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. Mother then challenged the custody award in the final divorce decree by timely filing both an application for discretionary appeal in this Court and a notice of appeal in the trial court. The notice of appeal and the record were promptly transmitted to this Court, and the case was separately docketed as a direct appeal. However, the discretionary application was subsequently granted pursuant to our Pilot Project in divorce cases. Mother did not thereafter file a second notice of appeal. 1. “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.
