Motion to Dismiss in Britt-Kaylia Witherspoon VS Newton Alcide| Trellis.Law

On April 07, 2023 a Motion-Secondary was filed involving a dispute between Witherspoon, Britt-Kaylia, and Alcide, Newton, for Domestic - Divorce/Alimony in the District Court of DeKalb County.

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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA

BRITT-KAYLA WITHERSPOON, §
§
Plaintiff, §
§
vs. § CIVIL ACTION
§ FILE NO. 23FM8503
NEWTON ALCIDE, §
§
Defendant. §

PLAINTIFF’S RESPONSE AND OBJECTION TO DEFENDANT’S
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, PERSONAL
JURISDICTION, VENUE AND THEORY OF FORUM NON CONVENIENS PURSUANT TO
O.C.G.A 9-10-31.1(a) AND REQUEST FOR EVIDENTIARY HEARING

Comes now, Plaintiff BRITT-KAYLA WITHERSPOON (hereinafter, “Wife”) and files her

RESPONSE AND OBJECTION TO DEFENDANT’S NEWTON ALCIDE (hereinafter “Husband”

MOTION TO DISMISS FOR LACK OF SUBJECT MATTE JURISDICTION, PERSONAL

JURISDICTION, VENUE AND THEORY OF FORUM NON CONVENIENS PURUSANT TO O.C.G.A

9-10-31.1(a) AND REQUEST FOR EVIDENTIARY HEARING (hereinafter “Husband’s Motion”) and

respectfully shows the Court the following:

Plaintiff admits the allegations contained in Paragraph One (1) of Husband’s Motion.

Plaintiff admits the allegations contained in Paragraph Two (2) of Husband’s Motion.

Plaintiff admits the allegations contained in Paragraph Three (3) of Husband’s Motion. By way of

further response, Plaintiff filed the instant Complaint for Divorce on or about September 25, 2023 and did

not receive notice of a divorce proceeding filed by Defendant in the State of Florida until on or about

October 5, 2023, when she was served with process in the State of Georgia.

Plaintiff denies the allegations contained in Paragraph Four (4) of Husband’s Motion. By way of

2022. There is one (1) minor child born as issue of the marriage to wit: TZIPPORAH ALCIDE, a female

child, born in July 2022 (hereafter, the Minor Child). Wife and Minor Child have been exclusively residing

in Georgia since relocating without objection from Husband on January 1, 2023. As such, Georgia is the

Minor Child’s “Home State” pursuant to O.C.G.A. 19-9-67, which codifies the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA). Since January 1, 2023, Husband has not traveled to or visited

the State of Georgia to see the Minor Child, nor has he provided any financial support with the exception

of a few diapers.

Plaintiff denies the allegations contained in Paragraph Five (5) of Husband’s Motion. By way of

further response, there is no marital property located in the State of Florida to divide, and the main issues

for determination are child custody and child support, making the home state evaluation in Georgia under

the UCCJEA even more salient to the determination of this action.

OVERVIEW

I. Husband’s Motion Is Meritless And Must Be Denied.

a. Jurisdiction and Venue are Proper In This Court.

This Court has subject matter jurisdiction over the above-styled divorce proceeding because Wife

is a domiciliary of the State of Georgia, and has been for the six months prior to the filing of this action as

required by law. As shall be detailed below, Wife meets all of the objective factors which Georgia courts

consider when making a determination of domicile. Further, venue is appropriate as all of the evidence

related to a custody determination is located in Georgia.

b. Georgia is the Most Convenient Forum.

Pursuant to O.C.G.A. § 9-10-31.1(a), Georgia is the most convenient and appropriate forum for the

parties’ divorce action to proceed, as the Minor Child has resided in Georgia with Wife for a majority of

her young life, all of the facts and evidence related to the Minor Child are in Georgia, and Georgia has a

vested interest in determining the instant action.

Under the UCCJEA, codified as O.C.G.A. § 19-9-61, Georgia has a jurisdictional basis for an initial

custody proceeding because Wife and Minor Child have resided in Georgia since January 1, 2023, more

than the six-month requirement necessary for Georgia to establish jurisdiction under the UCCJEA.

ARGUMENT AND CITATION TO AUTHORITY

The application of the case law and statutory authorities of the State of Georgia to the facts set

forth hereinabove demonstrates conclusively the following:

a. This Court has subject matter jurisdiction over the res of the marriage by virtue of the fact that Wife

is a domiciliary of Georgia and venue is appropriate;

b. Though unnecessary for Wife to prove, Georgia is, in fact, the proper and most convenient forum

to hear this divorce action;

c. According to the UCCJEA, the minor child’s home state is Georgia. A ‘home state’ is defined as

the state a child lived in with a parent for at least six consecutive months prior to commencement

of a custody proceeding, including any periods of temporary absence. O.C.G.A. § 19-9-41(7).

I. This Court has subject matter jurisdiction over the res of the marriage because
Wife, the Plaintiff, is a domiciliary of Georgia and venue is proper.

For a court in the State of Georgia to be vested with subject matter jurisdiction over a divorce

proceeding, the Plaintiff in such a proceeding must have been a bona fide resident of the State for the six

(6) months prior to the divorce petition being filed. See, O.C.G.A. § 19-5-2 Under Georgia law, the

concept of a Plaintiff’s “residence,” for purposes of conferring subject matter jurisdiction in a divorce, is

synonymous with “domicile.” See, Worrell v. Worrell, 242 Ga. 44, 45 (1978), and O.C.G.A. § 19-2-1.

Further, pursuant to the Supreme Court’s ruling in Abernathy v. Abernathy, 267 Ga. 815, 816 (1997), a

party must demonstrate that the Court has jurisdiction over the res of the marriage. This can be conferred

by the Plaintiff being a Georgia domiciliary. Id.

actual change of residence with the avowed intention of remaining at the new residence” and

“[d]eclaration of an intention to change one’s domicile is ineffectual for that purpose until some act is

done in execution of the intention.” Critical to the instant matter, the Supreme Court in Conrad v.

Conrad, 278 Ga. 107, 108 (2004) held that “the establishment of a domicile requires both an actual

change of residence coupled with the avowed intention of remaining at the new residence.” (Emphasis

added.)

Of additional relevance and instruction with regard to the requirements necessary to support a

change of domicile, is Williams v. Williams, 191 Ga. 437, 438 (1940), in which the Supreme Court held

that, “[w]hile it is true that in order to acquire a domicile in a particular jurisdiction a person must actually

reside there with the intention of remaining permanently or for an indefinite time, it is also true that a

domicile once established continues until a new domicile is acquired; and since a new domicile cannot be

acquired simply by a change of residence, but it must be with the intention of abandoning the old

residence and of remaining permanently or for an indefinite time in the new, it follows that a person

may continue to be domiciled in this State even though at the time he may be in fact residing in

another State.” (Emphasis added.) Additionally, the Williams court held that the statutory residency

requirement for a Georgia court to have subject matter jurisdiction over a divorce “does not constitute a

requirement that the plaintiff should have actually resided here during that period…” Id. at 439.

(Emphasis added.)

In determining Wife’s domicile under the relevant law set forth above, it is indisputable that she

is a domiciliary of the State of Georgia. The crux of a domiciliary determination is the Plaintiff’s intent,

and the courts of Georgia have looked to certain factors. In the instant case, on January 1, 2023, Wife and

Minor Child relocated from Florida to Georgia. Wife made clear her intention that she was leaving

Florida with the Minor Child to relocate to Georgia, to which Husband did not object and did not file for

Divorce in Florida until on or about September 19, 2023. It is disingenuous for Husband to now argue

that he in any way objected to Wife and Minor Child relocating when he declined to file for divorce until

Georgia, and maintains a Georgia license.

II. Georgia is the proper and most convenient forum to hear the divorce action, given
that Wife is a Georgia domiciliary and the majority of relevant evidence and
witnesses are in Georgia.

While the Court does not have to consider at this stage whether or not Georgia is the convenient

forum to hear this divorce proceeding, an application of the law regarding same to the facts at hand is

instructive and serves to support this Court retaining jurisdiction in the event it is determined by the

respective courts that jurisdiction is “proper” in both Florida and Georgia.

Pursuant to the Supreme Court’s decision in Holtsclaw v. Holtsclaw, 269 Ga. 163, 165 (1998), “[i]n

the public interest of insuring justice for Georgia residents, O.C.G.A. § 19-5-2 provides that those who have

lived here for at least a six-month period ‘are entitled to access to the courts of their own state for the

purpose of dissolving their marriages and dividing any marital property actually located here.’” (citing

Abernathy v. Abernathy, 267 Ga. 815, 819 (1997)). Further, the Court held that once the statutory six-

month residency requirement is satisfied, a constitutional right to seek a divorce in the superior court of the

county of his residence vests, pursuant to Article VI, Section II, Paragraph I and Article VI, Section IV,

Paragraph I of the Georgia Constitution. Id. at 165. Lastly, “the doctrine of forum non conveniens cannot

be used to deprive [a party] of [their] right under the state constitution to litigate [their] divorce action in

the superior court of the county of [their] residence.” Id. at 165, citing Richard v. Johnson, 219 Ga. 771,

776 (1964).

Thus, given the facts of the instant action, because Wife has clearly proven that she is both a resident

of and domiciled in the State of Georgia, she is entitled to litigate her divorce action in the Superior Court

of Dekalb County, the county of her residence, pursuant to the Georgia Constitution.

In addition to Wife’s right to a divorce in Georgia, she further shows this Court that it is simply the

most convenient forum for same pursuant to O.C.G.A. § 9-10-31.1. To illustrate:

In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine

of forum non conveniens, the court shall give consideration to the following factors:

Britt-Kayla Witherspoon v. Newton Alcide
Superior Court of Dekalb County, Civil Action File No. 23FM8503
Plaintiff’s Response and Objection to Defendant’s Motion to Dismiss
Page 5 of 9
1.
Relative ease of access to sources of proof;
2.
Availability and cost of compulsory process for attendance of unwilling witnesses;
3.
Possibility of viewing of the premises, if viewing would be appropriate to the action;
4.
Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right
to pursue his or her remedy;
5. Administrative difficulties for the forum courts;
6. Existence of local interests in deciding the case locally; and
7. The traditional deference given to a plaintiff's choice of forum.
O.C.G.A. § 9-10-31.1

In the instant case, Minor Child and Wife have been residing in Georgia since January 1, 2023, or

nearly eleven (11) months. Access to proof, available evidence, and witnesses are all located in Georgia

given the length of time that Wife and Minor Child have exclusively resided in Georgia. Given the

proximity between the adjacent states of Georgia and Florida, there is no extenuating circumstance that

would prevent Defendant on appearing in Georgia; wherein, there would be no administrative difficulties

to do so. The local interests far outweigh any inconvenience to Husband. Deference should be given to

Wife’s choice of forum.

III. According to the UCCJEA, the Minor Child’s Home State is Georgia.

Pursuant to the UCCJEA, a court of this state has jurisdiction to make an initial child custody

determination only if:

(1) This state is the home state of the child on the date of the commencement of the proceeding,
or was the home state of the child within six months before the commencement of the proceeding
and the child is absent from this state but a parent or person acting as a parent continues to live in
this state. O.C.G.A. 19-9-61

As discussed at length herein, Georgia is unequivocally the home state of the Minor Child at the

date of commencement of either the Florida Divorce Complaint filed by Husband or the Georgia Divorce

Complaint filed by Wife.

Murillo v. Murillo, 300 Ga. App. 61, 63, 684 S.E.2d 126, 128 (2009) established that courts must

examine and issue findings regarding the eight factors for determining the most convenient forum as laid

out in O.C.G.A. § 19-9-67(b). These are: 1) Whether family violence has occurred and is likely to continue

in the future and which state could best protect the parties and the child; 2) The length of time the child has

resided outside this state; 3) The distance between the court in this state and the court in the state that would

as to which state should assume jurisdiction; 6) The nature and location of the evidence required to resolve

the pending litigation, including testimony of the child; 7) The ability of the court of each state to decide

the issue expeditiously and the procedures necessary to present the evidence; and 8) The familiarity of the

court of each state with the facts and issues in the pending litigation. O.C.G.A. § 19-9-67(b).

Pursuant to the aforementioned factors enumerated by statute and case law, Georgia is the most

convenient forum. While acts of domestic violence have not occurred, Wife left the State of Florida fearful

that continued emotional manipulation and violence would occur against her in the near future. Wife and

the Minor Child have been in Georgia for nearly eleven (11) months, where the vast majority of evidence

and witnesses to make a custody determination are located. The proximity between the adjacent states of

Florida and Georgia do not make Georgia an inconvenient forum to litigate this matter. This Court is better

equipped to decide the issues expeditiously, as no evidence has yet been presented in any Florida Court,

nor would a Florida Court be required to divide marital assets, as there are none located in Florida. The

financial circumstances of the parties also warrant that this Court maintain exclusive jurisdiction, as it

would be unnecessarily burdensome to uproot Wife and disrupt the Minor Child’s day-to-day routine.

Further, Wife has been singularly supporting the emotional and physical needs of the Minor Child with no

financial support from Husband, with the exception of the receipt of some diapers. Father has made no

effort to visit his daughter in the State of Georgia.

CONCLUSION

Based on the foregoing evidence and supporting law, Wife shows conclusively that her domicile

was, and continues to be, the State of Georgia. Wife is a domiciliary of Georgia, and she is entitled as a

matter of law to a divorce in her county of residence in the State of Georgia, which is the Dekalb County

Superior Court.

This Court is vested with subject matter jurisdiction over this divorce proceeding where venue is

proper, and according to the UCCJEA, Georgia is the Minor Child’s home state. Pursuant to O.C.G.A. §

the parties’ divorce.

This Court should deny Husbands Motion as a matter of law, and cast all costs associated with

responding to Husband’s meritless Motion to Dismiss against Husband.

Respectfully submitted this 30th day of October, 2023.

/s/ Anthony Rao III
Anthony Rao III
Georgia State Bar No. 528491

KESSLER & SOLOMIANY, LLC
Attorneys for Wife
Centennial Tower
101 Marietta Street, Suite 3500
Atlanta, Georgia 30303
(404) 688-8810
arao@ksfamilylaw.com

BRITT-KAYLA WITHERSPOON, §
§
Plaintiff, §
§
vs. § CIVIL ACTION
§ FILE NO. 23FM8503
NEWTON ALCIDE, §
§
Defendant. §

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing RESPONSE AND OBJECTION TO

DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION,

PERSONAL JURISDICTION, VENUE AND THEORY OF FORUM NON CONVENIENS

PURUSANT TO O.C.G.A 9-10-31.1(a) AND REQUEST FOR EVIDENTIARY HEARING has been

served upon counsel for Defendant via Statutory Electronic Service addressed as follows:

Jule McReynolds, Jr, Esq.
McReynolds Law Firm, P.C.
3799 Main Street
College Park, Georgia 30337
jule@mcreynoldslawpc.com

Respectfully submitted this 30th day of October, 2023.

/s/ Anthony Rao III
Anthony Rao III
Georgia State Bar No. 528491

KESSLER & SOLOMIANY, LLC
Attorneys for Wife
Centennial Tower
101 Marietta Street, Suite 3500
Atlanta, Georgia 30303
(404) 688-8810
arao@ksfamilylaw.com

Britt-Kayla Witherspoon v. Newton Alcide
Superior Court of Dekalb County, Civil Action File No. 23FM8503
Plaintiff’s Response and Objection to Defendant’s Motion to Dismiss
Page 9 of 9

Case Info

Judge

Jackson, Asha F. Track Judge’s New Case

Case No.

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Document Filed Date

October 30, 2023

Case Filing Date

April 07, 2023

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Motion-Secondary: Britt-Kaylia Witherspoon VS Newton Alcide

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