Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 22, 2021
The Court of Appeals hereby passes the following order:
A22D0034. JOSEPH B. MCCARTHY v. ANNIE J. ASHMENT.
Joseph B. McCarthy and Annie J. Ashment divorced in 2012.1 The divorce
decree awarded primary physical custody of their children to Ashment and gave
visitation to McCarthy. In the instant case, McCarthy concurrently filed in Cobb
County Superior Court a petition for citation of contempt against Ashment and an
emergency motion for temporary relief, both based on alleged violations of the
parenting plan. Ashment filed a motion to transfer venue. The trial court held an
emergency hearing on McCarthy’s emergency motion for temporary relief and denied
the motion, finding that there appeared to be no intentional acts of hindrance of
McCarthy’s visitation with the children by Ashment. The court also awarded attorney
fees to Ashment under OCGA §§ 9-15-14 and 19-6-2. In a separate order, the court
transferred the contempt case to Fayette County Superior Court, where Ashment had
filed a motion for modification of visitation that was still pending.
McCarthy then filed a petition for certificate of immediate review in Cobb
County Superior Court, seeking review of the denial of the emergency motion for
temporary relief, the attorney fee award, and the transfer order. However, McCarthy
has not submitted a certificate of immediate review or any evidence that the court
issued such a certificate. McCarthy then filed the instant application for discretionary
1
McCarthy, who is pro se, has been “particularly litigious” following the
divorce. McCarthy v. Ashment, 353 Ga. App. 270, 270 (835 SE2d 745) (2019); see
McCarthy v. Ashment-McCarthy, 295 Ga. 231 (758 SE2d 306) (2014); McCarthy v.
Ashment, 338 Ga. App. 858 (790 SE2d 651) (2016).
review of the same three rulings.2 We lack jurisdiction.
The rulings McCarthy seeks to appeal are not directly appealable pursuant to
OCGA § 5-6-34 (a), and he did not follow the interlocutory appeal procedure set forth
in OCGA § 5-6-34 (b). All final judgments, where the case is no longer pending in
the court below, are generally appealable, except those subject to the discretionary
appeal procedure. OCGA § 5-6-34 (a) (1). “All judgments involving . . . contempt
cases” are also generally appealable, as are “[a]ll judgments or orders in child custody
cases awarding, refusing to change, or modifying child custody or holding or
declining to hold persons in contempt of such child custody judgment or orders.”
OCGA § 5-6-34 (a) (2), (11).
The denial of McCarthy’s emergency motion for temporary relief was not a
final order or a judgment involving a contempt case, as the court did not rule on the
contempt petition, which remains pending below. The trial court’s order also did not
award, refuse to change, or modify child custody; it likewise did not hold or decline
to hold a person in contempt of a child custody ruling. Thus, the denial of McCarthy’s
emergency motion for temporary relief is not directly appealable pursuant to OCGA
§ 5-6-34 (a). He was required to follow the interlocutory application procedure set
forth in § 5-6-34 (b), which includes obtaining a certificate of immediate review from
the trial court. See Bailey v. Bailey, 266 Ga. 832, 832-833 (471 SE2d 213) (1996).
Likewise, McCarthy was required to follow the interlocutory application
procedure to appeal the transfer of the contempt proceeding to a different venue.
Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 161 (701 SE2d 599) (2010) (“A
trial court’s ruling on the issue of removal or transfer of venue is not a directly
appealable final judgment under OCGA § 5-6-34 (a) (1), and thus, it is subject to the
procedures governing interlocutory appeals.”).
The same is true of the attorney fee award. Generally, an application for
discretionary appeal is required for appellate review of an award of attorney fees or
2
This Court granted McCarthy three extensions of time to file the instant
application. Case No. A22E0003 (July 30, 2021); Case No. A22E0006 (August 17,
2021); Case No. A22E0008 (August 30, 2021).
litigation expenses under OCGA § 9-15-14. See also OCGA § 5-6-35 (a) (10).
However, where, as here, the action remains pending below and the order is a
non-final order that does not resolve all issues in the action, the appellant is required
to follow the interlocutory appeal procedure set forth in § 5-6-34 (b) to challenge the
fee award. See generally Bailey, 266 Ga. at 832-833 (party seeking appellate review
from an interlocutory order that also implicates the discretionary application statute
must comply with the interlocutory application statute); see also Eidson v. Croutch,
337 Ga. App. 542, 543-545 (788 SE2d 129) (2016) (where attorney fees order is
issued prior to final judgment, party seeking appellate review must follow
interlocutory appeal requirements). McCarthy was therefore required to follow the
interlocutory appeal procedure regarding the attorney fee award.
McCarthy’s failure to comply with the interlocutory appeal requirements of
OCGA § 5-6-34 (b) deprives this Court of jurisdiction over the appeal. Accordingly,
this discretionary application is DISMISSED. See Bailey, 266 Ga. at 833.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/22/2021
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.