McKenzie v. McKenzie , 225 Ga. 314 ( 1969 )

225 Ga. 314 (1969) 168 S.E.2d 152

McKENZIE
v.
McKENZIE.

25167.

Supreme Court of Georgia.

Submitted May 13, 1969. Decided May 22, 1969.

Rary & Rambo, J. C. Rary, for appellant.

Joe R. Edwards, M. T. Hartman, III, for appellee.

MOBLEY, Justice.

In a divorce, alimony, and custody proceeding where each parent sought temporary and permanent custody of their minor children, the court at an interlocutory hearing entered an order reciting that, "after hearing the evidence in said matter ... custody and control of the minor children ... is hereby awarded to the defendant [father]," with visitation rights in the mother. The mother appealed from this judgment, enumerating as error the grant of custody to the father.

The Appellate Practice Act of 1965 (Ga. L. 1965, p. 18), as amended by Ga. L. 1968, pp. 1072, 1073 (Code Ann. § 6-701), makes no provision for an appeal from an order or judgment awarding temporary custody of minor children. The Act provides for appeal in the following instances: "(1) Where the judgment is final — that is to say — where the cause is no longer pending in the court below," and "(3) ... from all judgments or orders granting or refusing to grant applications for alimony, either temporary or permanent..." The judgment awarding custody to the father is not a final judgment, as the cause is still pending in the trial court, and the Act does not provide for an appeal from the grant or denial of temporary custody of children. This is not an appealable judgment.

Appeal dismissed. All the Justices concur.