In the Supreme Court of Georgia



                                            Decided: June 20, 2016


                    S16A0105. ISLAMKHAN v. KHAN.


      THOMPSON, Chief Justice.

      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 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

       1
          Although there is evidence in the record that an application to appeal also may have been
filed on husband’s behalf, husband does not agree that an application was filed and there is no record
of such a filing in this Court’s electronic docket.

                                                  2
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 discretionary application for appeal in this Court.

       2
         The trial court subsequently entered a separate order in this case on September 19, 2014
resolving the issue of attorney fees requested pursuant to OCGA §§ 19-6-2 and 9-15-14.
       3
           OCGA § 9-12-16 provides:

       The judgment of a court having no jurisdiction of the person or the subject matter or
       which is void for any other cause is a mere nullity and may be so held in any court
       when it becomes material to the interest of the parties to consider it.

                                                3
        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 SE2d 79) (2014); Miller v. Miller, 288 Ga. 274, 282 (705

SE2d 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. See also Sotter v. Stephens, 291 Ga. 79, 82 (727

        4
          Although in its March 5, 2014 order the trial court instructs the parties to attempt to resolve
the issue of attorney fees themselves, this request did not compromise the trial court’s reservation
of the issue. See generally Brochin v. Brochin, 277 Ga. 66, 67 (586 SE2d 316) (2003).

                                                   4
SE2d 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 otherwise not subject to direct appeal, we find that

the issue presented with respect to whether husband’s notice of appeal in this

case acted as supersedeas is directly controlled by the plain language of OCGA

§ 5-6-34 (b).5 See Cherry v. Coast House, Ltd., 257 Ga. 403, 404 (359 SE2d

904) (1987). It is a well-settled principle that the right to appeal is not

constitutional, but instead depends on statutory authority. See State v. Cash,

298 Ga. 90, 92 (779 SE2d 603) (2015). Accord State v. Smith, 268 Ga. 75, 75

      5
          This statutory provision provides in pertinent part:

      Where the trial judge in rendering an order, decision, or judgment, not otherwise
      subject to direct appeal . . . certifies within ten days of entry thereof that the order,
      decision, or judgment is of such importance to the case that immediate review should
      be had, the Supreme Court or the Court of Appeals may thereupon, in their respective
      discretions, permit an appeal to be taken . . . if the application is made thereto within
      ten days after such certificate is granted. . . .The Supreme Court or the Court of
      Appeals shall issue an order granting or denying such an appeal within 45 days of the
      date on which the application was filed. Within ten days after an order is issued
      granting the appeal, the applicant . . . may file a notice of appeal as provided in
      Code Section 5-6-37. The notice of appeal shall act as a supersedeas as provided
      in code section 5-6-46 and the procedure thereafter shall be the same as in an appeal
      from a final judgment.

OCGA § 5-6-34 (b) (emphasis supplied).

                                                 5
(485 SE2d 491) (1997). As this Court observed in Cherry, “when the order

appealed from is an interlocutory order, the appellate court does not acquire

jurisdiction unless the procedure of OCGA § 5-6-34 (b) for interlocutory appeal

is followed.”6 Cherry, 257 Ga. at 404. See Lassiter Properties, Inc. v. Davidson

Mineral Properties, Inc., 230 Ga. App. 216, 217 (495 SE2d 663) (1998); Amado

v. City of Atlanta, 228 Ga. App. 791, 791 (492 SE2d 761) (1997). Accord

American General Financial Services v. Jape, 291 Ga. 637, 644 (732 SE2d 746)

(2012) (Nahmias, J., concurring specially) (noting that Georgia’s “interlocutory

appeal statute is . . . a jurisdictional law by which the General Assembly has

limited the authority of Georgia’s appellate courts to hear certain cases.”).

       The clear dictates of OCGA § 5-6-34 (b) require a party to obtain both a

certificate of immediate review from the trial court and an order from the

appropriate appellate court granting the appeal prior to a notice of appeal



       6
          In enacting OCGA § 5-6-34 (b), the Georgia General Assembly empowered trial courts to
certify whether the immediate review of any order, not otherwise appealable, should be allowed. See
Scruggs v. Georgia Dept. of Human Resources, 261 Ga. 587, 588 (408 SE2d 103) (1991). The
requirement that litigants obtain a certificate of immediate review in order to appeal an interlocutory
order “is an essential component of a trial court’s power to control litigation,” and this Court will
not review a trial court’s exercise of discretion in granting or denying the issuance of such a
certificate. Id. at 588-589. See Rivera v. Washington, __ Ga. __ (784 SE2d 775) (March 25, 2016)
(observing with respect to the interlocutory appellate procedures, that “the General Assembly did
not intend for parties to usurp the trial courts’ authority to regulate litigation”).

                                                  6
pursuant to OCGA § 5-6-37 being effective as supersedeas once the party pays

the costs required by OCGA § 5-6-46. Here, husband failed to follow the

required procedures for obtaining appellate review of the trial court’s

interlocutory March 5, 2014 order; thus, his attempted appeal was a nullity and

incapable of activating the appellate jurisdiction of this Court. See Cherry, 257

Ga. at 404; State v. Strain, 177 Ga. App. 874, 875 (341 SE2d 481) (1986)

(Where a party statutorily required to follow the appellate procedures set forth

in OCGA § 5-6-34 (b) fails to do so, “the attempted appeal is nugatory and does

not activate the appellate jurisdiction of this court.”). See also Tolbert v. Toole,

296 Ga. 357, 361 (767 SE2d 24) (2014) (holding that the unauthorized filing of

a notice of appeal had no legal effect and did not divest the trial court of

jurisdiction). Compare Wannamaker v. Carr, 257 Ga. 634, 635 (362 SE2d 53)

(1987) (recognizing that, in the context of a discretionary appeal, a prematurely

filed notice of appeal ripens upon the appellate court’s granting of the

application for appeal). Because husband’s filing of a notice of appeal without

first complying with the requirements for obtaining interlocutory review had no

legal effect, it did not deprive the trial court of jurisdiction to consider his

motion for reconsideration of the March 5, 2014 order or from entering its

                                         7
September 10, 2014 order modifying that order. See Cherry, 257 Ga. at 404.7

Accordingly, we affirm the trial court’s denial of wife’s motion to vacate void

judgment.

       Affirmed. All the Justices concur.




       7
         Although an appellate court is the sole authority in determining whether a filed notice of
appeal or discretionary application is sufficient to invoke its jurisdiction, see Hughes v. Sikes, 273
Ga. 804, 805 (546 SE2d 518 (2001), this Court is bound by the requirements of OCGA § 5-6-34 (b)
such that absent a certificate of immediate review from the trial court and an order from the appellate
court expressly granting permission to appeal, no appeal may be taken from an interlocutory order.
See Gable v. State, 290 Ga. 81, 85 (720 SE2d 170) (2011) (“Georgia courts may excuse compliance
with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional
violation concerning the appeal.”). Accordingly, an attempt to appeal an interlocutory order without
following the procedures statutorily mandated is ineffective in conferring jurisdiction on the
appellate court to hear the appeal. To the extent the Court of Appeals opinion in Williams v. Natalie
Townhouses of Inman Park Condominium Ass’n, Inc., 182 Ga. App. 815 (1) (357 SE2d 156) (1987)
holds otherwise, or imposes a requirement that the trial court issue an order dismissing an
unauthorized notice of appeal in order to prevent supersedeas from attaching, that decision hereby
is overruled. Likewise, any subsequent rulings by the Court of Appeals based on its erroneous
determinations in Williams are disavowed. See e.g., Styles v. State, 245 Ga. App. 90, 91 (537 SE2d
377) (2000) (citing Williams as the basis for overruling Kent v. Brown, 238 Ga. App. 607, 614 (518
SE2d 737) (1999)); Anaya v. Brooks Auto Parts, Inc., 208 Ga. App. 491, 493 (430 SE2d 825)
(1993).

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