Ashburn v. Baker

In Ashburn v. Baker, 256 Ga. 507, 509 (2) (350 SE2d 437) (1986), following a divorce in Chatham County, the custodial mother moved out of state with the couple's child. The father brought a motion for contempt and for modification of custody rights in Chatham County three years later alleging that the mother had violated his visitation rights under the court's earlier orders. Baker v. Ashburn, 179 Ga. App. 757 (347 SE2d 660) (1986), aff'd, Ashburn v. Baker, 256 Ga. 507. The mother was personally served out of state, but she moved to dismiss the proceedings on the grounds that she was not subject to the jurisdiction of the court and had not been properly served. Id. On appeal, this Court held that the Georgia Long Arm Statute did not provide authority for obtaining personal jurisdiction for custody issues although it did for alimony, child support, or division of property. Baker v. Ashburn, 179 Ga. App. at 758. The applicable wording of that statute had not changed since that time. See OCGA 9-10-91 (5). The Court also held, and the Supreme Court affirmed, that the UCCJA did not provide the lower court with personal jurisdiction either. Id. The Supreme Court explained that despite the lower court's continuing jurisdiction of the custody dispute, personal jurisdiction for contempt upon the nonresident mother required "personal service or waiver of personal service" and that personal service outside Georgia was invalid. Ashburn v. Baker, 256 Ga. at 509 (2). With regard to the UCCJA, the Supreme Court found that it "did not expressly repeal any particular provisions of the Civil Practice Act, nor the existing statutory provisions covering divorce, custody, alimony, and child support procedures." Id. Therefore, the court construed the requirements of the UCCJA "in pari materia" with other law and held that the Georgia court did not have personal jurisdiction of the nonresident mother under the UCCJA or the Long Arm Statute. Id.