Islamkhan v. Khan, S16A0105

• Court: Supreme Court of Georgia
• Citation: 299 Ga. 548,787 S.E.2d 731
• Docket Number: S16A0105
• Parties: Islamkhan v. Khan.
• Decision Date: 20 June 2016

299 Ga. 548
787 S.E.2d 731

Islamkhan
v.
Khan.

S16A0105

Supreme Court of Georgia.

Decided: June 20, 2016

Stephen Michael Reba, The Law Office Of Stephen Reba, LLC, P.O. Box 1046, Decatur, Georgia 30031, for Appellant.

Andrea Marie Knight, Senterfitt & Knight LLC, 127 Peachtree Street, N.E., Suite 1025, Atlanta, Georgia 30303, Jean Miller Kutner, P.O. Box 422477, Atlanta, Georgia 30342, for Appellee.

THOMPSON, Chief Justice.

299 Ga. 548

In this divorce action, appellant Sharmeen Islamkhan (“wife”) filed an application for discretionary review of the denial of her motion to vacate void judgment in which she asked the trial court to vacate its order modifying certain provisions of the parties' final divorce decree. Wife argued that, prior to entry of the modification order, appellee Shoeb Khan (“husband”) filed a notice of appeal of the final divorce decree which acted as supersedeas and deprived the trial court of jurisdiction to modify the appealed order. We granted wife's application for appeal and asked the parties to address a series of questions related to the issue of whether supersedeas had attached. For the reasons which follow, we find that the divorce decree entered by the trial court was not a final judgment and, as a result, husband's failure to follow the procedures set forth in OCGA § 5–6–34 (b) for

299 Ga. 549

obtaining interlocutory review rendered his notice of appeal nugatory. Accordingly, we affirm the trial court's denial of wife's motion to vacate.

The record shows that at the time wife filed her complaint for divorce, the parties had been married 29 years and had three children, one of whom was still a minor. Husband filed both an answer and a counterclaim, and the parties conducted discovery. The trial court entered an order titled “Final Order of Divorce” on March 5, 2014, which granted a final divorce but specifically reserved for determination the issue of attorney fees. Thereafter, husband filed a notice of appeal in the trial court on March 25, 2014 seeking to appeal the March 5, 2014 order.¹ Upon obtaining new counsel, however, husband filed a motion for reconsideration of this order within the term of court in which it was entered.

After holding a hearing on husband's motion, the trial court entered a new order on September 10, 2014 nunc pro tunc to March 5, 2014, modifying the March 5, 2014 order to correct an error in valuation of one of the marital assets and to set a date certain upon which husband's obligation to share expenses of the former marital residence would end.² Wife moved the trial court for reconsideration of the September 10, 2014 order, but her motion was denied.

Wife, via new counsel, then filed a motion to vacate void judgment pursuant to OCGA § 9–12–16, arguing that because husband had filed a notice of appeal of the March 5, 2014 order prior to filing his motion for reconsideration, supersedeas had attached pursuant to OCGA § 5–6–46 and the trial court lacked jurisdiction to rule on husband's motion.³ As a result, wife claimed that the trial court's September 10, 2014 order, modifying the March 5, 2014 order, was void. After voluntarily dismissing his notice of appeal, husband filed a response to the motion to vacate in which he asserted that the notice of appeal did not operate as supersedeas because he never paid the costs in the trial court as required by OCGA § 5–6–46. Without holding a hearing, the trial court denied wife's motion to vacate by order entered March 4, 2015, and wife timely filed her

787 S.E.2d 733

discretionary application for appeal in this Court.

299 Ga. 550

In granting wife's application, this Court asked the parties to address several questions regarding when, and if, supersedeas attached as a result of husband's actions, including whether the March 5, 2014 order husband sought to appeal was a final judgment or an interlocutory order. Because we find the trial court's March 5, 2014 order was, in fact, interlocutory, we limit our analysis in this appeal accordingly.

1. In a divorce action, a decree which grants the parties a divorce but reserves an issue to be determined later is interlocutory. See Sapp v. Sapp , 294 Ga. 435, 435, 754 S.E.2d 79 (2014) ; Miller v. Miller , 288 Ga. 274, 282, 705 S.E.2d 839 (2010). In this case, both parties asked in their pleadings to be awarded reasonable attorney's fees. See OCGA § 19–6–2 (a) (1). Thus, despite being titled “Final Order of Divorce,” the trial court's March 5, 2014 order, which specifically reserved resolution of the attorney fees issue for further order of the court, was not a final judgment but was, instead, an interlocutory order appealable only pursuant to the procedures set forth in OCGA § 5–6–34 (b).⁴ See Sapp , 294 Ga. at 435, 754 S.E.2d 79. See also Sotter v. Stephens , 291 Ga. 79, 82, 727 S.E.2d 484 (2012) (in determining whether a judgment is final for purposes of appeal, the trial court's designation of the judgment as “final” is not controlling).

2. Having determined that the March 5, 2014 order husband sought to appeal was interlocutory and...