Opinion
A23A0019
08-16-2022
DAYNELL SHELDON O'CONNOR, ADMINISTRATOR v. BRUCE ANTONIO CID
The Court of Appeals hereby passes the following order:
Daynell Sheldon O'Connor, the administrator of the estate of Pearlette Nicole Strong-Cid, filed a motion for new trial and to vacate and set aside an order awarding a year's support to the decedent's minor child. The probate court denied the motion, and O'Connor filed this appeal. We, however, lack jurisdiction.
The appeal was initially transmitted to the Cobb County Superior Court, which entered an order remitting the appeal to this Court. The appeal is properly before this Court. See OCGA §§ 15-9-120 (2); 15-9-123 (a).
The relevant facts show that Bruce Cid was married to Pearlette Nicole Strong-Cid, and the two had a child who was a minor at the time of the mother's death. Bruce Cid filed the petition for year's support on behalf of the child. O'Connor failed to respond, and the probate court granted the petition on September 4, 2019. On September 30, 2019, O'Connor filed a "Motion for New Trial and Motion to Vacate and Set Aside" the year's support order, arguing that he had not been properly served, that Bruce Cid had a conflict of interest, and that a guardian ad litem was required to pursue the year's support. The probate court denied the motion, and O'Connor appeals this ruling.
Construing O'Connor's motion according to its substance rather than its nomenclature, he sought to have the year's support order set aside under OCGA § 9-11-60 (d). See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690 S.E.2d 397) (2010) (in pleadings, substance controls over nomenclature). An appeal from an order denying a motion to set aside under OCGA § 9-11-60 (d) must be taken by application for discretionary review. See OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga.App. 116 (640 S.E.2d 688) (2006). "Compliance with the discretionary appeals procedure is jurisdictional." Smoak v. Dept. of Human Resources, 221 Ga.App. 257, 257 (471 S.E.2d 60) (1996). O'Connor's failure to follow the required appellate procedure deprives us of jurisdiction over this appeal, which is hereby DISMISSED.