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Guerrero v. Guerrero

The husband was entitled to a new trial following the entry of a final decree granting his wife's complaint for divorce, as he was not properly served with the summons and complaint.

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We granted the discretionary application of Timothy Guerrero husband under our Rule 34 4 to determine whether the trial court erred in its denial of a motion for new trial in this divorce and child support action. After reviewing the record, we find that husband was not properly served with the summons and complaint, and therefore, we reverse the trial court’s order denying husband’s motion for new trial.

Husband and wife, Beth Guerrero, were married in July 2003. Together they had four children, all of whom are minors and reside with their mother in Butts County, Georgia. In May 2012, wife filed a complaint for divorce alleging that husband was a resident of the State of California and had moved from the marital residence in Butts County within the six months preceding the filing of the divorce action, thus subjecting husband to the jurisdiction and venue of the Butts County Superior Court. She also averred that husband could be personally served at 9786 Arrow, Rancho Cucamonga, California. In order to serve the summons and complaint, wife retained Bosco Legal Services, Inc., a private legal service company, which attempted on several occasions to personally serve husband at the Rancho Cucamonga address. After several failed attempts at personal service, a process server named Jeffery G. Dunn returned an affidavit of service indicating he served husband by substitute service at 9786 Arrow, Rancho Cucamonga, California, by leaving the complaint “with or in the presence of: Maria Schiemm, Occupant” who was a “person of suitable age and discretion.”

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