Nancy Ann Walsh v. Steven Russell Walsh

Court of Appeals of the State of Georgia

ATLANTA,__________________ December 04, 2013

The Court of Appeals hereby passes the following order: A14A0198. NANCY ANN WALSH v. STEVEN RUSSELL WALSH.

Steven Walsh filed a petition for declaratory judgment against his ex-wife, Nancy Walsh, seeking judicial guidance on the parties’ child custody agreement. After the trial court entered a ruling, Nancy Walsh filed both a motion for new trial1 and a notice of appeal. The appeal was transmitted to this Court, but the trial court has not yet ruled on the motion for new trial. Steven Walsh has filed a motion to dismiss this appeal, arguing that the pending motion for new trial renders it premature. He is correct. In a civil case, “[a] notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.” (Punctuation omitted.) Auld v. Weaver, 196 Ga. App. 782 (397 SE2d 51) (1990); see also Griffin v. Loper, 209 Ga. App. 504 (433 SE2d 653) (1993). Because Nancy Walsh filed this appeal before the trial court entered a ruling on her motion for new trial, it is premature and is due to be dismissed. Accordingly, Steven Walsh’s motion to dismiss is hereby GRANTED and this appeal is hereby DISMISSED.

1 In her motion, Nancy Walsh sought both reconsideration and, in the alternative, a new trial. Because the motion challenged the trial court’s factual findings, we have construed it as a motion for new trial. See Sunn v. Mercury Marine, 166 Ga. App. 567 (1) (305 SE2d 6) (1983) (a motion for new trial is the proper vehicle for attacking the trial court’s substantive determination of facts).

Court of Appeals of the State of Georgia 12/04/2013 Clerk’s Office, Atlanta,__________________ 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.