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Supersedeas in Georgia Domestic Cases

by merlin on October 12th, 2012
  • Sumo

Supersedeas is defined by Black’s Law Dictionary (my trusty 6th Edition, Copyright 1990), as “The name if a writ containing a command to stay the proceedings at law.  A suspension of the power of the trial court to issue an execution on judgment appealed from, or, if writ of execution has issued, it is a  prohibition emanating from court of appeal against execution of the writ”.  According to Section 5-6-46(a) of the Official Code of Georgia,

“In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form of security be filed; provided, however, that upon motion by the appellee, made in the trial court before or after the appeal is docketed in the appellate court, the trial court shall require that supersedeas bond or other form of security be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interest, and damages for delay if the appeal is found to be frivolous.”

It is generally understood by most persons that an accepted appeal stops the judgment from the Court below from running.  However, this needs to be clarified – it stops the matters that affect the final judgment appealed from running, but it does not stop collateral matters that aren’t affected by that judgment.  Specifically, the cases have done their best to provide clarification on the degree to which a supersedeas actually prevents the judgment from being enforced:

From  Avren v. Garten, 289 Ga. 186, 190-191 (Ga. 2011):

Mother contends that the notice of appeal and application for discretionary review filed on May 20 deprived the trial court of jurisdiction to enter the attorney-fee award on May 25. FN4 “The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as a supersedeas.” OCGA § 5–6–35(h). See OCGA § 5–6–46 regarding a notice of appeal serving as a supersedeas. The supersedeas of a filed application or notice of appeal “deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. [Cit.]” Upton v. Jones, 280 Ga. 895(1), 635 S.E.2d 112 (2006) (after notice of appeal was filed, habeas court without jurisdiction to enter an order clarifying grounds upon which habeas relief was granted). See also Scroggins v. State, 288 Ga. 346, 703 S.E.2d 622 (2010) (after notice of appeal was filed, trial court without jurisdiction to supplement revocation of probation with subsequent order granting an out-of-time discretionary appeal); Kidd v. Unger, 207 Ga.App. 109(3), 427 S.E.2d 82 (1993) (after notice of appeal was filed, trial court without jurisdiction to enter an order purporting to limit the scope of the earlier ruling from which the notice of appeal was filed). The supersedeas that stems from the filing of an application or notice of appeal is limited in that it “supercedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.” Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538 (1982) (notice of appeal from the grant of summary judgment to third-party defendants did not deprive trial court of authority to enter orders in plaintiffs’ action against defendant). See also Cook v. Smith, 288 Ga. 409(4), 705 S.E.2d 847 (2010) (notice of appeal from order holding party in contempt did not deprive the trial court of jurisdiction to rule on issues in underlying action). The trial court retains jurisdiction to handle matters which are independent of and distinct from the judgment on appeal. Davis v. Harpagon Co., 281 Ga. 250(8), 637 S.E.2d 1 (2006). Essentially, the supersedeas that results from the filing of an application to appeal or a notice of appeal deprives the trial court of jurisdiction to take action in the case that would affect the judgment on appeal, but it does not deprive the trial court of entering an order that might be affected by the outcome of the appeal of the underlying judgment, *191 “subject to the peril that any decision reached which conflicts with the decision of the appellate court when rendered will thereby be made nugatory.” Southeastern Wholesale Furniture Co. v. Atlanta etc. Co., 84 Ga.App. 271, 276, 66 S.E.2d 68 (1951).”

From Frazier v. Frazier, 631 S.E.2d 666, 669-670 (Ga. 2006):

“Our research reveals a dearth of case law on the question of whether a trial court can except from the supersedeas a particular portion of the judgment, but the language of the statute itself persuades us such authority exists. “The filing of a motion for a new trial or motion for judgment notwithstanding the verdict shall act as supersedeas unless otherwise ordered by the court; but the court may condition supersedeas upon the giving of bond with good security in such amounts as the court may order.” OCGA § 9-11-62(b). The phrase “unless otherwise ordered by the court” plainly gives the trial court authority to deny supersedeas entirely, and the power to condition supersedeas upon the giving of bond is a further indication of the authority of the trial court to control the automatic supersedeas. No reason appears to limit that authority to an “all or nothing” application. In Walker v. Walker, 239 Ga. 175, 176, 236 S.E.2d 263 (1977), relied upon in part by the trial court in the present case as authority for excepting custody provisions from the supersedeas, this Court suggested that a party wishing to avoid supersedeas with regard to custody provisions of a divorce decree may ask the trial court to include in its final order “a special provision that the custody award is effective as of the date of the judgment to protect the best interest and welfare of the child … [, which provision] would effectively modify the automatic supersedeas as it regards custody….” We view the authority of the trial court under OCGA § 9-11-62(b) to **670 deny or limit the effect of an automatic supersedeas as an acceptable alternative to the “special provision” suggested in Walker. Accordingly, we find no error in the trial court’s inclusion in its grant of Husband’s motion for supersedeas bond a provision excepting the custody provisions of the final decree from the supersedeas arising from Wife’s filing of a motion for new trial.”

From Robinson v. Robinson, 287Ga. 842, 846-847 (Ga. 2010):

“Clearly, the purposes of temporary alimony continue throughout the contest of the divorce, including appeal in this Court, should that occur; it is at the termination of such litigation that the purposes of permanent alimony prevail. We therefore hold that McDonald and similar cases represent the proper rule; if not otherwise altered by the trial court, a temporary award continues in effect until the entry of the  remittitur in the trial court, and it is from that date forward that any permanent award in a final judgment and decree of divorce has effect.”

From Bickford v. Bickford, 228 Ga. 353, 355 (Ga. 1971):

“A judgment for temporary alimony continues in full force and effect until a final judgment in the case, until the termination of the litigation in all courts, and as long as the case is pending, including litigation in the Supreme Court. The judgment cannot be treated as final so long as either party has the right to have it reviewed by the Supreme Court. ”

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