Kennedy v. Brown
| Citation | 236 S.E.2d 632,239 Ga. 286 |
| Decision Date | 21 June 1977 |
| Docket Number | No. 32161,32161 |
| Parties | Mary Jo KENNEDY, now Mary Jo Piersall v. Melvin Abslon BROWN. |
| Court | Supreme Court of Georgia |
Martha K. Glaze, Glaze, Glaze, McNally & Glaze, Kirby A. Glaze, George E. Glaze, Jonesboro, for appellant.
Beck, Goddard, Owen & Murray, John H. Goddard, Jr., Samuel A. Murray, Griffin, for appellee.
This is an appeal from an order of the Superior Court of Spalding County, overruling appellant's motion to set aside judgment.
The parties were divorced on June 19, 1970, in the Superior Court of Spalding County. By order of the court, the appellant was awarded custody of the two minor children. In January, 1976, appellee filed a petition seeking to hold the appellant in contempt of court for failing to comply with the visitation provisions of the original divorce decree and in the same complaint sought to modify the decree so as to grant custody of one of the children to himself. On March 5, 1976, the court issued an order modifying visitation rights and directing that the original divorce decree be modified so as to grant custody of both children to their paternal grandmother. The order was signed by both attorneys as being in accord with the oral pronouncement of the court and was entered with the clerk of the superior court on March 30, 1976. For reasons of her own appellant dismissed her previous counsel and retained present counsel who filed a motion with the Superior Court of Spalding County to set aside the March 5, 1976 judgment on the grounds that it was void for failure to state findings of fact and conclusions of law and that a portion of the visitation rights as modified was unconstitutional for it required the parties to take the children to church each week. Two days prior to a hearing on this motion, an order nunc pro tunc was issued by the court allowing the appellee to file a written waiver of findings of fact and conclusions of law pertaining to the March 5th judgment. This waiver had been signed on March 5, 1976 by appellee's attorney and the attorney appellant had previously dismissed, but through inadvertence had not been filed. Appellant was not informed by the court of the issuance of the nunc pro tunc order until the time of the hearing on the motion to set aside judgment. At that hearing appellant's motion to set aside the March 5, 1976 judgment on the premise that the same was void was overruled and she now appeals that judgment.
1. Appellant's enumerations of error Nos. 1, 2, 3 and 4 all complain of the lower court's order dated March 5, 1976 and entered March 30, 1976. Each deals with the question of whether the entry of that order was erroneous. The basic procedure relating to the filing of appeal is set forth by Code Ann. § 6-803 which states in pertinent part: "(a) A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of . . .." Filing of the notice of appeal within the statutory period or the securing of an extension during such period is absolutely essential, to enable this court to consider the case on the merits. Blanton v. Jones et al., 230 Ga. 866, 199 S.E.2d 801 (1973). Since an appeal from the court's order dated March 5, 1976, and entered March 30, 1976, was not made, this court need not consider the merits of appellant's enumerations of error. The issue on this appeal is not whether the trial court erred in entering the March 5, 1976 judgment but whether the trial court judge erred in refusing to set it aside as sought in appellant's motion.
2. Appellant's enumerations of error Nos. 5, 6 and 7 attack the lower court's order of January 3, 1977 allowing a nunc pro tunc filing of the attorney's written waiver of findings of fact and conclusions of law. Section 52 of our Civil Practice Act, Code Ann. § 81A-152, provides that: "In all actions in Superior Court tried upon the facts without a jury, except actions involving only uncontested divorce, alimony and custody...
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