Kathryn Dianne Burke Adams v. Melborne F. Koehler

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 12, 2019

The Court of Appeals hereby passes the following order:

A20D0072. KATHRYN DIANNE BURKE ADAMS v. MELBORNE F. KOEHLER.

Kathryn Dianne Burke Adams sued Melbourne F. Koehler for divorce, and a final decree was entered on August 21, 2018. Adams filed a timely motion for new trial, which the trial court denied on April 18, 2019. In July 2019, Adams filed a motion for out-of-time appeal, which the trial court granted on August 8, 2019. Adams then filed this application for discretionary appeal. We, however, lack jurisdiction. OCGA § 5-6-35 (d) requires that discretionary applications be filed within 30 days of the entry of the order to be appealed. The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Here, Adams was required to file her discretionary application within 30 days of the trial court’s April 18 order denying her motion for new trial. Although the trial court purported to grant an out-of-time appeal, such relief is not available in a civil case.1 See Mapp v. We Care Transp. Svcs., 319 Ga. App. 856, 857 (738 SE2d 97) (2013); Woodall v. Woodall, 248 Ga. 172 (281 SE2d 619) (1981).

1 A civil litigant may seek an extension of time in which to file a discretionary application, but such request “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 Court of Appeals Rule 31 (i); Gable v. State, 290 Ga. 81, 84-85 (2) (a) (720 SE2d 170) (2011).

Accordingly, we lack jurisdiction to consider this application for discretionary appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/12/2019 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.