Kirsten Burcham McClain v. Michael Anthony McClain

• Court: Court of Appeals of Georgia
• Decided: June 1, 2023
• Docket: A23D0327
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 01, 2023

The Court of Appeals hereby passes the following order:

A23D0327. KIRSTEN BURCHAM MCCLAIN v. MICHAEL ANTHONY MCCLAIN.

Kirsten Burcham McClain and Michael Anthony McClain were divorced on September 9, 2022 pursuant to a final judgment and decree of divorce that addressed custody of the couple’s three minor children. «Exh. 1» Also on September 9, the trial court entered a parenting plan and an order denying Kirsten’s motion seeking to hold Michael in contempt. «Exhs. 4, 6» On September 29, 2022, Kirsten filed a motion that both sought a new trial in the divorce action and also requested reconsideration of the final judgment and decree of divorce, the parenting plan, and the contempt order. «Exh. 2» Kirsten subsequently withdrew her new trial motion, and the trial court proceeded with a hearing on the motion for reconsideration. «See Order» Following that hearing, the trial court entered an order denying the motion for reconsideration as to all three of the September 9, 2022 orders. Kirsten then filed this application for discretionary appeal. We, however, lack jurisdiction. To be timely, a discretionary application must be filed within 30 days of the entry of the order, decision, or judgment sought to be appealed. OCGA § 5-6-35 (d). This statutory deadline is jurisdictional, and this Court cannot accept an application for appeal not made in compliance with OCGA § 5-6-35 (d). See In the Interest of B. R. F., 299 Ga. 294, 298 (788 SE2d 416) (2016) (holding that an appellate court lacks jurisdiction over an untimely application for discretionary appeal); Hair Restoration Specialists v. State of Georgia, 360 Ga. App. 901, 903 (862 SE2d 564) (2021) (compliance with the discretionary appeals procedure is jurisdictional, and failure to comply with that procedure requires dismissal of the appeal). Moreover, the denial of a motion for reconsideration of an appealable order or judgment is not itself appealable and the filing of a motion for reconsideration does not extend the time for filing a discretionary application for appeal. See Wright v. Wright, 367 Ga. App. 15, 17, n.2 (884 SE2d 610) (2023); Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000). Because Kirsten McClain filed her application nine months after entry of the orders she seeks to appeal, we lack jurisdiction to consider it. Accordingly, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/01/2023 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.