Bedford v. Bedford

273 S.E.2d 167, 246 Ga. 780, 1980 Ga. LEXIS 1242

• Court: Supreme Court of Georgia
• Decided: December 3, 1980
• Docket: 36779
• Status: Published

Opinions

Clarke, Justice.

This is a direct appeal from various orders in a divorce case granting and denying summary judgment to the parties on issues involving the effect of an alleged settlement agreement, equitable division of property and disqualification of attorneys. The husband seeks to appeal the granting of a partial summary judgment to the wife on the issue of the settlement agreement under Code Ann. § 81A-156 (h) and under Code Ann. § 6-701 (b) seeks to appeal the other orders denying summary judgment. While the orders are procedurally subject to a direct appeal, see Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980), we find the underlying subject matter upon which our constitutional jurisdiction is based is that of divorce, and this appeal is therefore dismissed for failure to comply with Code Ann. § 6-701.1 (a)(2).

We have previously held that in domestic relations cases, a failure to file an application to appeal will result in dismissal of the appeal, Brown v. Brown, 245 Ga. 44 (263 SE2d 438) (1980); Martinez v. Martinez, 245 Ga. 211 (264 SE2d 231) (1980). The divorce had already been granted in this case and the remaining issues involving alimony, property division and attorney fees reserved for trial. These pretrial summary judgments are a continuing part of a domestic relations action, and if this court has jurisdiction over the issues, it is a result of the fact that they arise out of the suit for divorce.

Decided December 3, 1980. Davis, Matthews & Quigley, Baxter L. Davis, David J. Llewellyn, for appellant. Alera Jill Elliott, Devine & Morris, for appellee.

The appellant argues that the issue of equitable division of property invokes our equity jurisdiction rather than divorce jurisdiction. Under the laws of this state, the court or jury has the authority to award the property of one spouse to the other spouse based solely on an equitable division of property. Stokes v. Stokes, 246 Ga. 765 (1980). (In Stokes we had granted the wife’s application to appeal.) This right does not rely upon fraud or trust theories, but arises from the marital relationship. Since this is not an equity case setting forth a cause of action which would exist except as arising from a divorce, we hold the appeal procedures are governed by Code Ann. § 6-701.1. The jurisdiction is not changed by the fact that the appeal seeks a review of a summary judgment. See Citizens &c. Nat. Bank v. Rayle, 246 Ga. 727 (1980).

Appeal dismissed.

All the Justices concur, except Hill, J., who concurs specially and Bowles and Marshall, JJ., who concur in the judgment only.