December, 2018 was another slow month for family law-related case law. Only one custody related case, one other family law-related case, and lots of dismissals of appeals were released by the Court of Appeals.
Jackson v. Brown, 822 S.E.2nd 407 (Ga. App. 2018)
Brown (mother) filed a complaint to modify custody and child support. Jackson (father) responded that Brown’s demands should be denied, and he counterclaimed for a modification of visitation. Both parties sought attorney’s fees. After an evidentiary hearing, the Court entered an order on the custody and support issues, but not on the attorney’s fees issues. A “General Civil and Domestic Relations Case Disposition Information Form” was filed on the same day. Brown subsequently filed a letter brief arguing her request for attorney’s fees. Shortly thereafter, the trial court entered an order awarding attorney’s fees to her. Jackson appealed.
Judgment vacated and case remanded. The Court of Appeals rejected Brown’s argument that the attorney’s fees were justified under O.C.G.A. §§ 9-15-14(b) and 9-11-54(d). Nothing in the appellate record gave any indication of the statutory basis for the fee award. Specifically, the order awarding fees did not identify the statutory basis for the award. Nor did Brown’s pleadings identify a statutory basis for her requests for fees. Furthermore, missing from the record were the trial transcripts (or viable substitutes), and Brown’s letter brief seeking attorney’s fees. Accordingly, the Court of Appeals could not ascertain whether the attorney’s fees were authorized under either of the code sections asserted by Brown. The Court, therefore, vacated the order on appeal, and remanded the case for reconsideration and clarification of the trial court’s bases for the fees. The Court also rejected Jackson’s argument that the “General Civil and Domestic Relations Case Disposition Information Form,” not signed by the judge, divested the trial court of jurisdiction to take any further action in the case.
Related Family Law Cases Released in December, 2018:
Jenkins v. Jenkins, 822 S.E.2nd 404 (Ct. App. 2018)
Since the grant or denial of a motion for a protective order lies within the sound discretion of the trial court, the Court of Appeals will not reverse its judgment unless the trial court abuses that discretion.
The Court of Appeals also cleaned house in December, 2018 by dismissing several family law related cases for various reasons. There is much to be learned from these dismissals, including:
Holmes v. Holmes, Case No. A19A0853, Georgia Court of Appeals, dismissed on December 27, 2018.
Orders or judgments in divorce, alimony and other domestic relations cases are reviewed by application for discretionary appeal. O.C.G.A. §5-6-35(a)(2). Compliance with the discretionary appeals procedure is jurisdictional. (See also, McDonald v. McDonald, Case No. A19A0965, Georgia Court of Appeals, dismissed on December 28, 2018; and Butcher v. Bailey, Case No. A19A0839, Georgia Court of Appeals, dismissed on December 6, 2018.)
Gillard v. Tibbs, Case No. A19A0383, Georgia Court of Appeals, dismissed on December 5, 2018.
O.C.G.A. §5-6-34(a)(11) allows for direct appeals from child custody orders. However, the issues raised on appeal determine whether the order is subject to direct appeal. Thus, if the custody rulings are not challenged on appeal, discretionary appeal procedures must be followed.
Damron v. Damron, Case No. A19D0175, Georgia Court of Appeals, dismissed on December 4, 2018.
If the order on appeal is not a final order, then the interlocutory appeal procedures must be followed. O.C.G.A. §5-6-34(b).
Grailer v. Jones, Case No. A19A0707, Georgia Court of Appeals, dismissed on December 7, 2018.
Appeals of orders under the Family Violence Act must comply with the discretionary appeal procedures. O.C.G.A. §5-6-35(a)(2); Schmidt v. Schmidt, 270 Ga. 461 (1999). Additionally, an appeal from an award of attorney’s fees pursuant to O.C.G.A. §9-15-14 must be initiated by an application for discretionary review. O.C.G.A. §5-6-35(a)(10).
Albert v. Albert, Case No. A19A0772, Georgia Court of Appeals, dismissed on December 11, 2018.
For appellate review of a denial of a motion for reconsideration, discretionary appeal procedures must be followed even though the underlying order modified custody. A motion for reconsideration does not toll the time for appeal. Thus, but for Albert’s motion for reconsideration, the custody ruling could have been directly appealed.
Hooper v. Hooper, Case No. A19D0177, Georgia Court of Appeals, dismissed on December 6, 2018.
A motion for new trial tolls the time for filing an application to appeal. O.C.G.A. §5-6-35(d). However, a post-judgment motion for attorney’s fees pursuant to O.C.G.A. §9-15-14 does not toll the time to appeal. Hill v. Buttram, 255 Ga. App. 123 (2002).
Johnson v. Lane, Case No. A19A0563, Georgia Court of Appeals, dismissed on December 6, 2018.
Even though the denial of a motion for re-entry under O.C.G.A. §9-11-60(g) is generally subject to direct appeal, Crawford v. Kroger Co., 183 Ga. App. 836 (1987), in a domestic relations case, an application for discretionary review is required.
Blase v. Blase et al., Case No. A19A0741, Georgia Court of Appeals, dismissed on December 12, 2018.
Pursuant to O.C.G.A. §9-11-56(h), the grant of a motion for summary judgment is generally subject to appeal. If the underlying subject matter of the appeal “clearly arises from or is ancillary to divorce proceedings, or is derived from a marital relationship and divorce,” then it is a domestic relations case that must follow the discretionary appeal procedures.
Morton v. Morton, Case No. A19A0866, Georgia Court of Appeals, dismissed on December 17, 2018.
Appeals from orders denying a motion to set aside a judgment under O.C.G.A. §9-11-60(d) must be made by application for discretionary review. O.C.G.A. §5-6-35(a)(8).
Shiloh v. Smith, Case No. A19A0640, Georgia Court of Appeals, dismissed on December 28, 2018.
Only in rare cases will the appellate courts exercise original mandamus jurisdiction.