Murphy v. Murphy
328 Ga. App. 767
Ga. Ct. App.2014Background
- Nancy Michelle Murphy and John Murphy divorced in 2006.
- John Murphy sought to modify child custody in 2012; custody evaluation pending.
- August 23, 2013 order held custody would not be changed and preserved status quo on visitation.
- September 10, 2013 order denied Murphy’s motion to disqualify the guardian ad litem.
- September 23, 2013 Murphy filed a notice of appeal asserting both the August 23 and September 10 orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over custody order and GAL order | Murphy properly invoked direct appeal for custody order and may challenge GAL order under pendent jurisdiction. | Only the custody order is directly appealable; GAL order cannot be reviewed here. | Yes; direct appeal proper for custody order and pendent review of GAL order available. |
| Ex parte claim and evidentiary rights at hearing | Murphy contends ex parte actions occurred and she was denied evidence. | No ex parte entry; hearing rights not violated; order aligns with record. | No reversible error; no ex parte entry; no harm shown. |
| Guardian ad litem decision not to disqualify | GAL improperly used funds and should be disqualified. | GAL acted within discretion; no improper conversion; no hearing required. | No abuse of discretion; arguments frivolous. |
| Frivolous appeal penalty | Appeal warranted to contest custody/ GAL rulings. | Appeal devoid of merit and frivolous. | Affirm sanctions; penalties imposed under Rule 15. |
Key Cases Cited
- Norman v. Ault, 287 Ga. 324 (2010) (limits on review under 5-6-34(d) when challenged orders follow appeal timing)
- Bloomfield v. Bloomfield, 282 Ga. 108 (2007) (challenge after judgment must align with timing rules)
- Cates v. Cates, 225 Ga. 612 (1969) (timing of appeals and related orders)
- Waters v. Chase Manhattan Bank, 308 Ga. App. 885 (2011) (precedent on pendent jurisdiction and related rulings)
- Costanzo v. Jones, 200 Ga. App. 806 (1991) (contemporaneous vs. subsequent orders and review scope)
- Sewell v. Cancel, 295 Ga. 235 (2014) (cross-appeal timing and adjudication of rulings issued after jurisdiction attached)
- Shore v. Shore, 253 Ga. 183 (1984) (duty to consider all facts up to judgment in custody cases)
- Rohatensky v. Woodall, 257 Ga. App. 801 (2002) (preservation of error and harm burden in appellate review)