Collins v. Davis

733 S.E.2d 798, 318 Ga. App. 265, 2012 Fulton County D. Rep. 3463, 2012 Ga. App. LEXIS 897
CourtCourt of Appeals of Georgia
DecidedOctober 30, 2012
DocketA12A1445
StatusPublished
Cited by41 cases

This text of 733 S.E.2d 798 (Collins v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Davis, 733 S.E.2d 798, 318 Ga. App. 265, 2012 Fulton County D. Rep. 3463, 2012 Ga. App. LEXIS 897 (Ga. Ct. App. 2012).

Opinion

Ray, Judge.

In 2007, Brian Lamar Collins filed a petition to legitimate his nine-year-old daughter, and a Walton County Superior Court judge issued final orders regarding child custody and visitation and requiring Collins to pay child support. Approximately four years later, the mother, De Anna Davis, filed a petition for modification of custody, visitation, and child support, as well as a motion for contempt and a demand for attorney fees. Collins counterclaimed, requesting a downward modification of child support. On December 30, 2011, the trial judge issued a final order, establishing a new visitation schedule and ordering a reduction in Collins’ child support payment.

Collins filed an application for discretionary review, specifically challenging the court’s order with respect to child support, claiming the trial court should have further decreased his child support payment. He does not appeal the new visitation schedule. We granted Collins’ application for discretionary review for the sole purpose of determining whether Collins properly applied for discretionary review or whether he was, in fact, entitled to a direct appeal. After a thorough review of the case, we find that Collins was entitled to a direct appeal in this case. However, because Collins’ enumerations of error lack merit, we affirm the trial court’s order.

[266]*2661. It is incumbent upon appellate courts to inquire into their own jurisdiction.1 We, therefore, must address whether Collins’ appeal, which he made by way of application for discretionary review under OCGA § 5-6-35, was proper. Two Code sections determine the method for pursuing appeals to this Court: OCGA § 5-6-34, which describes the trial court’s judgments and orders that may be appealed directly, and OCGA § 5-6-35, which lists cases in which an application for appeal is required. Prior to 2007, there was no right to a direct appeal in any domestic relations or child custody case, and the present case clearly would have fallen under the ambit of former OCGA § 5-6-35 (a) (2), which provided that applications for discretionary review were to be filed from “[ajppeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases. . . .”

In 2007, however, the GeneralAssembly amendedboth OCGA §§ 5-6-34 and 5-6-35, removing all references to child custody cases in OCGA § 5-6-35 (a) (2), and enacting subsection (11) in OCGA § 5-6-34 (a) to provide that direct appeals may be taken from “[ajll 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.” Appellate courts have subsequently found that the effect of this broad language is that a party seeking to appeal any order in a child custody case is no longer required to comply with the interlocutory appeal procedures of OCGA § 5-6-34 (b) or OCGA § 5-6-35 (a) (2).2 These cases, however, dealt with appeals of actual child custody issues and do not address the issue presented in this case.

OCGA § 5-6-35 (a) (2), on the other hand, still mandates that “judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders” require an application for appeal. It is well established that matters concerning child support fall into the category of “other domestic relations” and, therefore, require an application for discretionary appeal.3 In fact, we have said before that “[r] egardless how this case was couched [267]*267or pursued, it involves collection of child support moneys [sic] and it is a domestic relations matter.”4

Consequently, this case raises the issue of whether the right to a direct appeal in child custody/visitation cases,5 set forth in OCGA § 5-6-34 (a) (11), applies when a party strictly appeals the child support awarded in an order that also involves child custody or visitation. This is not an easy question to answer. In a recent case, this Court granted discretionary review to rule on child support issues that arose from an order providing for the legitimation, custody, and support of a minor child.6 We did not address whether the case was properly brought as an application or whether it should have been directly appealable. This Court also has held that interlocutory, temporary custody orders are directly appealable, even though the orders are entered in divorce actions.7 The Supreme Court of Georgia, on the other hand, recently held that an appeal of a divorce judgment or deprivation proceeding in which child custody was an issue must come by way of an application because the child custody issues in those cases are merely ancillary to the divorce action or deprivation proceeding.8 According to the Supreme Court,

[b]oth 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). 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).9

“Were our precedent to hold otherwise, litigants could avoid OCGA § 5-6-35’s discretionary application requirements by seeking relief in [268]*268the trial court that triggers the right to direct appeal, regardless of the underlying subject matter at issue.”10

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Cite This Page — Counsel Stack

Bluebook (online)
733 S.E.2d 798, 318 Ga. App. 265, 2012 Fulton County D. Rep. 3463, 2012 Ga. App. LEXIS 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-davis-gactapp-2012.