Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 14, 2022
The Court of Appeals hereby passes the following order:
A22D0261. TATYANA ELLIS et al. v. KENNETH LEIGH SEAVER.
Tatyana Ellis (“Wife”) and Troy Ellis (“New Husband”) seek discretionary
review of the trial court’s denial of their motion to recuse in this domestic relations
case. We, however, lack jurisdiction.
Wife and Kenneth Seaver (“Husband”) were divorced in 2014. Thereafter, they
filed a number of motions, including Wife’s motion to set aside part of the divorce
decree and both parties’ motions for contempt and for a modification of custody and
child support. In March 2019, the trial court entered an order declining to set aside
the decree or to modify custody, ordering Wife to pay child support, finding Wife in
contempt, and directing her to pay Husband’s attorney fees. Wife filed a discretionary
application seeking review of the order’s non-custody rulings, but we denied the
application. See Case No. A19D0438 (May 15, 2019). Wife also filed a direct appeal
from the custody portion of the order. We affirmed the trial court. See Case No.
A20A0231 (Apr. 29, 2020).
Back in the trial court, Wife—who had since remarried New Husband—filed
an “omnibus motion” that, among other things, sought to set aside the March 2019
order. New Husband filed a similar omnibus motion, as well as a motion to intervene,
and both Wife and New Husband filed motions to recuse both the trial court judge
and the entire Cobb Judicial Circuit. In September 2021, the trial court entered orders
denying or dismissing all of these motions. Wife and New Husband filed an
application for discretionary appeal, which we denied. See Case No. A22D0110
(Nov. 9, 2021).
Wife and New Husband then filed a motion to set aside the September 2021
order denying their omnibus motions.1 The trial court denied this motion, ruling that
“[n]one of the grounds specifically set out in OCGA § 9-11-60 (d) have been shown
to exist[.]” Wife and New Husband also filed another motion to recuse the trial court
judge, alleging that they have a pending mandamus action against her and she has
demonstrated bias against them. The trial court also denied this motion. Wife and
New Husband now seek discretionary review of the order denying their motion to
recuse. They do not challenge the order denying their latest motion to set aside.
Wife and New Husband characterize the recusal order as “interlocutory.” If this
is accurate, then Wife and New Husband were required to file an application for
interlocutory appeal, which they have not done. See Ellis v. Stanford, 256 Ga. App.
294, 295 (2) (568 SE2d 157) (2002) (“Denials of motions to recuse are interlocutory
in nature. An appeal of such an order requires compliance with the interlocutory
appeal provisions of OCGA § 5-6-34 (b).”).
However, the recusal order appears to be final, as Wife and New Husband point
to nothing pending before the trial court in the case below. See Nance v. Houston
County School Dist., 359 Ga. App. 204, 205 (857 SE2d 97) (2021) (an order is final
when “the case is no longer pending in the court below”). Under OCGA § 5-6-48 (b)
(3) an appeal will be dismissed “[w]here the questions presented have become moot.”
If there is nothing left for the trial court to rule upon, then the recusal issue is moot.
See Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (a) (489 SE2d 99) (1997) (a
matter is moot if it “cannot have any practical effect on the existing controversy”).
1
Wife and New Husband have not included this motion with their application
materials.
In sum, the recusal order is either interlocutory, because the case remains
pending below; or moot, because it does not. In either circumstance, we lack
jurisdiction. This application is therefore DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/14/2022
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.