Amber Sigafoose v. Herbert Rhett Cobb

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 06, 2016
The Court of Appeals hereby passes the following order:
A17D0179. AMBER SIGAFOOSE v. HERBERT RHETT COBB.
On November 22, 2016, Amber Sigafoose filed this application for
discretionary appeal of the trial court’s July 18, 2016 temporary order awarding
Herbert Rhett Cobb sole physical and legal custody of the parties’ minor child. We,
however, lack jurisdiction.
Pursuant to OCGA § 5-6-34 (a) (11), “[a]ll judgments or orders in child
custody cases awarding, refusing to change, or modifying child custody” are directly
appealable. Therefore, a party seeking to challenge a child custody order, including
an interlocutory order, may file a direct appeal. Cohen v. Cohen, 300 Ga. App. 7, 8
(1) (684 SE2d 94) (2009); Lacy v. Lacy, 320 Ga. App. 739, 742 (3) (740 SE2d 695)
(2013). Ordinarily, when a party applies for discretionary review of a directly
appealable order, we grant the application. See 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 to be appealed. OCGA § 5-6-35 (d); Hill v State, 204 Ga. App.
582, 582 (420 SE2d 393) (1992). Here, Sigafoose filed her application 127 days after
the trial court’s order was entered.1 Because the application is untimely, it is hereby
1
Sigafoose also filed a pro se motion titled “Motion to Waive the Required 10
Day Filing,” in which she requests this Court to grant an out-of-time appeal. Pursuant
to OCGA § 5-6-39 (a) (5), this Court may grant an extension of time for filing an
application for discretionary appeal. Gable v. State, 290 Ga. 81, 84 (2) (a) (720 SE2d
170) (2011). 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 Gable, 290 Ga. at 84-85 (2) (a).
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/06/2016
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.
Furthermore, this Court has no authority to permit an out-of-time appeal at this
juncture, where the trial court has not determined whether Sigafoose is entitled to file
an out-of-time appeal. See e.g. In the Interest of B. R. F., 299 Ga. 294, 298-299 (788
SE2d 416) (2016).