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BASIC Appellate Procedure (“Divorce” Cases Versus “Child Custody” Cases)

by merlin on January 9th, 2013
  • Sumo

Because of a recent run-in with a powerful level of ignorance (ignorance coupled with power is ALWAYS incredibly dangerous, and generally destructive), I would like to point out some BASICS about Appellate procedure.

1. Appeals can be DIRECT (meaning there is a right to appeal from the decision of the trial court), governed by Georgia Code Section 5-6-34:

(a) Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state:

(1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35;

(2) All judgments involving applications for discharge in bail trover and contempt cases;

(3) All judgments or orders directing that an accounting be had;

(4) All judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions;

(5) All judgments or orders granting or refusing applications for attachment against fraudulent debtors;

(6) Any ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-173;

(7) All judgments or orders granting or refusing to grant mandamus or any other extraordinary remedy, except with respect to temporary restraining orders;

(8) All judgments or orders refusing applications for dissolution of corporations created by the superior courts;

(9) All judgments or orders sustaining motions to dismiss a caveat to the probate of a will;

(10) (For effective date, see note) All judgments or orders entered pursuant to subsection (c) of Code Section 17-10-6.2;

(11) (For effective date, see note) All judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders; and

(12) (For effective date, see note) All judgments or orders entered pursuant to Code Section 35-3-37.

(b) Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein. The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate, but no certification of such copies by the clerk of the trial court shall be necessary. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties in the case in the manner prescribed by Code Section 5-6-32, except that such service shall be perfected at or before the filing of the application. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 45 days of the date on which the application was filed. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in Code Section 5-6-37. The notice of appeal shall act as a supersedeas as provided in Code Section 5-6-46 and the procedure thereafter shall be the same as in an appeal from a final judgment.

(c) In criminal cases involving a capital offense for which the death penalty is sought, a hearing shall be held as provided in Code Section 17-10-35.2 to determine if there shall be a review of pretrial proceedings by the Supreme Court prior to a trial before a jury. Review of pretrial proceedings, if ordered by the trial court, shall be exclusively as provided by Code Section 17-10-35.1 and no certificate of immediate review shall be necessary.

(d) Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous. Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.

(e) Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

2. Conversely, appeals can be discretionary (meaning that the appeal is by application for Certiorari), governed by Georgia Code Section 5-6-35:

(a) Appeals in the following cases shall be taken as provided in this Code section:

(1) Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers’ Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by certiorari or de novo proceedings; provided, however, that this provision shall not apply to decisions of the Public Service Commission and probate courts and to cases involving ad valorem taxes and condemnations;

(2) Appeals from judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders;

(3) Appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and such amount is $2,500.00 or less;

(4) Appeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code Section 5-6-34;

(5) Appeals from orders revoking probation;

(5.1) Appeals from decisions of superior courts reviewing decisions of the Sexual Offender Registration Review Board;

(5.2) Appeals from decisions of superior courts granting or denying petitions for release pursuant to Code Section 42-1-19;

(6) Appeals in all actions for damages in which the judgment is $10,000.00 or less;

(7) Appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial;

(8) Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment;

(9) Appeals from orders granting or denying temporary restraining orders;

(10) Appeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14;

(11) Appeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal; and

(12) Appeals from orders terminating parental rights.

(b) All appeals taken in cases specified in subsection (a) of this Code section shall be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction. The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.

(c) The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed and should include a copy of the petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion. An applicant may include copies of such other parts of the record or transcript as he deems appropriate. No certification of such copies by the clerk of the trial court shall be necessary in conjunction with the application.

(d) The application shall be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties as provided by law, except that the service shall be perfected at or before the filing of the application. When a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.

(e) The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The response may point out that the decision of the trial court was not error, or that the enumeration of error cannot be considered on appeal for lack of a transcript of evidence or for other reasons.

(f) The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 30 days of the date on which the application was filed.

(g) Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.

(h) The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.

(i) This Code section shall not affect Code Section 9-14-52, relating to practice as to appeals in certain habeas corpus cases.

(j) When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. Thereafter the appeal shall proceed as provided in subsection (g) of this Code section.

(k) Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

Last night, I pointed out that the Order that governs on appeal is the last unappealed Order.  That needs to be qualified by focusing on Subsection (k) of Section 5-6-35, above.  However, just because a case CONCERNS “child custody” does NOT make it a “child custody case”.  That is a specific kind of case, differentiated from a “divorce case”, even though child custody issues might be a large part of the litigation.  A “divorce case” is NOT controlled by the exception of 5-6-35(k).  For support on this distinction, and to make this point ABSOLUTELY CLEAR, I present the 2010 Georgia Supreme Court case of Todd v. Todd, 703 S.E.2d 597:

James E. Watkins, McDonough, for appellant.Sullivan & Ogletree, Michele W. Ogletree, Griffin, for appellee.CARLEY, Presiding Justice.

        The trial court entered a final divorce decree which dissolved the parties’ marriage, distributed their property and awarded primary physical custody of the parties’ minor child to Sharon Todd (Mother). During the same term of court, Walter Todd (Father) filed a motion for reconsideration, requesting primary physical custody of the child. After a hearing, the trial court vacated the child custody, visitation and child support provisions of the original decree, and revised the decree to award physical custody of the child to Father. Mother then challenged the custody award in the final divorce decree by timely filing both an application for discretionary appeal in this Court and a notice of appeal in the trial court. The notice of appeal and the record were promptly transmitted to this Court, and the case was separately docketed as a direct appeal. However, the discretionary application was subsequently granted pursuant to our Pilot Project in divorce cases. Mother did not thereafter filed a second notice of appeal.

         1. “It is incumbent upon this Court to inquire into its own jurisdiction. [Cit.]” Nix v. Watts, 284 Ga. 100664 S.E.2d 194 (2008). A direct appeal will not lie from a judgment granting a divorce, and instead an appeal from such a judgment must be brought by application. OCGA § 5–6–35(a)(2). Likewise, prior to 2007, there was no right to a direct appeal in child custody cases. Instead, pursuant to the former version of OCGA § 5–6–35(a)(2), appeals in such cases had to be brought by application. However, in 2007, the General Assembly amended both OCGA §§ 5–6–34 and 5–6–35, removing all references to child custody cases in OCGA § 5–6–35(a)(2), and enacting subsection (11) in OCGA § 5–6–34(a), to provide that direct appeals may be taken from “judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” Consequently, this case raises the issue of whether the right to a direct appeal in child custody cases, set forth in OCGA § 5–6–34(a)(11), applies to final decrees of divorce in which child custody is an issue.

        Both OCGA §§ 5–6–34(a) and 5–6–35(a) are involved when, as here, a trial court issues a judgment listed in the direct appeal statute in a case whose subject matter is covered under the discretionary appeal statute. In resolving similar conflicts, this court has ruled that an application for appeal is required when the “underlying subject matter” is listed in OCGA § 5–6–35(a). [Cit.] Therefore, the discretionary application procedure must be followed, even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5–6–34(a). [Cits.]

Rebich v. Miles, 264 Ga. 467, 468448 S.E.2d 192 (1994).

        In this case, the underlying subject matter is the divorce action resulting in a final divorce decree. Although the divorce decree here determined, among other things, child custody, such determination does not transform this into a “child custody case” as that phrase is used in OCGA § 5–6–34(a)(11). In enacting that code section and revising OCGA § 5–6–35(a)(2), the General Assembly specifically provided that its amendments “shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.” Ga. L. 2007, pp. 554, 569, § 8. A divorce action is not a child custody proceeding, but is a proceeding brought to determine whether a marriage should be dissolved. See OCGA § 19–5–1 et seq. All other issues in a divorce action, including child custody, are merely ancillary to that primary issue. In a somewhat similar context, this Court has held that even though a deprivation proceeding necessitates a determination as to child custody, “the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters.” In the Interest of J.P., 267 Ga. 492480 S.E.2d 8 (1997). See also In the Interest of J.N., 302 Ga.App. 631(1), 691 S.E.2d 396 (2010).

        This Court has not previously resolved the issue raised by this appeal, but it has interpreted the effective date of the act in question, holding that “the salient date for triggering the change in appellate procedure … is the time the legal action is filed, not the date that an order sought to be appealed in such action is issued.” In the Interest of K.R., 285 Ga. 155, 156674 S.E.2d 288 (2009). Although not conclusive, this holding is consistent with the idea that the nature of the legal action filed is critical to the determination of the correct appellate procedure.

        Three Court of Appeals cases, which have allowed direct appeals under OCGA § 5–6–34(a)(11), exemplify the kind of “child custody case” that is encompassed by that code section. In Taylor v. Curl, 298 Ga.App. 45679 S.E.2d 80 (2009), the father filed a petition for temporary custody, which the trial court granted. The mother directly appealed. The Court of Appeals held that she “was not required to comply with either the interlocutory or discretionary appeal procedures in this case.” Taylor v. Curl, supra.

        In Martinez v. Martinez, 301 Ga.App. 330687 S.E.2d 610 (2009), during a pending divorce action, the trial court granted the father’s motion to enforce a settlement agreement pertaining to child custody. The mother filed a direct appeal challenging enforcement of the settlement agreement. The Court of Appeals held that the direct appeal was authorized because the order being appealed predicated the child custody award on the settlement agreement, not on the allegations of the divorce action. Martinez v. Martinez, supra at 332(1), 687 S.E.2d 610.

        In Lurry v. McCants, 302 Ga.App. 184690 S.E.2d 496 (2010), the father filed a petition to modify child custody that had been established by a consent order. The trial court denied the petition, and the Court of Appeals noted that the father’s direct appeal was authorized because it stemmed from the modification petition and the order thereon. Lurry v. McCants, supra at 184, fn. 1, 690 S.E.2d 496.

         This case is materially different from Taylor, Martinez and Lurry. Unlike those cases, there is not a separate child custody order being appealed. Rather, there is a final divorce decree which includes a child custody determination. Thus, even if the only relief sought on appeal pertains to that custody decision, the underlying subject matter is still the divorce action and its resulting final decree.

        We reiterate that the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal. A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5–6–35. This approach fulfills the legislature’s intent to give appellate courts more discretion in managing their caseload. Otherwise, any party [to a divorce involving child custody] could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal.

Rebich v. Miles, supra at 469, 448 S.E.2d 192. Because this is not a child custody case, but is a divorce case in which child custody is an issue, OCGA § 5–6–35(a)(2) requires an application for discretionary appeal, and a direct appeal is not authorized by OCGA § 5–6–34(a)(11). However, Mother did follow the required application procedures. Furthermore, the timing of her notice of appeal does not deprive her of the appeal which this Court granted.

        [W]hile a failure to file a notice of appeal within ten days after the grant of an application will subject an appellant to dismissal, the filing of a notice of appeal after the judgment complained of is entered but before the granting of the application to appeal does not constitute a failure to timely file. [Cits.]

Wannamaker v. Carr, 257 Ga. 634, 635(1), 362 S.E.2d 53 (1987). See also Mixon v. Mixon, 278 Ga. 446(1), 603 S.E.2d 287 (2004).

Thus, the appeal is properly before this Court.

         2. Mother asserts that the trial court erred in granting the motion for reconsideration and changing physical custody when there was no evidence of any adverse effect on the best interests of the child. “[A] trial judge has the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion. [Cits.]” Bagley v. Robertson, 265 Ga. 144, 146454 S.E.2d 478 (1995). Moreover, this inherent power may be extended beyond the term in which a judgment was entered when a motion for reconsideration is filed within that same term of court. Masters v. Clark, 269 Ga.App. 537, 539604 S.E.2d 556 (2004). Since the motion for reconsideration in this case was filed within the term of court that the original custody decree was entered, the trial court was authorized to exercise its inherent power to revise the custody award beyond that term. OCGA § 15–6–3(19)(C) (Spalding County Superior Court terms of court commence on the first Monday in February, June and October).

         However, this inherent power “was never intended to authorize the judge to set aside a judgment duly and regularly entered unless some meritorious reason is given therefor. [Cit.]” Hicks v. Hicks, 226 Ga. 798, 799177 S.E.2d 690 (1970). In this case, the sole basis for the motion for reconsideration was that Mother was living with a man named Adam Maraman. At the motion hearing, all the evidence related only to that issue, and there was no evidence concerning the welfare of the child. Father presented a private investigator, who testified that, based on his surveillance, he believed that Mother and Maraman were living together. Conversely, Mother and Maraman both testified that they were not living together prior to the divorce, and that since the divorce they had gotten married. At the conclusion of the hearing, the trial judge found that Maraman had been living with Mother, stated that it has always been his policy not to award custody to a parent living with a non-relative, and ruled that he was thus reversing the original custody decree. In the order on the motion for reconsideration, the only reason given by the court for changing physical custody from Mother to Father was that Mother had misrepresented who was living in her home.

         However, even if Mother was living with Maraman, this conduct did not authorize the trial court’s custody decision without a determination as to the best interests of the child. “While the trial court may consider the conduct of the parties on the issue of custody, [cit.], the court ultimately must decide the custody question based on the best interest of the child.” Mock v. Mock, 258 Ga. 407369 S.E.2d 255 (1988). Indeed, “ ‘the welfare of the child is the controlling factor in the court’s determination of custody.’ [Cits.]” Taylor v. Taylor, 280 Ga. 88, 89623 S.E.2d 477 (2005). Here, it is apparent from the record and transcript of the motion hearing that the welfare of the child was not the controlling factor in the custody decision. The trial court did not evaluate or make any determinations as to the best interests of the child, and instead simply followed its own rigid policy that a parent living with a non-relative can never be awarded custody. Compare Patel v. Patel, 276 Ga. 266, 268–269(1), 577 S.E.2d 587 (2003) (nothing in record or transcript indicated that trial court believed that the father’s conduct mandated an award of custody to the mother, and instead the court properly evaluated the circumstances in light of the best interests of the children and genuinely considered all factors affecting the children’s welfare). Contrary to the trial court’s apparent belief that Mother’s conduct mandated an award of custody to Father, here, “as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test.” Bodne v. Bodne, 277 Ga. 445, 446588 S.E.2d 728 (2003). Consequently, the trial court order vacating and revising the original award of physical custody to Mother is not based on a meritorious reason, and constitutes an erroneous exercise of the court’s inherent power to modify the original decree. See Hicks v. Hicks, supra at 800, 177 S.E.2d 690. Compare Pekor v. Clark, 236 Ga. 457, 459(3), 224 S.E.2d 30 (1976) (evidence showed that trial court did not abuse its discretion in awarding custody to father). Accordingly, the judgment is reversed and the case is remanded with direction that the trial court consider the best interests of the child and rule on the motion for reconsideration in a manner consistent with this opinion. See Taylor v. Taylor, 280 Ga. 88, 89623 S.E.2d 477 (2005);Baker v. Baker, 276 Ga. 778, 783(5), 582 S.E.2d 102 (2003).

        Judgment reversed and case remanded with direction.

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