Jeffrey Bryan Birdsong v. Catherine Barnett

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 27, 2014

The Court of Appeals hereby passes the following order: A15D0081. JEFFREY BRYAN BIRDSONG v. CATHERINE BARNETT.

Jeffrey Bryan Birdsong has filed an application for discretionary appeal from the trial court’s order holding him in contempt for violating a Stalking Protective Order. The order, however, is subject to direct appeal. Pursuant to OCGA § 5-6-35 (a) (2), a party must follow the discretionary appeal procedure to obtain review in a domestic relations case, including those that involve family violence. See Schmidt v. Schmidt, 270 Ga. 461 (1) (510 SE2d 810) (1999). “[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. Here, the trial court’s order is titled “Order Concerning Motion for Contempt – Family Violence.” However, that title is not controlling, as it is well established that substance controls over nomenclature. See, e.g., Giles v. State, 257 Ga. App. 65 (2) (570 SE2d 375) (2002). Because this case concerns Birdsong’s actions toward his neighbor, with whom he does not have a familial relationship, it is not a family violence case within the meaning of OCGA § 19-13-1, nor a domestic relations case within the meaning of OCGA § 5-6-35 (a) (2). Birdsong, therefore, was not required to follow the discretionary appeal procedures to obtain appellate review. 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 Birdsong shall have ten days from the date of this order to file a notice of appeal with the trial court. If he has already filed a

notice of appeal in the trial court, he need not file a second notice. The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia 10/27/2014 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.