WHEN IS FINAL REALLY "FINAL"??

      An issue that keeps cropping up in family law cases involves whether an order issued by the court is ripe for an appeal.   Inexperienced lawyers are sometimes tripped up here, and file appeals at the wrong time, or use the wrong procedure.  At best this can add a layer of unnecessary cost and delay on a case, and at worst it can cost a client their right to appeal an unfavorable ruling.   

    This happens, because only "final" orders are subject to "direct appeal", while other cases must be taken by first filing a discretionary "application for appeal".  See O.C.G.A. §§ 5-6-34, 5-6-35  It is said that direct appeals are "as of right" while discretionary appeals require the approval of the court beforehand.   The failure to pick the right procedure can be fatal to the attempted appeal.  

    This gets complicated because merely titling an order as "final" does not mean its final if there are issues still open and unaddressed.  In the family law context this often involves the issue of whether the court will award attorney fees.   Attorney fees consideration is often "reserved" by the court until after the "final" order is issued.   Even where it is not explicitly reserved, a party has the right to file a motion for fees under O.C.G.A. § 9-15-14 up to 45 days after the otherwise "final" order, keeping the case alive in the trial court.   This has led to some conflicting results at the trial and appellate level, as some judges will treat a decision as "final" even where the issue of attorney fees is unresolved.   

    A recent Georgia Court of Appeals decision in Miller et al v. Miller,  Case Number A20A0377 (August 13, 2020) sheds some light in this confusing corner and helps clarify when pending attorney fees render a decision non-final.   In Miller, a party challenged the opposing party's notice of appeal, contending that the underlying judgment was not "final" because the issue of attorney fees was reserved by the court.   The Court of Appeals clarified that reserved attorney fees will only make a judgment non-final, if they arose "from the transaction underlying the cause of action in litigation", that is, pre-lawsuit activity.   By comparison, if the attorney fees claim were based on conduct in the lawsuit itself or afterwards (such as a claim under O.C.G.A. § 9-15-14) then the judgment was considered "final".   In Miller, the only attorney fee claim arose under O.C.G.A. § 9-15-14, which could have been filed up to 45 day after the final judgment, thus the judgment was "final" for purposes of appeal.  

    So when dealing with a family law case, the takeaway appears to be that "reserved" or pending attorney fees claims will only render a judgment "non-final" if they involve claims under statutes other than O.C.G.A. § 9-15-14.  Alert practitioners will pay attention, because of the numerous statutory provisions for attorney fees in family law cases and the frequency with which judges fail to identify the specific statutory authority underpinning an attorney fee award.  Typically judges won't consider specific statutory sources of attorney fees at the time they reserve the issue, and often fail to identify the authority when making an award.  It may be wise now to ask the judge, when reserving attorney fees, to clarify the statutory basis beforehand to avoid uncertainty over "finality".