Richard Boles Johnston III v. Lisa Thomson Johnston

• Court: Court of Appeals of Georgia
• Decided: April 11, 2017
• Docket: A17D0339
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 06, 2017

The Court of Appeals hereby passes the following order:

A17D0339. RICHARD BOLES JOHNSTON III v. LISA THOMSON JOHNSTON.

Richard Boles Johnston III seeks a discretionary appeal to challenge orders relating to his child support obligations. For reasons explained below, this application is dismissed as barred by the doctrine of res judicata and as untimely filed. Pursuant to his divorce decree, Johnston was ordered to pay his former wife a specified amount of money as child support. Thereafter, in August 2015, Johnston filed in superior court a petition to downwardly modify his child support obligations. After conducting hearings, the superior court entered an order that increased his child support obligations and a separate order awarding his former wife attorney fees and litigation expenses. Johnston filed a motion for a new trial. The superior court conducted a hearing, then denied that motion by order entered in December 2016. Later that month, Johnston filed in the Georgia Supreme Court a discretionary application seeking to appeal: (i) the child support modification order, and (ii) the order awarding attorney fees and litigation expenses to his former wife. The application, docketed as Case No. S17D0849, was denied by the Georgia Supreme Court on January 30, 2017. After remittitur was entered in the superior court,1 Johnston filed on March 13, 2017 the instant application seeking from this Court a discretionary appeal to

1 Johnston points out that he filed the instant discretionary application within 30 days of the remittitur being entered in the superior court; that time line is not material, however, given the circumstances of this case. challenge the same orders: (i) the child support modification order; and (ii) the order awarding attorney fees and litigation expenses to his former wife. This application is not viable, however, for two reasons. First, the Georgia Supreme Court’s denial of Johnston’s application for discretionary appeal in Case No. S17D0849 constituted an adjudication on the merits; hence, the “order denying [Johnston’s] application is res judicata with respect to the substance of the requested review” here. Northwest Social and Civic Club v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003); see also Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666, 670 (4) (745 SE2d 846) (2013); Hook v. Bergen, 286 Ga. App. 258, 260-261 (1) (649 SE2d 313) (2007). Second, this application is untimely. An application for discretionary appeal must be filed within 30 days of the entry of the order or judgment to be appealed. OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). This application was filed more than 30 days after entry of the child support modification order, the order awarding attorney fees and litigation expenses to Johnston’s former wife, and the order denying Johnston’s motion for a new trial. For the foregoing reasons, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/06/2017 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.