Pinyan v. Hamby

Deen, Presiding Judge. On October 23, 1980, the appellant, Larry Pinyan, and the appellee, Sara Hamby (formerly Sara Pinyan) were divorced in Cobb County, Georgia, at which time the appellee was awarded custody of their minor child. That divorce decree began what appears to be a protracted domestic legal war. On February 14, 1983, the appellant filed a contempt action based on the appellee’s failure to allow visitation rights, and on December 6, 1983, the Cobb County superior court did find the appellee in contempt. The appellant filed another contempt action soon after-wards on December 22, 1983, alleging the same basis for contempt. Sometime in December 1983, the appellee and the minor child retreated to North Carolina. On July 26, 1984, the appellee filed her own contempt action against the appellant in the Cobb County superior court, and also an action seeking a modification of visitation rights. In answering, the appellant asserted a counterclaim seeking a change of custody. The two contempt actions were consolidated, and on September 14, 1984, the superior court entered an order finding both parties in contempt. On October 1, 1984, the appellee moved to dismiss the appellant’s counterclaim in the visitation rights case, on the basis that the Cobb County court lacked jurisdiction to determine the child custody matter. On April 12, 1985, the superior court granted that motion, and this direct appeal followed. Held: In this case, the trial court’s order dismissing the appellant’s counterclaim is not a final judgment, because the main action is still pending with the trial court, and it does not appear that the trial [412] court considered matters outside the pleadings to convert the motion to dismiss into one for summary judgment. Because no certificate of immediate review has been obtained, this appeal is premature and must be dismissed. OCGA § 5-6-34, generally; Register v. Kandlbinder, 132 Ga. App. 435 (208 SE2d 565) (1974); Huff v. Rogers, 129 Ga. App. 897 (202 SE2d 243) (1973). Decided October 11, 1985. William P: Holley, Jr., for appellant. David S. Marotte, for appellee. Appeal dismissed. Pope and Beasley, JJ., concur.