Smith v. McTaggart

Appellant failed to file a timely notice of appeal from a final order in child custody proceedings; consequently, the Court did not have jurisdiction over his case and dismissed the appeal.

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Bethel, Judge.Grady Smith appeals from a final order in child custody proceedings with Rosita McTaggart. On appeal, Smith argues that the trial court abused its discretion when it denied his motion for continuance prior to the final hearing after Smith discovered that his counsel was not a member of the State Bar of Georgia and could not represent him. In her response brief, McTaggart argues that the Court of Appeals does not have jurisdiction over this case because Smith failed to file a timely notice of appeal. We agree.

“The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Gibson v. State, 207 Ga. App. 491, 491 (428 SE2d 421) (1993) (citation and emphasis omitted). OCGA § 5-6-38 (a) provides, in part, that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of[.]” The record indicates, and both parties agree, that the final order in this case was entered by the trial court on February 24, 2016, and that Smith’s notice of appeal was not filed and received by the superior court clerk until March 28, 2016. As Smith notes in his reply brief, the thirtieth day following the February 24, 2016, order was March 25, 2016. Smith’s brief further indicates that the Newton County courts, where this case originated, were officially closed on March 25 in observance of Good Friday.As Smith correctly notes, according to OCGA § 1-3-1 (d) (3),[W]hen a period of time measured in days . . . is prescribed for the . . . discharge of any duty, the first day shall not be counted but the last day shall be counted . . . When the last day prescribed for such action falls on a public and legal holiday as set forth in Code Section 141, the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty.

Smith v. McTaggart

Appellant failed to file a timely notice of appeal from a final order in child custody proceedings; consequently, the Court did not have jurisdiction over his case and dismissed the appeal.

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