Adis Numanovic v. Joseph Grant Jones

• Court: Court of Appeals of Georgia
• Decided: May 16, 2013
• Docket: A13A0183
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 16, 2013

In the Court of Appeals of Georgia A13A0183. NUMANOVIC v. JONES, et al.

RAY, Judge.

Appellees Joseph and Kara Jones filed a petition to adopt a minor child, J. J.,

in the Superior Court of Hart County. Appellant Adis Numanovic filed a petition for

legitimation in that same action, which the trial court denied as untimely. Several

months later, the trial court entered a final order granting the Jones’ petition to adopt.

Numanovic filed a direct appeal from that final adoption order, seeking review of the

order denying his petition for legitimation and the termination of his parental rights.

The Jones’ filed a motion to dismiss Numanovic’s appeal, arguing that the notice of

appeal was untimely as to the order denying legitimation and that a discretionary

application was required. Because we lack jurisdiction, this appeal is dismissed. The record shows that J. J. was born on July 6, 2011. The biological mother

executed documents surrendering her parental rights to the Joneses, the prospective

adoptive family. The mother also executed an affidavit identifying the biological

father of the child as Numanovic. On July 18, 2011, the Jones’ initiated a proceeding

to adopt J. J. and served Appellant with notice of the petition via a certified process

server on July 19, 2011. On August 15, 2011, Numanovic, pro se, filed a responsive

pleading that did not include a petition for legitimation or a notice of filing such

petition, but instead stated that he “would proceed” to file a petition for legitimation

and that he objected to the adoption of J. J. Appellant then obtained counsel and, on

October 5, 2011, filed a petition for legitimation within the same civil action

proceeding as the Jones’ adoption petition. The trial court then denied Appellant’s

petition for legitimation and further ordered that Appellant was “denied from

object[ing] to [the Jones’] [p]etition for [a]doption of the child.” The trial court

further denied Appellant’s motion for reconsideration of that ruling. The trial court

then entered a final order of adoption on January 13, 2012. Appellant filed the instant

notice of appeal on January 18, 2012.

2 The Joneses moved to dismiss this direct appeal, contending that this Court

lacks jurisdiction because Numanovic failed to file a discretionary application as

required by OCGA §5-6-35 (a) (12) and because his appeal was untimely.

Two Code sections determine the method for pursuing appeals to this Court

and to the Supreme Court of Georgia. OCGA § 5-6-34 describes the trial court

judgments and orders that may be appealed directly, including “[a]ll final

judgments[,]” such as the trial court’s final adoption order in the present case. OCGA

§ 5-6-34 (a) (1). OCGA § 5-6-35 lists cases in which an application for appeal is

required and includes “[a]ppeals from orders terminating parental rights.” OCGA §§

5-6-35 (a) (2), (a) (12). See also In the Interest of A. C., 285 Ga. 829, 834 (2) (686

SE2d 635) (2009).

Both OCGA § 5-6-34 (a) and 5-6-35 (a) are involved when, as here, a trial

court issues a judgment in a case covered by the direct appeal statute, but where the

subject matter may also be covered under the discretionary appeal statute. “Where

both the direct and discretionary appeal statutes are implicated, it is always the

underlying subject matter that will control whether the appeal must be brought

pursuant to OCGA § 5-6-34 or OCGA § 5-6-35.” Ferguson v. Composite State Bd.

of Medical Examiners, 275 Ga. 255, 256-257 (1) (564 SE2d 715) (2002). Accord

3 Avren v. Garten, 289 Ga. 186, 192 (7) (710 SE2d 130) (2011). Here, an examination

of Numanovic’s appellate brief shows enumerations of error addressing only the trial

court’s order denying his petition for legitimation and terminating his parental rights.

Because the underlying subject matter of this appeal – the denial of Numanovic’s

petition for legitimation and the termination of his parental rights – is listed in OCGA

§ 5-6-35 (a), Numanovic was required to follow discretionary appeal procedures.1 See

Cloud v. Norwood, __ Ga. App. __ (739 SE2d 93) (2013).

We further note that Georgia law requires that a petition for legitimation be

filed in a new civil proceeding with separate civil action number, and not within the

same civil action number as the underlying adoption proceeding. See Brewton v.

Poss, 316 Ga. App. 704, 704-706 (728 SE2d 837) (2012). Had Numanovic correctly

filed his petition for legitimation in a separate civil action, he clearly would have been

required to follow the discretionary review procedure set forth in OCGA § 5-6-35 in

order to appeal the trial court’s denial of his petition. OCGA § 5-6-35 (a) (2). He

cannot escape that requirement in this case because he incorrectly filed his petition

for legitimation in the same civil action as the Joneses petition for adoption.

1 Because our finding that Numanovic’s appeal is dismissed for failure to follow discretionary appeal procedures, we need not reach the issue of whether his appeal was timely filed.

4 Because the review of the trial court’s denial of Numanovic’s petition for

legitimation must come by discretionary application and Numanovic failed to file an

application, we are without jurisdiction to hear the merits of his appeal.

Appeal dismissed. Barnes, P. J., and Miller, J., concur.