expressly or impliedly waived right to notice. O.C.G.A. §9-11-4(e).  Service by publication and by regular mail was sufficient to notify non-resident Defendant of pendency of divorce action, were Defendant admitted that he had received a copy of the summons and complaint.

23.    McDonogh v. O'Connor, 260 Ga. 849 400 S.E.2d 310 (1991) AND Robinson v. Robinson, 260 Ga. 731, 399 S.E.2d 64 (1991) : Where wife sought to set aside divorce on ground that husband knew where wife lived at time divorce was filed but nonetheless served divorce complaint by publication, court committed reversible error by denying motion without considering issue of husband's due diligence in seeking to locate wife.

24.    Murphy v. Murphy, 263 Ga. 280, 430 S.E.2d 749 (1993) :Personal jurisdiction was improperly exercised over nonresident wife, based upon service by publication, where there was no showing that wife had received, or waived receipt of, actual notice of lawsuit, or that reasonable diligence had been exercised in attempting to find her;  there was evidence that wife's telephone number had not changed, even though she had moved from her out-of- state address.

25.    Southworth v. Southworth, 265 Ga. 671, 461 S.E.2d 215 (1995)(in separate maintenance file):Although trial court had personal jurisdiction over wife regarding husband's original claim for separate maintenance, trial court lacked personal jurisdiction over wife regarding amendment to complaint which added claim for divorce, since amendment was actually new cause of action which would obviate original claim and husband's attempt to serve wife by mail pursuant to amendment statute's service provisions was insufficient;  husband, who knew wife moved out of state, was required to apprise wife of divorce action by personal service if he knew of her out-of-state address, or by publication in accordance with long arm statute.  O.C.G.A. §§ 9-11-4(e)(1, 2), 9-11-5(a, b), 19-6-10.

26.    Crenshaw v. Crenshaw, 267 Ga. 20, 471 S.E.2d 845 (1996):  (in Bolden file) Notice by publication was not reasonably designed to insure that wife, proceeding pro se in divorce action, had notice of trial date and, therefore, was inadequate to meet due process requirements; trial court had wife's current mailing address, knew that wife was proceeding pro se and that she had been informed by her former counsel upon his withdrawal that services of notices would be made upon her at her last known address and because neither party sought summary judgment, trial was required to resolve disputed issues involving couple's minor child.  U.S.C.A. Const.Amend. 14.

27.    Bailey v. Bailey, 266 Ga. 832, 471 S.E.2d 213 (1996) : Notice by publication was not reasonably designed to insure that wife, proceeding pro se in divorce action, had notice of trial date and, therefore, was inadequate to meet due process requirements; trial court had wife's current mailing address, knew that wife was proceeding pro se and that she had been informed by her former counsel upon his withdrawal that services of notices would be made upon her at her last known address and because neither party sought summary judgment, trial was required to resolve disputed issues involving couple's minor child.  U.S.C.A. Const.Amend. 14.

28.    Steele v. Steele, 203 Ga. 505,46 S.E.2d 924 (1948)  : If plaintiff in a divorce action knows the residence and address of nonresident defendant but wilfully and fraudulently fails to comply with provisions of Code section in regard to filing a copy of newspaper in cases of service by publication, and fraudulently procures an order showing service by publication, divorce decree may be set aside as void.  Ga.Code Ann. § 81-207.

29.    Abernathy v. Abernathy, 267 Ga. 815, 482 S.E.2d 265 (1997) :Trial court had jurisdiction to grant divorce based on service by publication.

30.    Ford v. Ford, 270 Ga. 314, 509 S.E.2d 612 (1999)   Service by publication in divorce action violated nonresident wife's due process rights, as husband did not use reasonably diligent and honest efforts to find wife; husband could have contacted wife's Missouri attorney or wife's parents, and husband could have directed mail to former marital address, but instead, he averred only that wife's last known address was "General Delivery, Kansas."  U.S.C.A. Const.Amend. 14;  Const. Art. 1, § 1, Par. 1.