McInerney v. McInerney, 313 Ga. 462

Background

Kristine McInerney filed for divorce in Bryan County, GA; she and Jeffrey have two minor children and reside in Indiana with the children.
Jeffrey had moved to Chatham County and sold the marital Bryan County residence shortly before Kristine sued; he later admitted he had been a Bryan County resident within six months of the filing and consented to venue in his answer/counterclaim.
Two months after Kristine filed in Georgia, she filed a child-custody action in Indiana; the parties agree Indiana has exclusive custody jurisdiction.
Jeffrey moved to dismiss (or transfer) the Georgia divorce under OCGA § 9-10-31.1(a) (forum non conveniens); the superior court granted dismissal under the statute after weighing the enumerated factors.
Kristine challenged the constitutionality and application of OCGA § 9-10-31.1(a); the Supreme Court of Georgia accepted review because the case raised a question about a statute’s constitutionality.
The Supreme Court held the statute permits transfer and dismissal consistent with the Georgia Constitution, but found the trial court misapplied two statutory factors and vacated and remanded for reconsideration.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Art. VI § II ¶ I (divorce tried where defendant resides) forbids transfer of venue under OCGA § 9-10-31.1(a)	McInerney: Constitutional venue provision prevents dismissal/transfer; case must remain in constitutionally prescribed county	Jeffrey/State: Paragraph VIII and statutes allow the General Assembly to authorize venue changes; statute valid	Transfer: Paragraph VIII authorizes the General Assembly to permit superior courts to transfer divorce cases under OCGA § 9-10-31.1(a) without violating Paragraph I
Whether dismissal in favor of an out-of-state forum under OCGA § 9-10-31.1(a) is barred by the Constitution	McInerney: Dismissal of a constitutionally filed divorce suit is impermissible	Jeffrey/State: Dismissal is a legislative exercise of plenary power and not constrained by venue provisions	Dismissal: Valid exercise of the General Assembly’s legislative power (Art. III); Paragraphs I and VIII do not prohibit dismissal under § 9-10-31.1(a)
Whether Jeffrey waived the right to move for forum non conveniens by selling property, moving, and admitting venue in his counterclaim	McInerney: His actions preclude a good-faith forum non conveniens motion; he also bore burden to present evidence	Jeffrey: Sale/move and admission of proper venue do not foreclose a forum non conveniens motion; moving party bears burden to show factors favor dismissal	Waiver: No automatic waiver; sale/move and venue admission do not preclude the motion; moving party must prove statutory factors
Whether the trial court properly applied OCGA § 9-10-31.1(a) factors	McInerney: Court misallocated burdens, failed to require evidence of unwilling witnesses, and undervalued plaintiff’s choice of forum	Jeffrey: Court’s factual findings supported dismissal	Held: Trial court misapplied the second (unwilling witnesses/compulsory process) and fourth (burden to show prejudice to plaintiff) factors; judgment vacated and remanded for correct legal analysis and discretionary reconsideration

Key Cases Cited

EHCA Cartersville, LLC v. Turner, 280 Ga. 333 (recognizing legislature may authorize superior courts to change venue under Art. VI § II ¶ VIII)
Holtsclaw v. Holtsclaw, 269 Ga. 163 (discussing forum non conveniens in custody/divorce context prior to OCGA § 9-10-31.1)
R.J. Taylor Mem. Hosp., Inc. v. Beck, 280 Ga. 660 (moving party bears burden to establish forum non conveniens factors)
Carpenter v. McMann, 304 Ga. 209 (legislature may create reasonable venue rules where constitution leaves space)
Georgia Motor Trucking Assn. v. Georgia Dept. of Revenue, 301 Ga. 354 (textual and contextual rules of constitutional/statutory construction)
Wang v. Liu, 292 Ga. 568 (forum non conveniens determinations reviewed for abuse of discretion)