Alena McAllister v. Thomas Boyd Tyson, III ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 24, 2020
The Court of Appeals hereby passes the following order:
A21D0113. ALENA MCALLISTER v. THOMAS BOYD TYSON, III.
On October 6, 2020, the trial court entered an order modifying Alena
McAllister’s visitation rights with her child. McAllister then filed this pro se
application for discretionary appeal on November 6, 2020. Thomas Boyd Tyson, III
has filed a motion to dismiss.
Under OCGA § 5-6-34 (a) (11), direct appeals are permitted from “[a]ll
judgments or orders in child custody cases awarding, refusing to change, or
modifying child custody or holding or declining to hold persons in contempt of such
child custody judgment or orders.” And visitation rights are a part of custody. Vines
v. Vines, 292 Ga. 550, 551 (2) (739 SE2d 374) (2013). Thus, the order McAllister
seeks to appeal is directly appealable.
This Court ordinarily will grant an application for discretionary review of a
directly appealable order under OCGA § 5-6-35 (j). To fall within this general rule,
however, the application must be filed within 30 days of entry of the order or
judgment sought to be appealed. See OCGA § 5-6-35 (d), (j). The requirements of
OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for
appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734, 734
(380 SE2d 57) (1989). Here, McAllister’s application was filed 31 days after the entry
of the order she seeks to appeal, and is therefore untimely.
On November 17, 2020, McAllister filed a pro se “Motion for Extension of
Time to File Application for Appellate Review,” asking this Court to consider her
untimely application. Under OCGA § 5-6-39 (a) (5), this Court may grant an
extension of time for filing an application for discretionary appeal. See Gable v. State,
290 Ga. 81, 84-85 (2) (a) (720 SE2d 170) (2011); accord Court of Appeals Rule 16
(c). The request for an extension, however, “must be made before expiration of the
period for filing as originally prescribed or as extended by a permissible previous
order.” OCGA § 5-6-39 (d); see also Court of Appeals Rule 31 (i); Gable, 290 Ga. at
84-85 (2) (a). McAllister’s request for an extension of time in which to file an
application for discretionary appeal is untimely. See OCGA §§ 5-6-35 (d); 5-6-39 (d);
Court of Appeals Rule 31 (i); Gable, 290 Ga. at 84-85 (2) (a).
Consequently, McAllister’s motion for an extension of time in which to file an
application for discretionary appeal is hereby DENIED. Tyson’s motion to dismiss
the untimely application is GRANTED, and McAllister’s application for discretionary
appeal is hereby DISMISSED for lack of jurisdiction. See Boyle, 190 Ga. App. at
734.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/24/2020
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.