WHOLE COURT
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. http://www.gaappeals.us/rules/
July 12, 2013
In the Court of Appeals of Georgia A13A0206. MURPHY v. MURPHY.
MCFADDEN, Judge.
Nancy Michelle Murphy appeals an interlocutory order denying her motion to
recuse the trial court judge in this change-of-custody case. Because we lack
jurisdiction, we dismiss the appeal.
Nancy Murphy and John Murphy were divorced in 2006. In 2012, John
Murphy filed this action, seeking to modify the child custody provisions of the
parties’ divorce decree. The case was assigned to Judge A. Quillian Baldwin, Jr.
Nancy Murphy moved to disqualify Judge Baldwin. Judge Baldwin denied the
motion, and Nancy Murphy filed a notice of appeal. The case remains pending below.
“This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.”
(Citation omitted.) Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d 801) (2012). Under the version of OCGA § 5-6-34 (a) (11) in effect when Nancy Murphy
filed her notice of appeal, a party could file a direct appeal from “[a]ll judgments or
orders in child custody cases including, but not limited to, awarding or refusing to
change child custody. . . .” See generally Collins v. Davis, 318 Ga. App. 265, 268-269
& n. 17 (1) (733 SE2d 798) (2012) (holding that clear and unambiguous language of
former OCGA § 5-6-34 (a) (11) authorized direct appeal of any order in proceeding
in which child’s legal custody, physical custody or visitation was an issue, and noting
that it was for legislature to narrow scope of this right of direct appeal). Such orders
were no longer subject to the interlocutory appeal procedures of OCGA § 5-6-34 (b)
or the discretionary appeal procedures of OCGA § 5-6-35 (a) (2). See Taylor v. Curl,
298 Ga. App. 45 (679 SE2d 80) (2009).
Effective May 6, 2013, however, the legislature amended OCGA § 5-6-34 (a)
(11) to provide that a party can file a direct appeal from “[a]ll judgments or orders in
child custody cases awarding, refusing to change, or modifying child custody. . . .”
SB 204 §§ 1, 2 (2013). The uncodified preamble to the amendment states that its
purpose is “to limit the scope of judgments or orders in child custody cases which are
subject to direct appeal.” And although laws that affect substantive rights apply
prospectively only, procedural laws, which prescribe the methods of enforcement of
2 rights, duties, and obligations, apply retroactively. Nathans v. Diamond, 282 Ga. 804,
808-809 (2) (654 SE2d 121) (2007). “[W]here a statute governs only procedure of the
courts . . . it is to be given retroactive effect absent an expressed contrary intention.”
Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988).
Nancy Murphy filed her notice of appeal from the order denying her motion to
recuse. That order does not award, refuse to change, or modify child custody.
Consequently, the order is not appealable under OCGA § 5-6-34 (a) (11), we lack
jurisdiction, and the appeal must be dismissed. See Stevens v. State, 292 Ga. 218 (734
SE2d 743) (2012) (dismissing direct appeals from trial court’s denial of the
defendants’ motions to dismiss the indictment due to an alleged constitutional speedy
trial violation because eight days before, the Supreme Court had determined that such
orders were no longer directly appealable but had to follow the interlocutory
application procedures).
To the extent that Nancy Murphy argues that we have jurisdiction over her
appeal because orders denying motions to recuse are directly appealable under the
collateral order doctrine, we disagree. The Georgia Supreme Court has held that a
party who wants to appeal a pretrial ruling on a recusal motion has the option to seek
an interlocutory appeal or to appeal directly after an adverse final judgment See White
3 v. Lumpkin, 272 Ga. 398 (529 SE2d 879) (2000); Chandler v. Davis, 269 Ga. 727,
728 (504 SE2d 440) (1998). We, too, have held that the appeal of an interlocutory
order denying a motion to recuse “requires compliance with the interlocutory appeal
provisions of OCGA § 5-6-34 (b).” (Citation omitted.) Ellis v. Stanford, 256 Ga. App.
294, 295 (2) (568 SE2d 157) (2002). See also Rolleston v. Glynn County Bd. of Tax
Assessors, 213 Ga. App. 552, 553 (445 SE2d 345) (1994); In re Booker, 186 Ga. App.
614 (367 SE2d 850) (1988).
In fact, the interlocutory appeal provision of OCGA § 5-6-34 (b) explicitly
provides that:
Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted.
(Emphasis supplied.)
4 Nonetheless, in Braddy v. State, 316 Ga. App. 292 (729 SE2d 461) (2012),
without acknowledging the prior cases or the language of OCGA § 5-6-34 (b), we
held that an order denying a motion to recuse met the requirements for application of
the collateral order doctrine because the ruling
concern[ed] a matter wholly unrelated to the basic issues to be decided in the [underlying] case. Whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment. Finally, the order resolve[d] the matter completely and nothing remain[ed] in the underlying case to affect it.
Id. at 293 (1). This holding misapplied the collateral order doctrine and directly
conflicted with OCGA § 5-6-34 (b)’s explicit inclusion of “the denial of a defendant’s
motion to recuse in a criminal case” in the category of orders needing a certificate of
immediate review, thereby rendering the provision meaningless.
In Scroggins v. Edmondson, 250 Ga. 430, 431-432 (1) (c) (297 SE2d 469)
(1982), our Supreme Court adopted the test from Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (69 SCt 1221, 93 LE 1528) (1949), for determining whether an
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WHOLE COURT
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. http://www.gaappeals.us/rules/
July 12, 2013
In the Court of Appeals of Georgia A13A0206. MURPHY v. MURPHY.
MCFADDEN, Judge.
Nancy Michelle Murphy appeals an interlocutory order denying her motion to
recuse the trial court judge in this change-of-custody case. Because we lack
jurisdiction, we dismiss the appeal.
Nancy Murphy and John Murphy were divorced in 2006. In 2012, John
Murphy filed this action, seeking to modify the child custody provisions of the
parties’ divorce decree. The case was assigned to Judge A. Quillian Baldwin, Jr.
Nancy Murphy moved to disqualify Judge Baldwin. Judge Baldwin denied the
motion, and Nancy Murphy filed a notice of appeal. The case remains pending below.
“This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.”
(Citation omitted.) Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d 801) (2012). Under the version of OCGA § 5-6-34 (a) (11) in effect when Nancy Murphy
filed her notice of appeal, a party could file a direct appeal from “[a]ll judgments or
orders in child custody cases including, but not limited to, awarding or refusing to
change child custody. . . .” See generally Collins v. Davis, 318 Ga. App. 265, 268-269
& n. 17 (1) (733 SE2d 798) (2012) (holding that clear and unambiguous language of
former OCGA § 5-6-34 (a) (11) authorized direct appeal of any order in proceeding
in which child’s legal custody, physical custody or visitation was an issue, and noting
that it was for legislature to narrow scope of this right of direct appeal). Such orders
were no longer subject to the interlocutory appeal procedures of OCGA § 5-6-34 (b)
or the discretionary appeal procedures of OCGA § 5-6-35 (a) (2). See Taylor v. Curl,
298 Ga. App. 45 (679 SE2d 80) (2009).
Effective May 6, 2013, however, the legislature amended OCGA § 5-6-34 (a)
(11) to provide that a party can file a direct appeal from “[a]ll judgments or orders in
child custody cases awarding, refusing to change, or modifying child custody. . . .”
SB 204 §§ 1, 2 (2013). The uncodified preamble to the amendment states that its
purpose is “to limit the scope of judgments or orders in child custody cases which are
subject to direct appeal.” And although laws that affect substantive rights apply
prospectively only, procedural laws, which prescribe the methods of enforcement of
2 rights, duties, and obligations, apply retroactively. Nathans v. Diamond, 282 Ga. 804,
808-809 (2) (654 SE2d 121) (2007). “[W]here a statute governs only procedure of the
courts . . . it is to be given retroactive effect absent an expressed contrary intention.”
Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988).
Nancy Murphy filed her notice of appeal from the order denying her motion to
recuse. That order does not award, refuse to change, or modify child custody.
Consequently, the order is not appealable under OCGA § 5-6-34 (a) (11), we lack
jurisdiction, and the appeal must be dismissed. See Stevens v. State, 292 Ga. 218 (734
SE2d 743) (2012) (dismissing direct appeals from trial court’s denial of the
defendants’ motions to dismiss the indictment due to an alleged constitutional speedy
trial violation because eight days before, the Supreme Court had determined that such
orders were no longer directly appealable but had to follow the interlocutory
application procedures).
To the extent that Nancy Murphy argues that we have jurisdiction over her
appeal because orders denying motions to recuse are directly appealable under the
collateral order doctrine, we disagree. The Georgia Supreme Court has held that a
party who wants to appeal a pretrial ruling on a recusal motion has the option to seek
an interlocutory appeal or to appeal directly after an adverse final judgment See White
3 v. Lumpkin, 272 Ga. 398 (529 SE2d 879) (2000); Chandler v. Davis, 269 Ga. 727,
728 (504 SE2d 440) (1998). We, too, have held that the appeal of an interlocutory
order denying a motion to recuse “requires compliance with the interlocutory appeal
provisions of OCGA § 5-6-34 (b).” (Citation omitted.) Ellis v. Stanford, 256 Ga. App.
294, 295 (2) (568 SE2d 157) (2002). See also Rolleston v. Glynn County Bd. of Tax
Assessors, 213 Ga. App. 552, 553 (445 SE2d 345) (1994); In re Booker, 186 Ga. App.
614 (367 SE2d 850) (1988).
In fact, the interlocutory appeal provision of OCGA § 5-6-34 (b) explicitly
provides that:
Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted.
(Emphasis supplied.)
4 Nonetheless, in Braddy v. State, 316 Ga. App. 292 (729 SE2d 461) (2012),
without acknowledging the prior cases or the language of OCGA § 5-6-34 (b), we
held that an order denying a motion to recuse met the requirements for application of
the collateral order doctrine because the ruling
concern[ed] a matter wholly unrelated to the basic issues to be decided in the [underlying] case. Whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment. Finally, the order resolve[d] the matter completely and nothing remain[ed] in the underlying case to affect it.
Id. at 293 (1). This holding misapplied the collateral order doctrine and directly
conflicted with OCGA § 5-6-34 (b)’s explicit inclusion of “the denial of a defendant’s
motion to recuse in a criminal case” in the category of orders needing a certificate of
immediate review, thereby rendering the provision meaningless.
In Scroggins v. Edmondson, 250 Ga. 430, 431-432 (1) (c) (297 SE2d 469)
(1982), our Supreme Court adopted the test from Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (69 SCt 1221, 93 LE 1528) (1949), for determining whether an
order falls within the collateral order doctrine. Under that test, the collateral order
doctrine applies if the order (1) completely and conclusively decides the issue on
appeal such that nothing in the underlying action can affect it; (2) resolves an issue
5 that is substantially separate from the basic issues in the complaint; and (3) might
result in the loss of an important right if review had to await final judgment, making
the order effectively unreviewable on appeal. See Scroggins, 250 Ga. at 432 (1) (c).
Braddy misapplied the “effectively unreviewable” prong of the test.
In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (101 SCt 669, 66
LEd2d 571) (1981), the United States Supreme Court stressed the stringency of the
“effectively unreviewable” prong of the Cohen test: “To be appealable as a final
collateral order, the challenged order must constitute a complete, formal, and, in the
trial court, final rejection, of a claimed right where denial of immediate review would
render impossible any review whatsoever.” (Emphasis supplied; citations and
punctuation omitted.) Id. at 376. In Braddy, we held that this prong was satisfied
because “[w]hether the trial judge could properly preside over the case would be
unresolved if review had to await final judgment.” Braddy, 316 Ga App. at 293 (1).
But orders denying motions to recuse may be reviewed and relief afforded after the
entry of final judgment. In Johnson v. State, 278 Ga. 344, 349 (3) (602 SE2d 623)
(2004), for example, the Supreme Court reversed a defendant’s convictions for felony
murder and related crimes because the trial court should have granted her motion to
recuse. In Gillis v. City of Waycross, 247 Ga. App. 119, 122 (543 SE2d 423) (2000),
6 an appeal of a final judgment entered after a three-day trial, we remanded the case so
that a different judge could consider the plaintiffs’ motion to recuse. Because review
after entry of final judgment of orders denying motions to recuse can protect parties’
interests adequately, such orders are not appealable as collateral orders. And to hold
otherwise ignores the explicit language of OCGA § 5-6-34 (b). We therefore overrule
Braddy, 316 Ga. App. at 292.
Other courts that have considered the issue generally have held that the
collateral order exception to the final judgment rule does not encompass an order
denying a motion to recuse because the parties’ interests can be protected adequately
in an appeal from a final judgment. See, e.g., In re Martinez-Catala, 129 F.3d 213,
217 (II) (1st Cir. 1997); In re Corrugated Container Antitrust Litigation, 614 F.2d
958, 960-961 (I) (5th Cir. 1980); State of Florida v. Countrywide Truck Ins. Agency,
703 NW2d 905 (Neb. 2005); State v. Forte, 553 A.2d 564, 565 (Vt. 1988); Kreig v.
Krieg, 743 A2d 509, 511 & n.4 (Pa. Super. 1999). In other words, because recusal
questions are fully reviewable on appeal from a final judgment, the collateral order
doctrine does not apply.
Appeal dismissed. Phipps, C.J., Andrews, P.J., Barnes, P.J., Ellington, P.J.,
Doyle, P.J., Miller, Dillard, Boggs, Ray, Branch and McMillian, JJ., concur.