Damyera Herbert v. Melissa Jordan

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 12, 2018

The Court of Appeals hereby passes the following order: A18D0300. DAMYERA HERBERT v. MELISSA JORDAN.

Damyera Herbert has filed an application for discretionary review of the stalking twelve-month protective order entered against her by the superior court upon petition by Melissa Jordan. From the limited information included in the application materials, however, the order appears to be subject to direct appeal. A party must file an application for discretionary appeal to obtain review of a protective order that was entered in an action brought under the Family Violence Act, OCGA § 19-13-1 et seq., because such cases are domestic relations cases within the meaning of OCGA § 5-6-35 (a) (2). See Schmidt v. Schmidt, 270 Ga. 461, 461-462 (1) (510 SE2d 810) (1999). However, a party may file a direct appeal from a protective order that was entered in an action brought under the general stalking statute, OCGA § 16-5-94. See, e.g., Pilcher v. Stribling, 282 Ga. 166, 166-168 (647 SE2d 8) (2007) (reversing on direct appeal a stalking protective order entered under OCGA § 16-5-94); Sinclair v. Daly, 295 Ga. App. 613, 614-616 (672 SE2d 672) (2009) (same). Here, there is no indication that the parties have a familial relationship within the meaning of the Family Violence Act.1 Rather, Jordan petitioned for the entry of a stalking protective order pursuant to OCGA § 16-5-94. Therefore, Herbert appears to have a right of direct appeal.

1 “[T]he term ‘family violence’ means . . . acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household[.]” OCGA § 19-13-1.

We will grant an otherwise timely application for discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED, and Herbert shall have ten days from the date of this order to file her notice of appeal with the trial court. If she has already filed a notice of appeal in the trial court, she need not file an additional notice. The clerk of the trial court is DIRECTED to include a copy of this order in the records transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/12/2018 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.