Natalie Duckworth Phillips v. Matthew Thomas Phillips

Court of Appeals
of the State of Georgia

                                                  April 26, 2021

The Court of Appeals hereby passes the following order:


      In 2020, appellant Natalie Duckworth Phillips filed a complaint for divorce
against Matthew Thomas Phillips. She also requested primary physical custody of the
parties’ three children. Prior to the initial hearing, appellant filed a motion in limine,
seeking to excluding recordings made of her and the children without her knowledge
or consent. The trial court granted temporary custody to both parties jointly, stating
that it relied on the recordings in making its custody determination. Shortly
thereafter, the trial court issued a new order prohibiting contact between the appellant
and the children due to a pending criminal matter “until further order of th[e] court.”

      Appellant now appeals from the initial temporary custody order and the denial
of her motion in limine to exclude the recordings. Appellee has filed a motion to
dismiss the appeal, arguing that appellant was required to file a discretionary
application to pursue this appeal. For the reasons that follow, we dismiss the appeal.

      The initial temporary order from which appellant seeks to appeal was later
modified by the trial court’s subsequent no contact order against appellant. Thus, any
challenge to the initial temporary custody order is moot. See Delgado v. Combs, 314
Ga. App. 419, 425 (1) (724 SE2d 436) (2012). The only other issue raised on appeal
concerns the denial of a motion in limine seeking to exclude the recordings. Because
the trial court relied on the recordings in making its decision on temporary custody,
appellant would be authorized to bring a direct appeal from that order to the extent
that she is entitled to appeal the initial temporary custody order. Landry v. Walsh, 342
Ga. App. 283, 284 (1) n. 1 (801 SE2d 553) (2017); see also OCGA § 5-6-34 (a) (11).
But the trial court’s subsequent no contact order was based on the pending criminal
matter, and not on the recorded evidence. Therefore, any appeal from the denial of the
motion in limine is moot while the no contact order remains in place. Accordingly,
we DISMISS this appeal. See OCGA § 5-6-48 (b) (3); Hughes v. Ga. Dept. of
Corrections, 267 Ga. App. 440, 443 (2) (600 SE2d 383) (2004) (“An issue is moot
when a determination is sought on a matter which, when rendered, cannot have any
practical effect on the existing controversy.”) (citation and punctuation omitted); see
also Jayko v. State, 335 Ga. App. 684, 685 (782 SE2d 788) (2016) (“Mootness is a
jurisdictional matter. When the remedy sought in litigation no longer benefits the
party seeking it, the case is moot and must be dismissed.”) (citation and punctuation

                                        Court of Appeals of the State of Georgia
                                               Clerk’s Office, Atlanta,____________________
                                               I certify that the above is a true extract from
                                        the minutes of the Court of Appeals of Georgia.
                                                Witness my signature and the seal of said court
                                        hereto affixed the day and year last above written.

                                                                                       , Clerk.

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