Theodore Gray, II v. Regina Bailey

• Court: Court of Appeals of Georgia
• Decided: September 12, 2025
• Docket: A26A0269
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 12, 2025

The Court of Appeals hereby passes the following order:

A26A0269. THEODORE GRAY, II v. REGINA BAILEY.

In August 2022, the trial court issued an order granting the petition for legitimation filed by Theodore Gray, II, awarding him visitation, and requiring him to pay child support. In May 2025, Gray filed a motion to set aside the order on the basis that he did not receive proper notice of the hearing that led to it. The trial court denied the motion to set aside, and Gray filed this direct appeal. We lack jurisdiction. “Normally, appeals in legitimation cases must be initiated by filing an application for discretionary appeal. However, a party seeking to challenge a child custody order entered in a legitimation case may file a direct appeal.” In the Interest of N. C., 363 Ga. App. 398, 403 (1) (870 SE2d 569) (2022) (citation omitted); see also OCGA §§ 5-6-34 (a) (11) & 5-6-35 (a) (2). Nevertheless, “the ‘issue-raised-on-appeal’ rule applies to appeals from orders or judgments in child custody cases. This means that the proper appellate procedure to employ depends upon the issue involved in the appeal, even if the order or judgment being challenged on appeal was of the type listed in OCGA § 5-6-34 (a) (11) and was entered in a child custody case.” Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017). Here, even assuming that the trial court’s denial of Gray’s motion to set aside is a child custody order, Gray “has not directly challenged on appeal the court’s substantive ruling [on] custody. Indeed, he could not do so unless he first succeeded on his motion to set aside. This is an appeal from an order denying a motion to set aside the trial court’s order on the ground of inadequate notice of a hearing.” Voyles, 301 Ga. at 47. As custody is therefore not an issue on appeal in this domestic relations case under OCGA § 5-6-35 (a) (2) and as Gray failed to follow the discretionary application procedures set out in OCGA § 5-6-35, we hereby DISMISS this appeal. See id.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/12/2025 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.