Marvis McDaniel-ivey v. Gary Piper

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 19, 2021

The Court of Appeals hereby passes the following order: A21D0171. MARVIS MCDANIEL-IVEY v. GARY PIPER.

Marvis McDaniel-Ivey sought a temporary twelve month protective order against Gary Piper. The trial court entered an order dismissing McDaniel-Ivey’s petition, finding her allegations did not meet the criteria for stalking. McDaniel-Ivey appealed to the Georgia Supreme Court, which docketed the case as an application for discretionary appeal. The Supreme Court then transferred the application to this Court after finding no basis for its jurisdiction. See Case No. S21D0502 (decided Dec. 11, 2020). It appears, however, that the order may be appealed directly. A party must file an application for discretionary appeal to obtain review of a protective order that was entered in an action brought under the Family Violence Act, because such cases are domestic relations cases within the meaning of OCGA § 5-6- 35 (a) (2). See Schmidt v. Schmidt, 270 Ga. 461, 461-462 (1) (510 SE2d 810) (1999). However, a party may file a direct appeal from a protective order that was entered in an action brought under OCGA § 16-5-94, the general stalking statute. See, e.g., Sinclair v. Daly, 295 Ga. App. 613 (672 SE2d 672) (2009) (reversing on direct appeal a stalking protective order entered under OCGA § 16-5-94); Pilcher v. Stribling, 282 Ga. 166 (647 SE2d 8) (2007) (same). Here, there is no indication that the parties have a familial relationship within the meaning of the Family Violence Act, which defines “family violence” as “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. Therefore, McDaniel-Ivey appears to have a right of direct appeal.

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 McDaniel-Ivey shall have ten days from the date of this order to file her notice of appeal with the trial court. If she has already filed a notice of appeal in the trial court, she need not file an additional notice. The clerk of the trial court is DIRECTED to include a copy of this order in the records transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/19/2021 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.