Danny Ray Dunn v. Caryn Alissa Dunn ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 09, 2022
The Court of Appeals hereby passes the following order:
A22A0370. DANNY RAY DUNN v. CARYN ALISSA DUNN.
On December 15, 2020, the Superior Court of Dade County entered a Final
Order of Divorce for Danny Ray Dunn (the husband) and Caryn Alissa Dunn (the
wife). Within 30 days, the husband filed a motion for new trial. On July 1, 2021, the
superior court entered the order contested here, which order: (i) continued matters
outstanding in the case, including the motion for new trial; (ii) stated that the “[o]rder
filed December 15, 2020 . . . shall remain the Final Order of Divorce”; and (iii)
provided further,
[P]ending this continuance period, as well as pending any decision
and/or ruling on the Motion for New Trial as well as pending any appeal
involving this divorce matter, or any matter relating thereto, the Final
Order of Divorce entered on December 15, 2020, shall be considered to
be the Temporary Order, and shall govern the obligations of the parties
pending any final resolution until full conclusion of this matter, or until
further Order.
Seeking appellate review of that order, the husband filed a discretionary application.
See generally OCGA § 5-6-35 (a) (2), (b) (providing that appeals from judgments or
orders in divorce, alimony, and other domestic relations cases must be brought by
discretionary application); Russo v. Manning, 252 Ga. 155, 155 (312 SE2d 319)
(1984) (where the issues appealed either arise from or are ancillary to divorce
proceedings, the appeal falls within the ambit of the discretionary appeal statute).
1
This Court granted that application, leading to the docketing of this appeal.
With the full record now before us,1 together with the parties’ briefs, we
conclude that we lack jurisdiction. The husband’s motion for new trial remains
pending; and the contested order is neither final2 nor appealable in its own right.3
Therefore, in order to appeal from the July 1, 2021 order, the husband was required
to comply with the interlocutory appeal procedures of OCGA § 5-6-34 (b). See Hann
v. State, 292 Ga. App. 719, 720 (1) (665 SE2d 731) (2008); Drake v. Clutter, 194 Ga.
App. 644, 645 (391 SE2d 473) (1990). Moreover, OCGA § 5-6-35, the discretionary
appeal statute, does not excuse a party seeking appellate review of an interlocutory
order from complying with the additional requirements of OCGA § 5-6-34 (b). See
Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996). The husband’s failure to
comply with the interlocutory appeal procedures deprives this Court of jurisdiction
over this appeal.
1
Notably, the instant appeal is related to Case Nos. A21A1776, A21A1777,
and A21A1778, each of which is styled Danny Ray Dunn v. Caryn A. Dunn. See
generally Davis v. State, 287 Ga. 414, 415, n. 1 (696 SE2d 644) (2010) (reiterating
that an appellate court “may take judicial notice of the records of other cases before
[it], in the interest of doing substantial justice and as a means of judicial economy”).
2
Thomas v. Douglas County, 217 Ga. App. 520, 522 (1) (457 SE2d 835)
(1995) (“[A]n order is final and appealable when it leaves no issues remaining to be
resolved, constitutes the court’s final ruling on the merits of the action, and leaves the
parties with no further recourse in the trial court.”).
3
See, e.g., OCGA § 5-6-34 (a) (2) (concerning contempt cases) and (a) (11)
(concerning child custody cases); but see, e.g., Voyles v. Voyles, 301 Ga. 44, 47 (799
SE2d 160) (2017) (explaining that an appeal from an order denying a motion to set
aside was not a direct challenge to the court’s underlying custody ruling and therefore
was not directly appealable under OCGA § 5-6-34 (a) (11)).
2
Accordingly, this appeal is hereby DISMISSED. See Bailey, 266 Ga. at 833.4
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/09/2022
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.
4
See Hamryka v. City of Dawsonville, 291 Ga. 124, 124-125 (728 SE2d 197)
(2012) (dismissing appeal after docketing upon notice of appeal, where appellant
failed to comply with the governing application process).
3