THIRD DIVISION

MCFADDEN, C. J.,

DOYLE, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

November 25, 2020

In the Court of Appeals of Georgia

A20A1697. CAPEHART v. MITCHELL et al.

MCFADDEN, Chief Judge.

Christopher Capehart appeals from the trial court’s order setting aside a final

child custody modification order. As detailed below, the order is not directly

appealable under OCGA § 5-6-34 (a) because the case remains pending below and

the issues raised in this appeal do not concern child custody. And Capehart did not

follow the proceduresfor an interlocutory appealset forth in OCGA § 5-6-34 (b). For

these reasons, we lack appellate jurisdiction and so we dismiss the appeal. But we

deny appellee Mayah Mitchell’s request for frivolous appeal sanctions.

1. Facts and procedural history.

This appeal is part of an ongoing child custody dispute between former

spouses. Capehart and his former wife, Mayah Mitchell, divorced in April 2014.
Immediately thereafter Capehart petitioned to modify the custodial arrangement that

had been established in the divorce decree for their two children, who were then both

minors1

. In his petition, Capehart alleged that Mayah Mitchell’s new husband, Todd

Mitchell, had abused one of the children. Capehart also obtained a temporary

protective order against Todd Mitchell.

The trial court entered a series of interim consent orders that, among other

things, awarded Mayah Mitchell visitation with the children but barred Todd Mitchell

from being around them. The first of the interim orders also permitted Todd Mitchell

to intervene in the custody modification action. 

The modification action progressed, and in late 2016 Capehart and Mayah

Mitchell entered into a mediated settlement agreement giving Capehartsole physical

custody and control over major decisions regarding the children, giving Mayah

Mitchell visitation, and prohibiting the children from being in Mayah Mitchell’s

house or otherwise around Todd Mitchell. Todd Mitchell did not sign the mediated

settlement agreement. 

Capehart moved the trial court to make the mediated settlement agreement the

order of the court, and on March 28, 2017, the trial court entered an order

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 One of the two children was born in 2002 and is now a legal adult. 

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(hereinafter, “the March 2017 order”) adopting that agreement. The March 2017 order

modified the earlier custodial arrangement to award Capehart sole legal and physical

custody of the children and to give Mayah Mitchell visitation outside Todd Mitchell’s

presence. The March 2017 order identified Todd Mitchell as an intervening party in

the case. 

In a February 2019 motion to set aside under OCGA § 9-11-60 (d), as well as

in another proceeding not before us today,

2 Mayah Mitchell sought relief from the

March 2017 order. In the subject motion to set aside, Mayah Mitchel contended that

(1) the trial court lacked jurisdiction over Todd Mitchell, who was named as an

intervening party in that order, because Todd Mitchell had no standing to intervene

in the case; and (2) Todd Mitchell did notsign the mediated settlement agreement that

the trial court incorporated into the March 2017 order. On January 16, 2020, the trial

court entered the order from which Christopher Capehart now appeals.

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In a separate action before a separate trial court, Mayah Mitchell also

petitioned to modify the custodial arrangement established in the March 2017 order.

That trial court dismissed Mayah Mitchell’s action for failing to state a claim, but we

reversed the dismissal in Mitchell v. Capehart, 353 Ga. App. 461 (838 SE2d 125)

(2020).

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The trial court granted the motion to set aside the March 2017 order on the ground

that Todd Mitchell lacked standing in and so was not a proper party to the 2014

custody modification action. 

2. Appellate jurisdiction.

In both her appellate brief and a motion to dismiss, Mayah Mitchell arguesthat

we lack jurisdiction over this appeal. She is correct.

Capehart brought this case as a direct appeal. But the effect of the order on

appeal, which sets aside the March 2017 order, isthat the case remains pending below

because the trial court now must enter a new ruling on Capehart’s 2014 petition to

modify custody. See Epstiner v. Spears, 340 Ga. App. 199, 202 (1) (796 SE2d 919)

(2017) (where the trial court sets aside a judgment under OCGA § 9-11-60 (d), the

case isreturned to the posture it occupied prior to the entry of judgment). So the order

on appeal is interlocutory. Consequently, to obtain appellate review Capehart was

required to follow the interlocutory appeal procedures set out in OCGA § 5-6-34 (b)

unless this ruling fell within one of the categories of rulings subject to direct appeal

under OCGA § 5-6-34 (a).

Capehart argues that this ruling falls under OCGA § 5-6-34 (a) (11), which

permits direct appellate review of “[a]ll judgments or orders in child custody cases

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awarding, refusing to change, or modifying child custody or holding or declining to

hold persons in contempt of such child custody judgment or orders[.]” But our

Supreme Court held in Voyles v. Voyles, 301 Ga. 44 (799 SE2d 160) (2017), that a

judgment or order is not directly appealable under OCGA § 5-6-34 (a) (11) unlessthe

case also involves “custody [as] an issue on appeal.” Id. at 47. The Court in Voyles

held that an appeal from the denial of a motion to set aside an order that, among other

things, denied a father’srequest to modify custody, was not directly appealable under

OCGA § 5-6-34 (a) (11) because the appellant did not “directly challenge[ ] on appeal

the court’s substantive ruling refusing to change custody.” Voyles, 301 Ga. at 47.

Instead, the father in Voyles sought to set aside the modification order for a

procedural reason, because he did not receive proper notice of a hearing. Id. at 44-45.

By setting aside the custodial arrangement established in the March 2017 order,

the order on appeal in this case had the effect of modifying child custody. But

Capehart’s appeal from the set-aside order does not directly challenge a substantive

ruling regarding child custody. Instead, all of his arguments on appeal concern Todd

Mitchell’s status as an intervening party. So under the rule discussed in Voyles, this

case is notsubject to direct appeal under OCGA § 5-6-34 (a) (11). To obtain appellate

review of this interlocutory order, therefore, Capehart was required to follow the

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procedures set forth in OCGA § 5-6-34 (b). Because he did not do so, we dismiss this

appeal for lack of appellate jurisdiction.

3. Sanctions.

Although we agree with Mayah Mitchell that we lack appellate jurisdiction in

this case, we do not find that the appeal was frivolous and so we decline to grant her

request for sanctions under Court of Appeals Rule 7 (e). 

Appeal dismissed. Doyle, P. J., and Hodges, J., concur.

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