Change to Appellate Jurisdiction Statute Applies to Ongoing Litigation, But Only Going Forward

Atlanta Attorney At Appeals Court

In an opinion issued June 30, 2014, the Georgia Supreme Court unanimously found the Court of Appeals’ retroactivity analysis was “flawed.” Murphy v. Murphy, S13G1651, slip op. at 1. The Court stated that although statutory procedural changes can apply retroactively, “to apply a procedural statute retroactively generally does not mean that it applies with respect to prior filings, proceedings, and occurrences, but rather that the procedural change affects future court filings, proceedings, and judgments that arise from prior occurrences.” Id. at 4 (emphasis added). Thus, procedural changes may take effect in the middle of ongoing litigation, and affect the later course of the litigation, but do not undo the “prior filings, proceedings, and occurrences” in the case.

At issue in Murphy was OCGA § 5-6-34(a)(11), providing for direct appeal of certain orders in child custody cases. The General Assembly amended that section, effective May 6, 2013. The Court of Appeals, addressing the appeal in July 2013, shortly after the amendment’s effective date, noted the general principle that procedural changes apply retroactively and dismissed the appeal, as outside its jurisdiction under the amended statute.

The Supreme Court determined that the Court of Appeals applied its retroactivity analysis incorrectly. The appeal had been filed and docketed in 2012, before the amendment took effect. Citing Day v. Stokes, 268 Ga. 494 (491 SE2d 365) (1997), the Supreme Court suggested that the Court of Appeals should have applied the jurisdiction statute as it existed at the time the order being appealed from was entered, also in 2012. The Court distinguished two cases that applied retroactivity more broadly, Stevens v. State, 292 Ga. 218 (734 SE2d 743) (2012), and In the Interest of K.R., 285 Ga. 155 (674 SE2d 288) (2009). Stevens involved a change in judicial interpretation, not a constitutional or statutory change; different standards govern each type of change. See Banks v. ICI Americas, Inc., 266 Ga. 607, 609-10 (3) (469 SE2d 171) (1996), cited with approval in Murphy, slip op. at 7. And in Interest of K.R., the General Assembly had expressly provided that the statutory amendment was to apply to all cases filed after a certain date, whereas there was no such provision in the 2013 amendment of Section 5-6-34(a)(11).

Although the Supreme Court disapproved the Court of Appeals’ retroactivity analysis, it affirmed the dismissal, because “even under the prior version of OCGA § 5-6-34 (a)(11), there was no right of direct appeal from the recusal order at issue.” Slip op. at 7. Prior to the 2013 amendment, Section 5-6-34(a)(11) allowed direct appeal of “[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” The Court stated: “In Edge v. Edge, 290 Ga. 551 (722 SE2d 749) (2012), this Court plainly stated that such statutory provision was limited to ‘order[s] in a child custody case regarding which parent has custody regardless of finality.’ (Emphasis supplied.) Clearly, the recusal ruling is not such an order.” Slip op. at 7-8.

The Court did so state in Edge, although the matter was not quite as “plain” or “clear” as the Court suggests. Edge allowed a direct appeal under Section 5-6-34(a)(11) of an order granting a motion to set aside an order of custody. The issue of an order not affecting custody was not then before the Court. Prior to Edge, in Avren v. Garten, 289 Ga. 186, 192 (710 SE2d 130) (2011), the Court had “[a]ssum[ed] without deciding that the trial court’s denial of [a] motion to set aside [an] attorney-fee award”—i.e., an award not affecting custody—“falls within the coverage of OCGA § 5–6–35(a)(11).” And after Edge (decided February 27, 2012), concern remained over the scope of the pre-amendment statute. In Collins v. Davis, 318 Ga. App. 265 (733 SE2d 798) (Oct. 30, 2012), which cited Edge, the Court of Appeals found that the “clear and unambiguous words of [OCGA § 5-6-34(a)(11)] quite plainly permit[ted] a direct appeal” from a child support award (again, not an award affecting custody), because “[the] award was rendered in a child custody case.” Id. at 268. The court “sympathize[d] with those who believe that the General Assembly really intended that only the custody or visitation terms in a child custody case should be directly appealable,” but believed that “given the wording used by the General Assembly … it [was] incumbent upon the Legislature to further refine this language if this Code section opened up too broadly those orders and judgments which could be directly appealable.” Id. at 269 n.17. The Appellate Practice Section of the State Bar took note of the need for legislative action, and the General Assembly passed SB 204 in March 2013. Thus, the Supreme Court’s decision that the old version of Section 5-6-34(a)(11) only applied to orders regarding custody comes, somewhat ironically, only after the General Assembly amended that statute to say explicitly what the Court now says it meant all along.