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.
