Darryl P. Butler v. Tabatha P. Butler

• Court: Court of Appeals of Georgia
• Decided: July 3, 2024
• Docket: A24A1680
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 03, 2024

The Court of Appeals hereby passes the following order:

A24A1680. DARRYL P. BUTLER v. TABATHA P. BUTLER.

In July 2009, the trial court entered a final judgment and decree of divorce in the divorce action between Darryl P. Butler and Tabatha P. Butler. In April 2024, Darryl Butler filed a motion to set aside the divorce decree pursuant to OCGA § 9-11-60 (d). The trial court denied the motion on April 30, 2024, and Darryl Butler filed a notice of appeal seeking to appeal that order on June 11, 2024. We lack jurisdiction for three reasons. First, a notice of appeal must be filed within 30 days of entry of the judgment or trial court order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Redford v. State, 357 Ga. App. 247, 250 (850 SE2d 447) (2020). Darryl Butler’s notice of appeal is untimely, as it was filed 42 days after entry of the order on appeal. Second, appeals from “judgments or orders in divorce, alimony, and other domestic relations cases” must be made by application for discretionary appeal. OCGA § 5-6-35 (a) (2). Third, the denial of a motion to set aside a final judgment under OCGA § 9-11-60 (d) also must be made by application for discretionary appeal. See OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116, 116 (640 SE2d 688) (2006). “Compliance with the discretionary appeals procedure is jurisdictional.” Hair Restoration Specialists v. State of Georgia, 360 Ga. App. 901, 903 (862 SE2d 564) (2021) (punctuation omitted); Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Thus, Darryl Butler’s failure to follow the discretionary appeals procedure also deprives us of jurisdiction over this direct appeal. For these reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/03/2024 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.