796 S.E.2d 721 | Ga. | 2017
Glen William Rollins and Danielle Deaton Rollins were divorced in December 2013, and they agreed at that time to submit to binding arbitration of their respective claims to certain furniture and furnishings in the marital home. The arbitrator rendered an award in July 2014, and Glen promptly moved for judicial confirmation of the award. While his motion for confirmation was pending,
Danielle sought appellate review of that initial contempt order, both by filing an application for discretionary review in this Court, and by filing a notice of direct appeal. In May 2015, we denied the
In the meantime, the trial court held a final hearing on the motion for contempt and entered a final contempt order on November 24, 2015, finding Danielle in contempt of the August 2014 order in additional respects, directing her to immediately surrender any property awarded to Glen, ordering her to pay Glen for any such property that had gone missing or was damaged, and ordering her to pay fines for 34 separate instances of contempt. The trial court also awarded attorney fees to Glen in connection with the contempt proceedings. Danielle filed an application for discretionary review of this final contempt order, and we granted her application.
1. Danielle argues that the trial court was without jurisdiction to enter a final contempt order while her direct appeal from the initial contempt order still was pending in this Court. We agree. By filing a notice of appeal from the initial contempt order, Danielle triggered an automatic supersedeas of that order. See OCGA § 5-6-46 (a). See also Massey v. Massey, 294 Ga. 163, 166 (3) (751 SE2d 330) (2013). “At that point, the trial court was deprived of the power to affect the judgment appealed.” Massey, 294 Ga. at 166 (3) (citation and punctuation omitted). It is true that a direct appeal was improper — any appeal from the initial contempt order had to come by application — and that the appeal was, therefore, subject to dismissal from the beginning. “That would not have meant, however, that the trial court retained jurisdiction.” Tolbert v. Toole, 296 Ga. 357, 361 (2) (767 SE2d 24) (2014) (citation omitted). See also Styles v. State, 245 Ga. App. 90, 90
In its final contempt order, the trial court rejected the notion that the pending (but jurisdictionally flawed) direct appeal from the initial contempt order worked a supersedeas, explicitly finding that the direct appeal was “unlawful” because any appeal from orders entered in this domestic relations case was required to come by application pursuant to OCGA § 5-6-35 (a) (2). But neither the trial court nor Glen cited any authority for the proposition that a trial court is entitled to simply ignore the supersedeas effect of a pending appeal on the ground that the appeal is due to be dismissed.
“[A]n appellate court is the sole authority in determining whether a filed notice of appeal or discretionary application is sufficient to invoke its jurisdiction.” Islamkhan, 299 Ga. at 552 (2), n. 7 (citation omitted).
2. When this case is returned to the trial court for further proceedings consistent with this opinion, and when the trial court considers anew the question of attorney fees under OCGA § 9-15-14, it should not award Glen any attorney fees incurred in connection with proceedings in this Court (whether in this appeal or previous appeals), as such attorney fees are not recoverable under OCGA § 9-15-14.
Judgment vacated and case remanded with direction.
The trial court later confirmed the arbitration award.
See Rollins v. Rollins, Case No. S15D1277 (May 26, 2015) (motion for reconsideration denied, July 6, 2015).
See Rollins v. Rollins, Case No. S16A0352 (December 3, 2015).
See Rollins v. Rollins, Case No. S16D0588 (January 20, 2016). Although Danielle identified eight claims of error in her application that she sought to urge on appeal, we granted her application only as to two claims of error — that the trial court was without jurisdiction to enter a final contempt order while her appeal from the initial contempt order remained pending in this Court and that the trial court erred in awarding attorney fees incurred by Glen in connection with various appeals in this case. See Zekser v. Zekser, 293 Ga. 366, 369 (2) (744 SE2d 698) (2013) (appellate court may limit grant of application for discretionary review).
In earlier appeals in this case, we had noted that it was a domestic relations case, and so, any appeals had to come by application. See OCGA § 5-6-35 (a) (2). Glen argues that these previous orders were res judicata and “law of the case” on the issue of whether a discretionary application was required in order to appeal from a contempt order in this case. See OCGA § 9-11-60 (h); Northwest Social and Civic Club v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003). Our prior orders in this case certainly bolster our eventual dismissal of the direct appeal from the initial contempt order. They do not, however, provide authority for the trial court to make its own determination of our appellate jurisdiction and ignore the supersedeas effect of the direct appeal that was pending at the time the trial court entered its final contempt order.
Atrial court may not, however, award fees under OCGA § 9-15-14 for frivolous filings in the appellate court. See Division 2 infra.
Citing Avren v. Garten, 289 Ga. 186, 190-191 (6) (710 SE2d 130) (2011), Glen argues that the supersedeas effect of Danielle’s direct appeal from the initial contempt order did not deprive the trial court of jurisdiction at the final hearing on November 19, 2015 because the final hearing related to matters independent of the initial contempt order, specifically, the consequences of having found Danielle in contempt and attorney fees. Avren, however, involved the supersedeas effect of a contempt order (and dismissal of a modification petition) only on a subsequent award of attorney fees. In this case, the final hearing and contempt order in November 2015 dealt with remedies for the very contempt that the trial court had already found in the order to which the supersedeas at issue applied. The final hearing and contempt order, therefore, are precisely the kind of subsequent proceedings contemplated when we say that “[t]he supersedeas of a filed application or notice of appeal deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Id. at 190 (6) (citation and punctuation omitted). See Massey, 294 Ga. at 166 (3) (supersedeas of one contempt order deprived the trial court of jurisdiction to enter a subsequent order of contempt of the first order); Fred Jones Enterprises v. Williams, 331 Ga. App. 481, 484 (1) (771 SE2d 163) (2015) (distinguishing Avren in a different context).
On the other hand, when an attempt is made to appeal an interlocutory order without following the statutory requirements of OCGA § 5-6-34 (b) for a certificate of immediate review from the trial court and an order from the appellate court expressly granting permission to appeal, the unauthorized notice of appeal does not serve as supersedeas, and it is ineffective to confer jurisdiction on the appellate court to hear the appeal. Islamkhan, 299 Ga. at 552 (2), n. 7. In this case, however, Danielle had the right to seek immediate appellate review of the initial contempt order without requesting a certificate of immediate revie w under OCGA § 5-6-34 (b). See OCGA § 5-6-34 (a) (2); Massey, 294 Ga. at 164 (2).
It appears from the final contempt order and the transcript of the final hearing that the trial court erroneously included in its award of attorney fees amounts that Glen had specifically requested for defending against Danielle’s attempted appeals from the initial contempt order.