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Islamkhan v. Khan

Because the husband's failure to follow the interlocutory appeal procedures rendered his notice of appeal nugatory, his notice of appeal was not a supersedeas and did not deprive the trial court of jurisdiction to consider his motion for reconsideration of the divorce decree or from entering its order modifying that order; accordingly, the trial court properly denied the wife's motion to vacate void judgment.

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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.

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