Stacy K. Recinella F/K/A Stacy Rutter v. Charles W. Rutter, Jr.

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 30, 2020

The Court of Appeals hereby passes the following order:

A20D0395. STACY K. RECINELLA f/k/a STACY RUTTER v. CHARLES W. RUTTER, JR.

Following the parties’ contentious divorce, the trial court entered an order governing custody and visitation of their minor children. The court later found Recinella in contempt of that order, and she appealed to this Court. We docketed the appeal as Case No. A20A0701, and it remains pending here. Meanwhile, the trial court entered another order awarding attorney fees to Recinella’s ex-husband under OCGA § 9-15-14 and other statutes. Recinella now seeks discretionary review of the fee award.1 “[A] party aggrieved by a post-judgment OCGA § 9-15-14 award is required to comply with the discretionary appeal procedure of OCGA § 5-6-35 (a) (10) only in those instances where no direct appeal has been otherwise taken from the underlying judgment. However, in those instances where . . . a direct appeal has been taken from the underlying judgment, a party may also appeal directly from the OCGA § 9-15-14 post-judgment award without regard to the discretionary appeal procedures.” Rolleston v. Huie, 198 Ga. App. 49, 52 (4) (400 SE2d 349) (1990);

1 Recinella’s application was not filed within 30 days of the February 20, 2020 fee award, as required by OCGA § 5-6-35 (d). However, the filing deadline was tolled by the March 14, 2020 Supreme Court Order Declaring Statewide Judicial Emergency, as extended on April 6, May 11, and June 12, 2020. See Order Declaring Statewide Judicial Emergency, First Extension Order, Second Extension Order, and Third Extension order, available at http://www.gasupreme.us. This application therefore was timely filed on June 10, 2020.

accord Reynolds v. Clark, 322 Ga. App. 788, 789 (746 SE2d 266) (2013) (“a post- judgment award of attorney fees may be appealed directly . . . where there is a pending appeal taken from the underlying judgment”). Thus, Recinella was entitled to a direct appeal from the attorney fee award. This Court will grant a timely discretionary application pursuant to OCGA § 5-6-35 (j) if the trial court’s order is subject to direct appeal and the applicant has not timely filed a notice of appeal. Accordingly, this application is hereby GRANTED. Recinella shall have ten days from the date of this order to file a notice of appeal with the trial court. If, however, she has already filed a notice of appeal, she 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. Recinella’s motion to stay is MOOT. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/30/2020 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.