Terry Anthony Sargent v. Octavia M. Johnson-Sargent

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 29, 2019

The Court of Appeals hereby passes the following order:

A19A0922. TERRY ANTHONY SARGENT v. OCTAVIA M. JOHNSON- SARGENT

Terry Anthony Sargent (“Terry”) appeals from the Fulton County Superior Court’s final judgment and decree of divorce. He argues that the trial court erred by prematurely entering such judgment because his wife, Octavia Marquitta Johnson- Sargent (“Octavia”), did not serve him with the complaint until after final judgment was entered. The record shows that a certificate of service of the complaint was filed by Octavia’s counsel, along with a blank summons issued by the clerk’s office. No return of the summons was filed. “The sufficiency of service is a question of fact for the trial court[.]” Exum v. Melton, 244 Ga. App. 775, 778 (2) (b) (536 SE2d 786) (2000). Here, the divorce decree was already entered by the time that Terry claims he was served with the complaint and summons. Accordingly, the trial court was not afforded an opportunity to rule on this issue. We therefore remand for the trial court to make a determination regarding the sufficiency of service of the complaint. Compare Elmore v. Elmore, 177 Ga. App. 682, 682 (2) (340 SE2d 651) (1986) (where no summons was issued, “defendant’s insufficiency of service of process defense [raised below] should have

been sustained.”). Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/29/2019 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.