Opinion
S10A0471
DECIDED: MARCH 29, 2010
The trial court entered a final divorce decree which dissolved the parties' marriage, distributed their property and awarded primary physical custody of the parties' minor child to Sharon Todd (Mother). During the same term of court, Walter Todd (Father) filed a motion for reconsideration, requesting primary physical custody of the child. After a hearing, the trial court vacated the child custody, visitation and child support provisions of the original decree, and revised the decree to award physical custody of the child to Father. See Bagley v. Robertson, 265 Ga. 144, 146 ( 454 SE2d 478) (1995) (trial court's inherent power to modify its judgment extended where motion for reconsideration filed during same term of court as judgment). Mother filed this direct appeal, challenging the custody award in the final divorce decree.
"It is incumbent upon this Court to inquire into its own jurisdiction. [Cit.]" Nix v. Watts, 284 Ga. 100 ( 664 SE2d 194) (2008). A direct appeal will not lie from a judgment granting a divorce, and instead an appeal from such a judgment must be brought by application. OCGA § 5-6-35 (a) (2). Likewise, prior to 2007, there was no right to a direct appeal in child custody cases. Instead, pursuant to the former version of OCGA § 5-6-35 (a) (2), appeals in such cases had to be brought by application. However, in 2007, the General Assembly amended both OCGA § 5-6-34 and § 5-6-35, removing all references to child custody cases in § 5-6-35 (a) (2), and enacting subsection (11) in § 5-6-34 (a), to provide that direct appeals may be taken from "judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders." Consequently, this case raises the issue of whether the right to a direct appeal in child custody cases, set forth in OCGA § 5-6-34 (a) (11), applies to final decrees of divorce in which child custody is an issue.
Both OCGA §§ 5-6-34 (a) and 5-6-35 (a) are involved when, as here, a trial court issues a judgment listed in the direct appeal statute in a case whose subject matter is covered under the discretionary appeal statute. In resolving similar conflicts, this court has ruled that an application for appeal is required when the "underlying subject matter" is listed in OCGA § 5-6-35 (a). [Cit.] Therefore, the discretionary application procedure must be followed, even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a). [Cits.]
Rebich v. Miles, 264 Ga. 467, 468 ( 448 SE2d 192) (1994).
In this case, the underlying subject matter is the divorce action resulting in a final divorce decree. Although the divorce decree here determined, among other things, child custody, such determination does not transform this into a "child custody case" as that phrase is used in OCGA § 5-6-34 (a) (11). In enacting that code section and revising OCGA § 5-6-35 (a) (2), the General Assembly specifically provided that its amendments "shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008." Ga. L. 2007, pp. 554, 569, § 8. A divorce action is not a child custody proceeding, but is a proceeding brought to determine whether a marriage should be dissolved. See OCGA § 19-5-1 et seq. All other issues in a divorce action, including child custody, are merely ancillary to that primary issue. In a somewhat similar context, this Court has held that even though a deprivation proceeding necessitates a determination as to child custody, "the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters." In the Interest of J.P., 267 Ga. 492 ( 480 SE2d 8) (1997).
This Court has not previously resolved the issue raised by this direct appeal, but it has interpreted the effective date of the act in question, holding that "the salient date for triggering the change in appellate procedure . . . is the time the legal action is filed, not the date that an order sought to be appealed in such action is issued." In the Interest of K. R., 285 Ga. 155, 156 ( 674 SE2d 288) (2009). Although not conclusive, this holding is consistent with the idea that the nature of the legal action filed is critical to the determination of the correct appellate procedure.
Three Court of Appeals cases, which have allowed direct appeals under OCGA § 5-6-34 (a) (11), exemplify the kind of "child custody case" that is encompassed by that code section. In Taylor v. Curl, 298 Ga. App. 45 ( 679 SE2d 80) (2009), the father filed a petition for temporary custody, which the trial court granted. The mother directly appealed. The Court of Appeals held that she "was not required to comply with either the interlocutory or discretionary appeal procedures in this case." Taylor v. Curl, supra.
In Martinez v. Martinez, 301 Ga. App. 330 ( 687 SE2d 610) (2009), during a pending divorce action, the trial court granted the father's motion to enforce a settlement agreement pertaining to child custody. The mother filed a direct appeal challenging enforcement of the settlement agreement. The Court of Appeals held that the direct appeal was authorized because the order being appealed predicated the child custody award on the settlement agreement, not on the allegations of the divorce action. Martinez v. Martinez, supra at 332 (1).
In Lurry v. McCants, ___ Ga. App. ___ (Case No. A09A1743, decided February 1, 2010), the father filed a petition to modify child custody that had been established by a consent order. The trial court denied the petition, and the Court of Appeals noted that the father's direct appeal was authorized because it stemmed from the modification petition and the order thereon. Lurry v. McCants, supra at ___, fn. 1.
This case is materially different from Taylor,Martinez and Lurry. Unlike those cases, there is not a separate child custody order being appealed. Rather, there is a final divorce decree which includes a child custody determination. Thus, even if the only relief sought on appeal pertains to that custody decision, the underlying subject matter is still the divorce action and its resulting final decree.
We reiterate that the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal. A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35. This approach fulfills the legislature's intent to give appellate courts more discretion in managing their caseload. Otherwise, any party [to a divorce involving child custody] could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal.
Rebich v. Miles, supra at 469. 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). Since Mother did not follow the required application procedures, the appeal is not properly before this Court.
Appeal dismissed. All the Justices concur.