This appeal is from the latest salvo in this continuing dispute between former spouses Cathy Reese Yount and Charles Mulle, Jr. over the custody and support of their minor son. 1
We granted Yount's application to appeal to address whether the trial court erred in granting Mulle's motion to dismiss for lack of personal jurisdiction Yount's Counterclaim for modifiCation of child support filed in response to Mulle's petition for modification of visitation and custody rights. We conclude that the court erred in dismissing the counterclaim based on the lack of personal jurisdiction, and reverse.
The father, a Tennessee resident, filed the present petition for modification of visitation and custody rights on June 15, 1995. It was premised on the mother's plans to relocate and move with the child to North Carolina. At the time of filing, the mother and son were Chatham County residents. 2
The mother answered the petition and filed a counterclaim for a modification of the husband's child support obligation based on an alleged substantial increase in the husband's income and/or financial condition. Relying on Riggio v. Lawson, 204 Ga. App. 774 (420 SE2d 613) (1992)
, the Superior Court of Chatham County concluded it did not have jurisdiction over the father for the purposes of the mother's counterclaim.
The superior court misapplied Riggio. That case, involving an out-of-state defendant and an incident occurring in a foreign country, merely applied the well worn principles of Intl. Shoe Co. v. Washington, 326 U. S. 310 (66 SC 154, 90 LE 95) (1945) to find that the defendant lacked sufficient minimum contacts with Georgia to subject her to suit in this state. The fact that defendant Riggio filed a counterclaim in response to the Georgia action did not alter this. Riggio asserted the defense of lack of personal jurisdiction under OCGA 9-11-12
(b) (2) and included the compulsory counterclaim within her jurisdictional challenge. This was a far different situation.
Here, the party contesting personal jurisdiction of the Georgia court is the plaintiff, who made the purposeful choice to avail himself of the courts of this state. Compare Kemp v. Sharp, 261 Ga. 600 (409 SE2d 204) (1991)
. Having invoked this state's jurisdiction to attempt to accomplish his ends, he could not then renounce it for a related cause unfavorable to him. See Gaither v. Gaither, 206 Ga. 808 (58 SE2d 834) (1950)
. The fact that the UCCJA may have prescribed that, at the time, Mulle bring the action for modification in Georgia 3
does not alter this. See Howerton v. Garrett, 237 Ga. 371 (228 SE2d 786) (1976)
; Houck v. Houck, 248 Ga. 419 (284 SE2d 12) (1981)
By filing the present petition for modification of custody and visitation, Mulle subjected himself to the jurisdiction of the Georgia court for the purpose of his ex-wife's counterclaim for increased child support. The superior court erred in concluding otherwise. 4
McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., for appellee.