Appellant Peter Viskup and appellee Andrea Viskup were married in 1998 and are the parents of a son born in 2000. The parties were divorced in 2006 by judgment and decree entered in Cobb County, with legal and physical custody of the child awarded to appellant Father. In October 2008, appellee Mother filed a petition for modification of custody and child support in the Superior Court of Cherokee County. After denying Father’s motion to dismiss for lack of venue, the trial court granted temporary physical custody of the child to Mother as of December 2008 and permanent primary physical custody and child support in February 2011. Attorney fees were awarded Mother in April 2011, and Father’s motion for new trial was denied in May 2011. Father then filed this direct appeal from a judgment in a child custody case. OCGA § 5-6-34 a 11. See Edge v. Edge , 290 Ga. 551 1 __SE2d__ 2012 construing subsection a 11 as permitting a direct appeal of an order in a child custody case regarding which parent has custody, regardless of finality. 1. Father contends entry of the judgment was erroneous because the modification petition was not filed in and decided by a superior court of the statutorily-prescribed county. OCGA § 19-9-23 a requires a child-custody modification action to be filed in the legal custodian’s county of residence. Mother filed her petition in Cherokee County on October 17, 2008, and service was perfected on Father, the custodial parent, in Cherokee County on October 24. The trial court ruled that Father was served timely and Father does not take issue with that ruling on appeal; rather, Father contends he was not a resident of Cherokee County when Mother filed her petition.
“For purposes of venue and other jurisdictional questions, a person’s residence at the time of filing of suit is the determining factor . . . if followed by service within a reasonable time. . . .” Franek v. Ray , 239 Ga. 282, 285 236 SE2d 629 1977. A change of residence by the defendant after the filing of an action but before trial does not change the proper venue. Cartwright v. Fuji Photo Film USA , 312 Ga. App. 890 3 720 SE2d 200 2011. When the trial court conducts a hearing and makes findings of fact on a motion to dismiss or transfer for improper venue, the findings of fact are tested by the any evidence rule. Oglesby v. Deal , 311 Ga. App. 622 716 SE2d 749 2011.
