Opinion
A22A0230
10-20-2021
KEITH LEE STEWART v. BRIDGETTE STEWART.
The Court of Appeals hereby passes the following order:
Defendant Keith Stewart filed this direct appeal from the trial court's final judgment and decree in this divorce action. Among other rulings in the divorce decree, the trial court awarded the parties joint legal custody of their two minor children and granted Stewart's ex-wife primary physical custody of the children. We lack jurisdiction.
Under OCGA § 5-6-34 (a) (11), direct appeals may be had from "[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders." "Appeals from judgments or orders in divorce, alimony, and other domestic relations cases," however, must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (2), (b). Thus, direct appeals will not lie from "orders relating to child custody issues that are entered in divorce cases." Voyles v. Voyles, 301 Ga. 44, 45 (799 S.E.2d 160) (2017) (punctuation omitted); accord Hoover v. Hoover, 295 Ga. 132, 134 (1) (757 S.E.2d 838) (2014) ("Where, as here, child custody issues are ancillary to a divorce action, the determination of child custody does not transform the case into a 'child custody case,' as that phrase is used in OCGA § 5-6-34 (a) (11), for purposes of determining the appropriate method for appealing a child custody order.").
"Because this is not a child custody case, but is a divorce case in which child custody is an issue, OCGA § 5-6-35 (a) (2) requires an application for discretionary appeal, and a direct appeal is not authorized by OCGA § 5-6-34 (a) (11)." Todd v. Todd, 287 Ga. 250, 252 (1) (703 S.E.2d 597) (2010); accord Ford v. Ford, 347 Ga.App. 233, 234 (818 S.E.2d 690) (2018). "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). Stewart's failure to follow the required appellate procedure deprives us of jurisdiction over this direct appeal, which is hereby DISMISSED. See Ford, 347 Ga.App. at 234.
Stewart's motion to stay enforcement of the divorce decree during this appeal is DENIED as MOOT.