Bailey v. Bailey

471 S.E.2d 213, 266 Ga. 832, 96 Fulton County D. Rep. 2068, 1996 Ga. LEXIS 345

• Court: Supreme Court of Georgia
• Decided: June 3, 1996
• Docket: S96A0379
• Status: Published

Opinions

Hines, Justice.

This case concerns the proper method for pursuing appeals when both the discretionary appeal and interlocutory appeal statutes are implicated. The wife filed for divorce and, pursuant to OCGA § 19-6-3, sought temporary alimony. After a hearing, the superior court awarded the wife $500 per month. The husband filed an application with this Court, pursuant to OCGA § 5-6-35 (a) (2), seeking discretionary appeal from the trial court’s award of temporary alimony. We granted the application to consider whether a party seeking appellate review of an order awarding temporary alimony must comply with the interlocutory appeal procedure of OCGA § 5-6-34 (b). We conclude that the interlocutory appeal procedure must be followed.

Both OCGA §§ 5-6-35 and 5-6-34 (b) are involved when, as here, a trial court issues an order awarding temporary alimony. OCGA § 5-6-35 lists cases in which an application for appeal is required and includes “[ajppeals from judgments or orders . . . granting or refusing . . . temporary or permanent alimony . . . .” OCGA § 5-6-35 (a) (2). However, an order awarding temporary alimony is interlocutory and, therefore, subject to the requirements of the interlocutory appeal procedure of OCGA § 5-6-34 (b). See OCGA § 19-6-3; Ritchea v. Ritchea, 242 Ga. 524 (250 SE2d 435) (1978); Gray v. Gray, 226 Ga. 767, 768 (2) (177 SE2d 575) (1970). OCGA § 5-6-34 (b) requires parties seeking appellate review of orders, decisions, or judgments that are not otherwise subject to direct appeal to seek a certificate of immediate review from the trial court and comply with the appropriate time limitations.

In Scruggs v. Ga. DHR, 261 Ga. 587 (408 SE2d 103) (1991), this Court overruled Straus v. Straus, 260 Ga. 327 (1) (393 SE2d 248) (1990), which held that the discretionary appeal statute, OCGA § 5-6-35, controls interlocutory applications in domestic relations cases. We concluded that:

The legislature did not intend for parties to regulate litigation. Allowing parties involved in divorce actions absolute authority to seek appellate review of interlocutory orders will produce unnecessary delays in the trial courts and breed fragmented and piecemeal appeals. We expressly overrule Division 1 of Straus and hold that the discretionary-application statute, OCGA § 5-6-35, does not allow a party to ignore the interlocutory-application subsection, OCGA § 5-6-34 (b), when attempting to obtain appellate review.

Furthermore, the certificate of immediate review is not “surplusage.” Straus, supra. The certificate is an essential component of a trial court’s power to control litigation. Therefore, a party seeking appellate review from an interlocutory order must follow the interlocutory-application subsection, OCGA § 5-6-34 (b), seek a certificate of immediate review from the trial court, and comply with the time limitations therein.

Scruggs, supra at 588-589.

The husband contends that the holding in Scruggs is not applicable here, because the discretionary application statute expressly provides that an order granting or denying temporary alimony is appeal-able pursuant to OCGA § 5-6-35 (a) (2), and that the legislature, therefore, intended temporary alimony to fall exclusively under the discretionary appeal statute, OCGA § 5-6-35. The contention is unavailing.

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 OCGA § 5-6-35 (b); Rebich v. Miles, 264 Ga. 467, 469, n. 2 (448 SE2d 192) (1994); Scruggs, supra at 588. Thus, a party appealing an interlocutory order must comply with the requirements of OCGA § 5-6-34 (b), irrespective of whether the appeal is brought pursuant to OCGA § 5-6-35. Because review of the trial court’s order awarding temporary alimony must be by way of OCGA § 5-6-34 (b), and the husband failed to follow the required interlocutory procedure, we are without jurisdiction to hear the merits of his appeal.

Appeal dismissed.

All the Justices concur, except Carley, J., who concurs specially.