Richard Boles Johnston III v. Lisa Thomson Johnston
A17D0339
| Ga. Ct. App. | Apr 11, 2017Background
- Johnston and his ex-wife were subject to a divorce decree requiring Johnston to pay a fixed child support amount.
- In August 2015 Johnston petitioned the superior court to downwardly modify his child support.
- After hearings the superior court entered an order increasing Johnston’s child support and a separate order awarding attorney fees and litigation expenses to his former wife.
- Johnston moved for a new trial; the superior court held a hearing and denied that motion in December 2016.
- Johnston filed a discretionary application to the Georgia Supreme Court challenging the child-support modification and the fee award; the Supreme Court denied review on January 30, 2017.
- After remittitur Johnston filed this Court of Appeals discretionary-appeal application on March 13, 2017 seeking to challenge the same two orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court may review the superior court orders via a new discretionary application | Johnston sought review of the child support modification and fee orders after remittitur | The orders already were subject to a prior discretionary-appeal denial by the Georgia Supreme Court | Dismissed as res judicata: prior denial was an adjudication on the merits barring relitigation |
| Whether the application was timely | Johnston filed this application within 30 days of remittitur entry | Respondent argued the 30-day deadline runs from the orders/judgment entry, not remittitur | Dismissed as untimely: application filed more than 30 days after the relevant orders and denial of new trial |
| Whether filing within 30 days of remittitur preserves jurisdiction | Johnston relied on timing from remittitur entry | Court held the timing from remittitur is immaterial where prior Supreme Court denial and applicable deadlines apply | Not persuasive; remittitur timing did not cure the jurisdictional defect |
| Whether OCGA § 5-6-35 filing requirements are jurisdictional | Johnston implicitly challenged procedural bar | Respondent asserted the statute is jurisdictional and mandatory | Court reiterated OCGA § 5-6-35 is jurisdictional and must be obeyed; noncompliance bars the application |
Key Cases Cited
- Northwest Social and Civic Club v. Franklin, 276 Ga. 859 (adjudication on merits; denial of discretionary review has res judicata effect)
- Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666 (res judicata principles applied to discretionary-review denials)
- Hook v. Bergen, 286 Ga. App. 258 (discussing preclusive effect of prior discretionary-appeal rulings)
- Boyle v. State, 190 Ga. App. 734 (OCGA § 5-6-35 filing requirements are jurisdictional)