Amber Sigafoose v. Herbert Rhett Cobb

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 06, 2016

The Court of Appeals hereby passes the following order: A17D0179. AMBER SIGAFOOSE v. HERBERT RHETT COBB.

On November 22, 2016, Amber Sigafoose filed this application for discretionary appeal of the trial court’s July 18, 2016 temporary order awarding Herbert Rhett Cobb sole physical and legal custody of the parties’ minor child. We, however, lack jurisdiction. Pursuant to OCGA § 5-6-34 (a) (11), “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody” are directly appealable. Therefore, a party seeking to challenge a child custody order, including an interlocutory order, may file a direct appeal. Cohen v. Cohen, 300 Ga. App. 7, 8 (1) (684 SE2d 94) (2009); Lacy v. Lacy, 320 Ga. App. 739, 742 (3) (740 SE2d 695) (2013). Ordinarily, when a party applies for discretionary review of a directly appealable order, we grant the application. See OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order or judgment to be appealed. OCGA § 5-6-35 (d); Hill v State, 204 Ga. App. 582, 582 (420 SE2d 393) (1992). Here, Sigafoose filed her application 127 days after the trial court’s order was entered.1 Because the application is untimely, it is hereby

1 Sigafoose also filed a pro se motion titled “Motion to Waive the Required 10 Day Filing,” in which she requests this Court to grant an out-of-time appeal. Pursuant to OCGA § 5-6-39 (a) (5), this Court may grant an extension of time for filing an application for discretionary appeal. Gable v. State, 290 Ga. 81, 84 (2) (a) (720 SE2d 170) (2011). The request for an extension, however, “must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” OCGA § 5-6-39 (d); see also Gable, 290 Ga. at 84-85 (2) (a).

DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/06/2016 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.

Furthermore, this Court has no authority to permit an out-of-time appeal at this juncture, where the trial court has not determined whether Sigafoose is entitled to file an out-of-time appeal. See e.g. In the Interest of B. R. F., 299 Ga. 294, 298-299 (788 SE2d 416) (2016).