*1 navigable meaning not thus a stream within federal law.2 deciding navigability Moreover, without whether the definition of set (a),3 by by necessary express § forth in OCGA 44-8-5 its terms or implication, change a effected in the common law definition navi- gability,4 supports we conclude that the record a determination that portion navigable of Armuchee Creek issue in this case is not a (a) Finally, stream under the common law.5 we conclude public acquired right passage a on Armuchee by prescription p. Creek either or under 1830, Section 17 of Ga. L. foregoing For reasons, 127. we affirm.
Judgment All the Justices concur. affirmed. 10, 1997 Decided March April 4, 1997.
Reconsideration denied Connelly, Bobby Cook, Johnson, Paul, Cook & Lee Todd M. Has- tings, Janofsky Neely Craig Pendergrast, Walker, III, & John J. K. for appellants. appellee. Farrar, Farrar, Farrar Jr., & Archibald A. Attorney Bomar, Robert S. General, Senior Assistant & Groover Childs, Groover, Jr., Childs, Denmark Jr., Hulbert, Frank Walker, H.
Gray Byrd, Gray, Walker, & Lawrence C. Michael G. amici curiae. S96A1770. ABERNATHYv. ABERNATHY. (482 265) Justice. Carley, Denny Abernathy
Elizabeth Susan John Michael were mar- separation. ried in Florida and resided in Louisiana until their Abernathy Georgia year Thereafter, Mr. and, later, moved about brought against Denny. complaint, he this divorce action Ms. In his Abernathy requested only that he be awarded total divorce Denny from Ms. and that located in be awarded (8th States, 235, North Dakota United F2d Cir. United States a Holt 465) Bank, (1926); Leovy States, State S. 270 U. 54-56 70 LE v. United 177 U. 513, Waters, S. 44 LE 78 AmJur2d § 69. “navigable That capable Code section defines a stream” as “a stream which is of trans porting freight regular part boats loaded with in the course trade either for the or a whole year. rafting transporting The mere of timber or the of wood in shall small boats navigable.” make a stream “4 ‘(S)tatutes change beyond are not to effect a understood in the common law ” clearly by express Avnet, necessary implication.’ which is Wyle indicated terms or Inc. v. Labs, Professor Farnham of Yale Law School has adopted navigability written that and several other states have statutes that are Farnham, Rights, 23g “limitations of the common law rule.” Water and Water 1See Farnham at 23.§ raising of lack of an answer the defense filed to him. After Ms. determine filed a “motion to special appearing defendant.” dismiss defenses and/or hearing Mr. motion and on trial court conducted marriage “jurisdiction rela- res concluded that it had [the] respect tionship” “in *2 court order for imme- The trial certified its
located within this State.” Denny’s granted application for an interloc- we Ms. diate review and utory appeal. Denny ruling that it court erred in has
Ms.
insists that the trial
personal jurisdiction
However,
court never ruled
her.
the trial
over
Denny.
jurisdiction
personal
Instead, the trial
over Ms.
that it has
marriage
jurisdiction
only
of the
over the res
court ruled
has
jurisdiction
and in rem
the issue
divorce
so as
determine
state so
to determine the issue
marital
located
this
as
the
property. Accordingly, if
court has
the trial
of the division of that
Georgia,
marriage
jurisdiction
marital
over the
the
per-
regard
lack of
was correct without
trial court’s
the order
Denny
jurisdiction over Ms.
herself.
sonal
jurisdiction
prerequisite
a
over the defendant is not
Personal
by
grant
Charamond,
a
a
court. Charamond v.
of divorce
(239
(2)
362) (1977).
seeking
party
a
34, 35
SE2d
The
divorce
240 Ga.
only
jurisdiction
has
of the
that the trial court
over the res
need show
marriage
results from his or her domicile in this state for the
which
filing
period preceding
§ 19-5-2;
six-month
Charamond
of the action. OCGA
supra;
Abou-Issa, 229 Ga.
Charamond,
v.
Abou-Issa v.
(189
(1972).
443)
77-78
SE2d
[E]ach of its command over its domiciliaries
virtue
large
marriage,
institution of
can
and its
alter within its own borders the
spouse
absent.
interest
marriage
status of
though
spouse
there,
the other
domiciled
even
(63
207, LE
Carolina,
Williams v.North
(1) (a) (335
865)
279) (1942);
Page,
Page
v.
SE2d
Ga.
spouse
granted
“[T]he
one
in one state will bind the
divorce
spouse
requirements
procedural
if
other
in his or her domicile the
(a).
Page
process
Page, supra at 146
are met.”
v.
due
Long
Accordingly, any
upon
Arm Statute in
reliance
statute deals
with the exercise
case is erroneous because that
Long
personal jurisdiction
over nonresidents. OCGA 9-10-91.
every
apply
is a
case which the defendant
Arm Statute does not
jurisdiction
applies only
personal
in cases in which
nonresident. It
Accordingly,
required.
compliance
the nonresident defendant is
Long
case if
Arm
would be mandated in this
with
trial
Statute
Denny
necessary
personal jurisdiction
to its
court’s
over Ms.
Abernathy’s
against
adjudication
However,
of Mr.
claims
her.
required
personal
trial court was not
to have
over Ms.
Denny
adjudicate
Mr.
order to
claim for divorce. After
proper
publication,
obtained
service
the clerk of
copy
published
Denny.
the trial
mailed
court
a
notice to Ms.
pendency
had
Ms.
actual notice
of the divorce action
special appearance
jurisdic-
personal
and, indeed,
amade
to contest
clearly
circumstances,
tion. In these
grant
the trial court
by publication.
a divorce
Albers,
based on service
Albers v.
(234
Burroughs,
Ga.
SE2d
See also
Chafin
826) (1968); Marbury Marbury,
Shaffer and that a state court’s personal jurisdiction exercise supra itsof is constitutional. All that Shaffer, jurisdiction, at holds is that assertions state court personam, satisfy whether in rem or in must the “minimum contacts” supra clearly pointed out, As standard. at itself Shaffer, many types of actions now or which are might brought by holding in rem be would not be affected a must of state-court that the assertion contacts”] [“minimum standard. supra Accordingly, supplied.) (Emphasis Heitner, at 208. Shaffer applicable constitu- action does not violate
Mr. tional for an in rem “minimum contacts” standard mandates if the Denny’s regard lack satisfied, to Ms. own without action of direct contact Georgia. holding supra 208-209, is that at The limited standing property presence alone, will consti- in a mere tute sufficient support exercise of the state’s “minimum contacts” underlying property jurisdiction, is unrelated to the its in rem if Thus, “minimum contacts” standard does of action. cause a true in rem state court foreclose the exercise of “ pre- plaintiff seeking ‘is to secure a case wherein the action a extinguish existing subject property or establish claim in the ” particular persons,’ or the nonexistence of similar interests “when controversy underlying property are the source of the claims itself plaintiff Heit- and the defendant.” between Obviously, divorcing supra dispute ner, resident fn. a between 207. property parties located in as to marital non-resident case, such a claim. In such there is more would constitute presence support the in rem than the mere dispute. court to determine the [T]he claim to located the State defendant’s normally expected that he to benefit from the would indicate strong protection of his interest. The State’s interests State’s marketability assuring its within borders peaceful providing procedure and in resolution of dis- possession sup-
putes of that also about the would important port as would the likelihood that be in the State. records and witnesses will found by publication supra Heitner, at 207-208. When service merely presence compel defendant or for some used not of the purpose litigation, adjudicate rights to the but to other extraneous *4 very property upon based, in the “mini- which rem is supra; Heitner, mum contacts” met. Chenoweth v. test is (Mo. App. Marriage Chenoweth, 575 In re SW2d (Mo. 1977). App. Therefore, where, Breen, 560 SW2d as divorce action is such only Georgia property here, the at issue in a Georgia property in marital spouse as is situated and nonresident very Georgia property therein, the is the claims an interest jurisdic- subject litigation, Georgia has full in rem court substantively changed Che- tion has not which been Shaffer. only supra Chenoweth, It in rem at 874. noweth Abernathy in Mr. invoked and the trial court exercised which case. such in a divorce case could If the trial court Georgia prop-
jurisdiction, possesses marital who then resident erty disposition of that a divorce and a here could not obtain party time, has unless, at the other from the courts of this state some Georgia. in the instant case could If the trial court resided although Abernathy then, been in rem exercise a resident of Georgia six months and owns for more than to dissolve his the courts of Louisiana would be able this marriage Georgia disposition property. Those who and make a of his to the least six months are entitled to access reside dissolving marriages purpose for the their courts of their own state and court dividing any property actually The trial marital located here. parties’
correctly over the concluded relationship disposition situated Geor- marital and the Long gia. unless Arm Statute need not resort to attorney’s alimony relief, form of such as or and until he seeks some requires per- non-Georgia property, marital which fees division of over Ms. herself. sonal except Judgment concur, Fletcher, J.,P. theAll Justices affirmed. Sears, J, who dissent. Presiding dissenting. Justice, Fletcher, separately fully I I Sears’ dissent. write concur Justice approach emphasize unfairness in the taken inherent Georgia’s
majority. majority’s opinion opens the doors of courts The country any an to divorce and obtain citizen of this who wants spouse advantage marital his in the division of unfair or her any property. home, his or her marital All citizen need do leave couple, move to and file for take or all assets spouse to liti- is then forced six months. non-resident jurisdiction. foreign gate in a his or her claim to those marital assets Supreme unfair- Court to foreclose such The United States seemed ago by refusing generation eas- context allow ness in the divorce rights ily off of non- divorces to cut Nevada obtained spouses.1 resident years ago Additionally, 3the United v. Heitner2 emphasized importance in all of “fairness” States exercises of state Court jurisdiction. held that the Court juris- personam”
“quasi
treated like “in
in rem”
must be
analysis
subjected
of Interna-
“minimum contacts”
diction and
Washington3
progeny.4Here, husband seeks
Co. v.
and its
tional Shoe
(68
1561)
Estin,
S.
92 LE
Vanderbilt v. Van
Estin v.
334 U.
SC
See
derbilt,
SC
1 LE2d
S. 186
154, 90 LE
The wife lacks semblance minimum contacts participate state: she has never lived here and she did not in the deci- acquire property Therefore, sion of her husband in this state.7 courts of this state are not authorized to exercise over property, personal, her to determine her interests in marital real and happened bring her husband with him from Louisiana or purchase Georgia. Forcing litigate once he arrived the wife to her happens interests in marital violates “traditional notions of fair wherever her assets husband relocate play justice.”8 and substantial strongly Therefore, I dissent. joins
I am authorized to state that Justice Sears
in this dissent.
dissenting.
Justice,
Sears,
ruling
properly
that the trial court
exercised
majority
case,
this
ings
demonstrates fundamental misunderstand-
long-arm
of our domestic relations
statute9 and of the minimum
contacts test set forth
the United States
Court §
Heitner.10For
follow,
the reasons that
I would hold that
9-
OCGA
preclude
and the minimum contacts test
the exercise of
jurisdiction by the trial court in this case.
compliance
§
1. The
reasons that
with OCGA 9-10-91
(5) unnecessary
only applies
in this case
because
to the exercise
personal jurisdiction
and because Mr.
for
claims
parties’ property only
principles
division of the
invoke
jurisdiction.
majority,
simple pro-
however,
overlooks the
4
[a] court of this state *6 administrator, as to nonresident or his executor or any arising acts, omissions, from of the own- cause of action ership, possession section, use, or enumerated in this Code state, if of if in in the manner as he were a resident the same through agent, person he: an (5) alimony, sup- respect proceedings for to child With property port, an action or division in connection with for of respect independent support to an for divorce or with action dependents, maintains a matrimonial domicile in this of or, this state at the time the commencement action of of if preceding the resided in this state commencement defendant during cohabiting action, time whether that or not. of This for change requirement residency paragraph shall not filing an action for divorce.
(Emphasis supplied.) prop- plainly for of Thus, the addresses actions “division statute provides erty that a an action for divorce” and in connection with jurisdiction “may personal nonresident” trial court exercise from the in an if the cause of action arises maintenance such action state at the time of the commence- of “a matrimonial domicile this “the defendant ... action” or from the residence of ment of this preceding action, whether cohab- the commencement this state given expansive iting during Further, broad, or not.”11 that time property language “proceedings” in connection with for “division of given property divorce,” in divorce and division an action for typically property state, rea- located in this cases involves (5) Assembly §of 9-10-91 is that the General construction sonable involving property govern it cases division intended divorce Assembly Moreover, if had this state. the General located within property language only apply to the for this to easily division intended located outside would presumably have, could and of this it Finally, by providing language have, to that effect. added personal jurisdiction requirements for a trial court exercise how clearly Assembly cases, the division General requisite to be a for intended for 11 Id. Otherwise, those cases. the statute need language regarding
not have contained
divorce and
division
scope
§
cases, and the inclusion of those cases
within the
(5)
completely meaningless.
would be
beyond dispute
Assembly
Further, it is
that the General
has the
power
require personal jurisdiction
in cases of divorce and division
located in
state
if
so desired and to set forth the
type
necessary
jurisdiction.
of contacts
to exercise that
Other courts
legislature
direction,12
have moved in this
I
and believe our
did so in
adopting § 9-10-91
phrase “personal jurisdiction”
Moreover,
mean,
does not
as
Assembly
concludes,
that the
did
General
not intend 9-
apply
regarded
what have
First,
been
as
cases.
explained,
contrary
as I have
it is
to the statute’s clear intent. Sec
paragraph
adopted, blurring
ond, before
of 9-10-91 was
of the
personam
occurring,
blurring
Latin labels in
and in rem was
as was a
requirements
exercising
personam
jurisdic
of the
for
and in rem
“[t]he
instance,
tion. For
Court stated that
anything
fiction
an assertion of
but
property supports
an
assertion
over the owner of the
justification,”13
an ancient form without substantial modern
con
justified
upon
cluded that in rem
had to be
based
personam jurisdiction
minimum contacts test set forth
in Inter
Washington,
national
Co.
Shoe
Moreover, the con- this Court has Heath,16 I involv- struction that advance in this dissent. Heath things, ing, among for division of located other claim state, this held as follows: within this Court foreign personam If defendant, court has over the may adjudicate rights as
it such ali- mony, support, property. child and title to real Whitaker v. right Whitaker, Ga. 895 Such a long-arm § 9- our domestic statute under OCGA afforded (5) provided the defendant has had sufficient mini- appears mum contacts with the state. From record it wife’s that residency of husband’s contacts with the state and because personam court has in parties property rights.17 decide their both “ ‘Georgia’s Additionally, Kemp Sharp,18 have we stated (Braden long Braden, 260 arm statute’ domestic-relations 710) (1990)), applies . . its own terms . support, property. involving alimony, child and division actions by Kemp Sharp brought against none those involved action foregoing implication if action matters.” The clear brought by Kemp is that matters,” i.e., ali had involved one “of those mony, support, property, long-arm child or division of statute commenting applicable. Significantly, on would have been “only Kemp, applies scope of 9-10-91 did not state that we property [located involving . . outside actions . division state].” *8 (5), eviscerating apply § I its terms Instead of 9-10-91 would property. Because action for divorce and division of at did not maintain “matrimonial domicile”
Ms. the time Mr. complaint she did filed his and because 16 17 272) (1988). SE2d 257 Ga. supplied.) (Emphasis Id. at 778. Ga. filed, in
reside trial before the action I would hold that the I exercising jurisdiction, court erred in and would reverse the trial court’s denial her motion to dismiss.19 Further,
2. assuming even that is inapplicable case, the trial nevertheless erred in exercising jurisdiction doing so violates fair fundamental notions of and sub- play minimum stantial meet justice and does not the test contacts estab- lished the Supreme United States Court. Although majority the correctly states that Heitner
does not preclude rem, the exercise of over actions minimum majority fails to give meaningful analysis of whether Instead, contacts were satisfied in this case. majority focuses on following from quote Shaffer: argument, course, This ignore does not fact that presence of property a State bear on the existence jurisdiction by State, providing among contacts the forum defendant, and the litigation. For when claims example, to the itself property are source of the underlying contro- versy plaintiff defendant, between and the it would be unusual for the State where the is located not to property jurisdiction. cases, have In such the defendant’s claim to normally located the State would indicate that he expected to benefit from the State’s of his protection interest.20
Relying on this example,
this case reduces the mini-
mum contacts test for cases
involving the division
located
—
in this state to one factor whether the
related
the lit-
igation. This reductionist
approach, however,
contrary
to the
Supreme Court’s decision in
In Shaffer,
other cases.
referring
the foregoing illustration,
Court stated that
did
not include
minimum
all
the factors
that would
contacts test and that the factors the Court mentioned were not “nec-
essarily
Further,
decisive.”21
a footnote,
the court stated that “[i]n
some circumstances
the presence of
[s]tate
the forum
will
not support
the inference suggested
[i.e.,
in text
the exercise of
jurisdiction is appropriate when the property is
in a state
located
[(Second)
Cf.,
is related to the litigation].
e.g.,
Restatement
Conflict
c,
Laws]
d.”22
Comments
In this regard, Comment c of the
Frasca,
(3) (330
Lanier,
See Frasca v.
Connecting
Contact
Specific
Defendant’s
and Plaintiff’s Claim: The Doctrine of
Jurisdiction and the
Georgia Long-Arm Statute,
Matrimonial Domicile Provisions of the
11 Ga. St. U. L. Rev. 303
20 (Footnotes omitted.) Shaffer,
825
usually
“[a]
provides
will not
60
that
state
Restatement
brought
judicial jurisdiction
in a
into its ter-
to affect interest
chattel
ritory
of
and until the owner
consent
the owner unless
without the
opportunity
the chattel.” The Court
to remove
had a reasonable
one
contacts test is
of
also cautioned that the minimum
application.23
subject
Thus,
not
to mechanical
and is
reasonableness
majority opinion,
Supreme
contrary
that
not
Court did
hold
to the
the
of
dictates
is related to a cause
action
the fact that
Finally,
holding
minimum
test is satisfied.
contacts
emphasized
that “all assertions
state-
Court
according
to the
set
court
must be evaluated
standards
progeny.”24
forth in International Shoe and its
jurisdic-
Although
the exercise of
does not evaluate
pursuant
standards, I will
so.
tion in
case
to those
do
Under
“
progeny,
its
‘have cer-
Shoe25and
defendant must
International
such that the mainte-
tain minimum contacts with the forum state
play
“traditional notions of fair
nance of the suit does
offend
’”26
justice.”
Further,
substantial
the defend
the constitutional touchstone remains whether
purposefully
in the
ant
established “minimum contacts”
Washington, supra,
Co. v.
at
forum State. International Shoe
process analysis
158].
316, [66
“[Critical
. .
SC at
.
due
connection
...
is that the defendant’s conduct and
with
reasonably anticipate
he should
forum State are such that
Corp.
being
Volkswagen
[World-Wide
haled
court
into
there.”
Woodson,
559, 62 LE2d
[286,
444 U. S.
297
SC
v.
(1980)].
defining
potential
In
defendant
when it is
anticipate”
“reasonably
litigation,
out-of-state
should
reasoning
frequently
v.
from the
Hanson
Court
drawn
[(78
Denckla,
1228, 1239-1240, 2 LE2d
357 U. S.
253
SC
(1958):
1283)]
activity
relation-
“The unilateral
of those who claim some
ship
with a nonresident defendant cannot
requirement
applica-
contact
the forum State. The
with
vary
quality
rule will
and nature
tion of that
the defendant’s
activity,
it is
each case
but
essential
Calif.,
Superior
U. S.
that fully act there be some which the defendant conducting privilege avails itself of activities invoking State, within the forum thus the benefits and protections of its laws.” “purposeful requirement This availment” ensures that a jurisdiction solely defendant will not be haled into a as a “random,” “fortuitous,” result of contacts, or “attenuated” Magazine, Inc., Keeton Hustler [770, U. S. 790) (1984)]; Volkswagen Corp. 1473, 79 LE2d World-Wide supra, [444 S.] [100 568] Woodson, at 299, SC at or of the *10 activity party person,” “unilateral of another or a third Helicopteros [466 Colombia, Hall, de Nacionales S.A. v. U. S. (104 404) (1984)].27 1868, SC LE2d Similarly, this Court has held that process [d]ue requires warning that individuals have “fair activity particular jurisdic- subject that a them to the foreign sovereign.” Burger King
tion of a
Rudzewicz,
(105
evaluating
U. S. 462
85 LE2d
reasonably expect
whether a defendant could
to be haled
particular
into court
forum, courts examine defendant’s
(1)
focusing
state,
contacts with the
on whether
defendant
has done some act to avail
of
himself
the law the
of
forum
state;
cise of
the claim related
acts;
is
to those
and
the exer-
is,
reasonable,
is
it
does
violate
play
justice.
fair
notions of
and
Straus,
substantial
Straus v.
(393
248)
Further, basic considerations of fairness dictate that Rudzewicz, Burger Corp.v. King Beasley Beasley, 260 Ga. Denny resolving proper claim. Ms. not the has never forum remained in and has at all times availed herself Abernathy, on the of matrimonial domicile. Louisiana, the state Georgia, purchasing real hand, that State and moved other property left separation. circumstances, Under these here after the upon impose the financial and Ms. her unfair to difficulties Supreme would be Burger litigating Georgia.29 Further, King, in determin- that a factor to consider Court stated “comport[s] play ing ‘fair whether the exercise ” “ judicial system’s justice’ interest is the ‘interstate and substantial ”30 obtaining In cases resolution of controversies.’ the most efficient (Louisiana) present one, there is another state where such as controversy, majority opinion parties’ entire that can resolve the will foster the many issues, with, in inefficient resolution of divorce resolving regarding prop- issues cases, state division this alimony, resolving erty support, child state, and the other state located in this regarding property located in division issues prop- considering Moreover, close connection between that state. alimony support erty issues,31this an and child division issues and of issues that can arise from method to resolve the bundle ineffective a divorce. Denny’s evaluating under Ms. contacts with Instead majority simply progeny, and its concludes International Shoe disputed property mini- here is sufficient that the location of analysis given above, is mis- For the reasons mum contact. guided. proposition.32 for this relies on two Missouri cases Moreover, the *11 however, Missouri Chenoweth, followed seminal correctly recognized Marriage Breen, and Breen of In re case judgments quasi process “perennial in rem and rules of due very by Supreme States Court been reordered the United rem have replaced recently mini- Heitner,” had been Signifi- analysis set forth in International Shoe.33 mum contacts cantly, ruling exercise based that the trial court could analysis, upon minimum considered it the court Breen contacts purchased including parties, nonresident, had critical that the in Missouri. real estate acquisition within Missouri of the real estate (the Kulko, of fairness Court held that considerations U. S. at 97-98 See husband, matrimonial domicile to live the state of violated if who continued
would be
(New
California,
had
York),
litigate
support
the state to which the wife
child
had to
moved).
King,
Burger
U. S. at 476-477.
Stokes,
246 Ga.
Stokes v.
(Mo.
Breen,
Marriage
Chenoweth,
App.
In re
marriage avail purposeful by the spouses pro- tection by of their sovereignty interests in the property. It was a conscious assumption of risk that the State would exercise its over their power property interests, and cer- tainly would adjust the marriage dissolve. their disputes over ownership should Denckla,
Hanson v.
253, [supra].34 The present case stands in stark Here, contrast to Breen. as has been previously dissent, outlined in this Ms. Denny has not purpose- fully availed herself of Georgia sovereignty by purchasing property in this state or otherwise.
Significantly, the majority opinion conflicts with the holdings other courts and the analysis commentators. In this regard, these courts and commentators reason that where one spouse takes mari- tal property to another state and files for divorce in that state cannot the nonresident spouse because the nonresident spouse has not purposefully availed herself of the benefits and protections of the laws of the state where the property is located.35
For the foregoing reasons, I would hold in this case that the trial court’s exercise is inconsistent with the constitutional limitations discussed above. 3. Because the majority (5), misconstrues 9-10-91 as well as the
minimum test, contacts and because a proper analysis of (5) and the minimum contacts test mandate the reversal of the trial court’s exercise of I dissent to the majority opinion.
I am authorized to state that Presiding Justice joins Fletcher this dissent. 3, 1997 Decided March April 4, 1997.
Reconsideration
denied
Hirsch, Partin,
&
Grogan
Grogan,
Partin,
John P.
for appellant.
Cohn,
Cohn &
Cohn,
Leslie L.
for appellee.
McCamy, Phillips, Tuggle
Fordham,
&
Jr.,
T.
Joseph
Tuggle,
Bloom,
Kutner &
Kutner,
Jean M.
amici curiae.
*12
34Breen at 363.
35 Oldham,
Property Rights,
Conflict of
Baylor
Laws and Marital
L. Rev.
Carroll,
(N.C.
1264-1265
Carroll v.
App. 1988);
363 SE2d
Shamley
873-875
(N.C.
Shamley,
(N.D.
455 SE2d
App.
Smith,
Smith v.