Scruggs v. Georgia Department of Human Resources

408 S.E.2d 103, 261 Ga. 587, 1991 Ga. LEXIS 397

• Court: Supreme Court of Georgia
• Decided: September 6, 1991
• Docket: S91A0707
• Status: Published

Opinions

Smith, Presiding Justice.

We granted the appellant’s discretionary application; however, the Department of Human Resources (DHR) contends that the application should not have been granted, the appeal should be dismissed, and this Court should overrule Straus v. Straus, 260 Ga. 327 (393 SE2d 248) (1990), the case that enticed the appellant to appeal an interlocutory order without following the interlocutory-application subsection. OCGA § 5-6-34 (b).

1. Straus v. Straus, supra, held that the discretionary application statute, OCGA § 5-6-35 (b), controls an interlocutory application in a domestic relations case. The DHR argues that the interlocutory-application subsection, OCGA § 5-6-34 (b), must be obeyed and cites Court of Appeals opinions that hold that the interlocutory-application statute should be followed when a party seeks to have an interlocutory order reviewed. Rogers v. Dept. of Human Resources, 195 Ga. App. 118 (392 SE2d 713) (1990) (cert. denied); Neal v. State, 182 Ga. App. 37 (354 SE2d 664) (1987); see English v. Tucker Federal Sav. &c. Assn., 175 Ga. App. 69 (332 SE2d 365) (1985). See also Smith, Justice, Appeals in Domestic Relations Cases From the Court’s Point of View, Spring 1987, Pub. No. 136, Georgia State University College of Law Center for Continuing Legal Education, at 4; and 27 Ga. State Bar Journal Vol. 27, No. 3, at 135, Let’s Revise Appellate Procedure in Georgia.

The interlocutory-application subsection, OCGA § 5-6-34 (b), granted trial courts the authority to certify for immediate appellate review, orders, decisions, or judgments that were not otherwise subject to direct appeal. When the General Assembly enacted the statute, it empowered trial courts to certify any order that it determined was of “such importance to the case that immediate review should be had. . . .” OCGA § 5-6-34 (b). This unfettered discretion has been designated “carte blanche authority.” Lee v. Smith, 119 Ga. App. 808-809 (168 SE2d 880) (1969). Additionally, there are no “clearly delineated specifications or ascertainable . . .” standards for appellate review. Id. For these reasons this Court has held that it “will not review the discretion vested in the trial court in granting or refusing a certificate for immediate review of interlocutory rulings.” Houser v. State, 234 Ga. 209, 212 (214 SE2d 893) (1975).

The discretionary-application statute, OCGA § 5-6-35, was enacted to ameliorate the appellate courts’ massive case loads. C & S Nat. Bank v. Rayle, 246 Ga. 727, 729-730 (273 SE2d 139) (1980). The discretionary-application statute requires certain cases (domestic relations cases included) to come to the appellate courts by “application for appeal.” OCGA § 5-6-35 (a) (2). This Court in C & S, supra at 730 stated:

The clear intent of [OCGA § 5-6-35 (a) (2)] . . . was to give the appellate courts . . . the discretion not to entertain an appeal where the superior or juvenile court had made a decision as to divorce, alimony, child custody or contempt, the latter three of which are in large part discretionary and yet frequently appealed by the losing spouse.

Looking to the express language of the statutes, we find that the discretionary-application statute requires a party to state if the order or judgment is interlocutory, and if it is interlocutory, the party must state “the need for interlocutory appellate review.” (Emphasis supplied.) OCGA § 5-6-35 (b). The interlocutory-application subsection, OCGA § 5-6-34 (b), sets forth the procedure for seeking “interlocutory appellate review.” The discretionary-application statute “does not relieve appellant [who seeks review of an interlocutory order] of the requirement of a certificate from the trial judge.” Rogers, supra, Ga. App. at 119.

Division 1 of the Straus decision does violence to the legislative intent by stripping control from the trial courts. The legislature did not intend for parties to regulate litigation. Allowing parties involved in divorce actions absolute authority to seek appellate review of interlocutory orders will produce unnecessary delays in the trial courts and breed fragmented and piecemeal appeals. We expressly overrule Division 1 of Straus and hold that the discretionary-application statute, OCGA § 5-6-35, does not allow a party to ignore the interlocutory-application subsection, OCGA § 5-6-34 (b), when attempting to obtain appellate review.

Furthermore, the certificate of immediate review is not “surplus-age.” Straus, supra. The certificate is an essential component of a trial court’s power to control litigation. Therefore, a party seeking appellate review from an interlocutory order must follow the interlocutory-application subsection, OCGA § 5-6-34 (b), seek a certificate of immediate review from the trial court, and comply with the time limitations therein.

2. The appellant argues that the trial court erred in denying his motion to dismiss and in holding that- the DHR was authorized to bring an action on behalf of the appellant’s two minor children to modify his support obligation to them. We find no error.

Judgment affirmed.

All the Justices concur, except Bell, J., who dissents.