James Cooper v. Patricia Cooper

• Court: Court of Appeals of Georgia
• Decided: May 12, 2022
• Docket: A22D0344
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 12, 2022

The Court of Appeals hereby passes the following order:

A22D0344. JAMES COOPER v. PATRICIA COOPER.

Since their divorce in April 2020, James Cooper and Patricia Cooper have litigated several motions for contempt. On June 29, 2021, the trial court entered an order in Patricia Cooper’s favor, ordering that the marital home be placed on the market for sale immediately and that James Cooper’s portion of the proceeds be reduced by the mortgage payments, interest, taxes, and insurance resulting from him placing the mortgage in forbearance. In the same order, the trial court ordered James Cooper to pay $20,790 in attorney fees for Patricia Cooper. James Cooper filed a motion for new trial, which he has failed to include with this application. The trial court denied the motion for new trial in an order entered on March 18, 2022. On April 17, 2022, James Cooper filed this application for discretionary appeal. An application for discretionary appeal must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). We lack jurisdiction to consider an untimely application. See Hill, supra. Although a motion for new trial may extend the time in which appellate relief may be sought, such motion must also be filed within 30 days of the entry of judgment. OCGA § 5-5-40 (a); OCGA § 5-6-35 (d). An untimely motion for new trial is void and does not toll the time for filing the application. See Wright v. Rhodes, 198 Ga. App. 269 (401 SE2d 35) (1990). Here, James Cooper has not included the motion for new trial with his application for discretionary appeal. Accordingly, we cannot determine whether the motion was timely filed, and thus whether it tolled the time for filing this application. As the applicant, James Cooper bears the burden of demonstrating that his application should be granted. See Harper v. Harper, 259 Ga. 246 (378 SE2d 673) (1989). Further, an applicant must include “a copy of any petition or motion which led directly to the order or judgment being appealed[.]” OCGA § 5-6-35 (c); Court of Appeals Rule 31 (e). By omitting the motion for new trial from his application materials, James Cooper has failed to demonstrate that this Court has jurisdiction to consider his application. Thus, this application for discretionary appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/12/2022 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.