2021 Georgia Code
Title 5 - Appeal and Error
Chapter 6 - Certiorari and Appeals to Appellate Courts Generally
Article 2 - Appellate Practice
§ 5-6-35. Cases Requiring Application for Appeal; Requirements for Application; Exhibits; Response; Issuance of Appellate Court Order Regarding Appeal; Procedure; Supersedeas; Jurisdiction of Appeal; Appeals Involving Nonmonetary Judgments in Custody Cases

1. Appeals in the following cases shall be taken as provided in this Code section:
   1. Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers' Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by certiorari or de novo proceedings; provided, however, that this provision shall not apply to decisions of the Public Service Commission and probate courts and to cases involving ad valorem taxes and condemnations;
   2. Appeals from judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders;
   3. Appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and such amount is $2,500.00 or less;
   4. Appeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code Section 5-6-34;
   5. Appeals from orders revoking probation;

      (5.1) Appeals from decisions of superior courts reviewing decisions of the Sexual Offender Registration Review Board;

      (5.2) Appeals from decisions of superior courts granting or denying petitions for release pursuant to Code Section 42-1-19;

   6. Appeals in all actions for damages in which the judgment is $10,000.00 or less;
   7. Appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial;
   8. Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment;
   9. Appeals from orders granting or denying temporary restraining orders;
   10. Appeals from awards of attorney's fees or expenses of litigation under Code Section 9-15-14;
   11. Appeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal; and
   12. Appeals from orders terminating parental rights.
2. All appeals taken in cases specified in subsection (a) of this Code section shall be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction. The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.
3. The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed and should include a copy of the petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion. An applicant may include copies of such other parts of the record or transcript as he deems appropriate. No certification of such copies by the clerk of the trial court shall be necessary in conjunction with the application.
4. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties as provided by law, except that the service shall be perfected at or before the filing of the application. When a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.
5. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The response may point out that the decision of the trial court was not error, or that the enumeration of error cannot be considered on appeal for lack of a transcript of evidence or for other reasons.
6. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 30 days of the date on which the application was filed.
7. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.
8. The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.
9. This Code section shall not affect Code Section 9-14-52, relating to practice as to appeals in certain habeas corpus cases.
10. When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. Thereafter the appeal shall proceed as provided in subsection (g) of this Code section.
11. Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

(Ga. L. 1979, p. 619, §§ 3, 6; Ga. L. 1982, p. 3, § 5; Ga. L. 1984, p. 22, § 5; Ga. L. 1984, p. 599, § 2; Ga. L. 1986, p. 1591, § 2; Ga. L. 1988, p. 1357, § 1; Ga. L. 1991, p. 412, § 1; Ga. L. 1994, p. 347, § 2; Ga. L. 1997, p. 543, § 1; Ga. L. 2007, p. 554, § 3/HB 369; Ga. L. 2010, p. 168, § 1/HB 571; Ga. L. 2011, p. 562, § 2/SB 139.)

The 2011 amendment, effective July 1, 2011, added subsection (k). See editor's note for applicability.

- Petitions for alimony or child support when no divorce is pending, §§ 19-6-10,19-6-11.

Filings in clerk's office, Rules of the Supreme Court of the State of Georgia, Rule 1.

Application for leave to appeal final judgment, Rules of the Supreme Court of the State of Georgia, Rule 25.

Leave to appeal interlocutory order, Rules of the Court of Appeals of the State of Georgia, Rule 29.

- Pursuant to Code Section 28-9-5, in 1997, "(a) of this Code section" was substituted for "(a) of this Code Section" in the first sentence of subsection (j).

- Ga. L. 1986, p. 1591, § 3, not codified by the General Assembly, provided that that Act applies to actions filed or presented for filing on or after July 1, 1986, and to any action pending on July 1, 1986, with respect to any claim, defense, or other position which is first raised in the action on or after July 1, 1986.

Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides that: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."

Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment applies to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

Ga. L. 2011, p. 562, § 4/SB 132, not codified by the General Assembly, provides that the amendment by that Act shall apply to all notices or applications for appeal filed on or after July 1, 2011.

- For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For annual survey of domestic relations law, see 35 Mercer L. Rev. 127 (1983). For article surveying recent developments in administrative law, see 37 Mercer L. Rev. 503 (1985). For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For article, "Battling the Many-Headed Hydra: Abusive Litigation Law in Georgia," see 25 Ga. St. B.J. 65 (1988). For article, "Intangible Tax Appeals After Blank v. Collins; The Uncertainty Continues," see 27 Ga. St. B.J. 78 (1990). For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). For article, "Let's Revise Appellate Procedure in Georgia," see 27 Ga. St. B.J. 135 (1991). For article, "Getting Certiorari Granted", 28 Ga. St. B.J. 90 (1991). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of domestic relations, see 43 Mercer L. Rev. 243 (1991). For article, "Appeals, Interlocutory and Discretionary Applications, and Post-Judgment Motions in the Georgia Courts: The Current Practice and the Need for Reform Legislation," see 44 Mercer L. Rev. 17 (1992). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of Administrative Law, see 57 Mercer L. Rev. 1 (2005). For annual survey of appellate practice and procedure, see 57 Mercer L. Rev. 35 (2005). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For annual survey on domestic relations, see 61 Mercer L. Rev. 117 (2009). For annual survey of law on appellate practice and procedure, see 62 Mercer L. Rev. 25 (2010). For article, "Administrative Law," see 63 Mercer L. Rev. 47 (2011). For article, "Appellate Practice and Procedure," see 63 Mercer L. Rev. 67 (2011). For annual survey on domestic relations law, see 64 Mercer L. Rev. 121 (2012). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012). For article, "Division of Labor: The Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals," see 30 Ga. St. U.L. Rev. 925 (2014). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals," see 68 Mercer L. Rev. 1 (2016). For annual survey on administrative law, 68 Mercer L. Rev. 59 (2016). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018). For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019). For annual survey on zoning and land use law, see 71 Mercer L. Rev. 363 (2019). For note, "Restrictions on the Right to Direct Appeal under Georgia's Appellate Practice Act," see 21 Ga. St. B.J. 43 (1984).

ANALYSIS

• General Consideration
• Application

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 252 et seq.

- 4 C.J.S., Appeal and Error, § 40, 401 et seq., 477 et seq.

- Coram nobis on ground of newly discovered evidence, 33 A.L.R. 84.

Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422.

Retrospective increase in allowance for alimony, separate maintenance, or support, 52 A.L.R.3d 156.

Validity, construction, and application of State Prison Litigation Reform Acts, 85 A.L.R.6th 229.