Ellen E. Lee v. Bennett J. Lee

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 05, 2020

The Court of Appeals hereby passes the following order: A20A1846. ELLEN E. LEE v. BENNETT J. LEE.

Ellen E. Lee and Bennett J. Lee divorced in 2016, and the court granted Ellen primary physical custody of their children. In January 2020, Bennett filed a petition to modify custody. Over Ellen’s objection, the court issued on March 11, 2020, an order appointing a guardian ad litem and requiring each party to pay 50 percent of the guardian ad litem’s fees. Ellen appeals from the trial court’s order. We lack jurisdiction. “All judgments or orders in child custody cases awarding, refusing to change, or modifying child custody” are directly appealable under OCGA § 5-6-34 (a) (11). The order at issue here, however, did not include any decision as to custody. Cf. Murphy v. Murphy, 322 Ga. App. 829, 830 (747 SE2d 21) (2013) (holding that trial court’s order denying mother’s motion to recuse judge in custody dispute was not directly appealable as a custody decision). Instead, the trial court merely appointed a guardian ad litem to further investigate and ordered the parties to pay the related fees. Because the case remains pending in the trial court, the order Ellen seeks to appeal is a non-final order which did not resolve all issues in the case. Accordingly, she was required to follow the procedures for interlocutory review as set forth in OCGA § 5-6-34 (b) by timely seeking a certificate of immediate review in the superior court and filing an application. See Bailey v. Bailey, 266 Ga. 832, 832-833 (471 SE2d 213) (1996); Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588- 589 (1) (408 SE2d 103) (1991); Gray v. Springs, 224 Ga. App. 427, 427 (481 SE2d

3) (1997). Ellen’s failure to comply with the interlocutory appeal requirements deprives us of jurisdiction to review this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/05/2020 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.