Voyles v. Voyles

• Decision Date: 17 April 2017
• Docket Number: S17A0970
• Citation: 799 S.E.2d 160
• Parties: VOYLES v. VOYLES.
• Court: Georgia Supreme Court

301 Ga. 44

799 S.E.2d 160

VOYLES

v.VOYLES.

S17A0970

Supreme Court of Georgia.

Decided: April 17, 2017

James Michael Money, Edwards, McLeod & Money, P.C., Suite B, 8701 Hospital Drive, Douglasville, Georgia 30134, for Appellant.

Suzanne Elizabeth Henrickson, Lacey Marie Briasco, Henrickson & Sereebutra, LLC, P.O. Box 1657, Dallas, Georgia 30132, William Pike Pike, William R Pike & Associates LLC, 199 Frasier Street, SE, Marietta, Georgia 30060, for Appellee.

Benham, Justice.

Appellant James E. Voyles (Husband) and appellee Tara H. Voyles (Wife) were divorced in February 2015. In the divorce proceeding, the trial court entered a final decree which named Wife as the primary physical custodian of the parties' child and approved and incorporated the terms of the parties' parenting plan. In December 2015, Husband filed a petition in which he sought to hold Wife in contempt of the property distribution provisions of the divorce decree, in contempt of various portions of the parenting plan, and by later amendment sought to be named as the child's primary physical custodian. Wife filed her own petition for modification and contempt, in which, among other things, she sought to modify the parenting plan incorporated into the divorce decree. Husband answered Wife's petition and filed a counterclaim, again requesting in relevant part, a modification of custody to award him full or joint physical custody of the child. Wife moved to dismiss Husband's petition for contempt and his counterclaim to her petition. Pursuant to a rule nisi, the trial court consolidated the two cases and conducted a joint hearing, at which Husband was not present. The trial court then entered a joint order on August 2, 2016, granting Wife's motion to dismiss Husband's contempt petition (as amended) and his counterclaim to her petition; granting her motion to find Husband in contempt; granting her petition to modify the 2015 divorce decree with respect to various aspects of the parenting plan; and ordering Husband to pay past due unreimbursed health care expenses and attorney fees.

Acting pro se, Husband filed a motion in which he sought to set aside the August 2 joint order and sought a new hearing on the ground that he was unaware of the hearing date because he had not received proper notice of it. After conducting a hearing, the trial court entered an order dated October 14, 2016, denying Husband's motion to set aside and for a new hearing. Husband then filed a notice of appeal directed to the Court of Appeals seeking review of this October 2016 order, and the Court of Appeals transferred the case to this Court. Inasmuch as this appeal seeks review of the denial of what was, in substance, a motion to set aside an order that ruled on petitions for contempt involving, in part, aspects of the divorce decree other than custody, this Court has subject matter jurisdiction. See Rogers v. McGahee , 278 Ga. 287 (1), 602 S.E.2d 582 (2004).¹

Nevertheless, an issue remains as to whether Husband followed the proper procedure for seeking appellate review. We conclude he did not, and that the appeal must be dismissed. We dismiss this case by opinion, as opposed to the usual dismissal order, so that we may clarify the law and provide guidance regarding which appellate procedure should be followed in a case like this one where the issue raised on appeal concerns a matter other than custody (here, whether the trial court properly denied Husband's motion to set aside).

Generally, appeals from orders entered in domestic relations cases must be pursued by discretionary application.² See OCGA § 5-6-35 (a) (2). A direct appeal is proper under OCGA § 5-6-34 (a) (11) from all judgments or orders "in child custody cases" that award, refuse to change, or modify child custody, or orders that hold or decline to hold persons in contempt of child custody orders. This Court has interpreted OCGA § 5-6-34 (a) (11) as allowing a direct appeal from the types of orders specified in that statute that are entered in "custody cases" but not from orders relating to child custody issues that are entered in "divorce cases." See Hoover v. Hoover , 295 Ga. 132, 134 (1), 757 S.E.2d 838 (2014) (where child custody issues are ancillary to a divorce action, the determination of child custody does not transform the case into a "child custody case"); Todd v. Todd , 287 Ga. 250, 251 (1), 703 S.E.2d 597 (2010)

("[a]ll other issues in a divorce action, including child custody, are merely ancillary to [the] primary issue [of whether the marriage should be dissolved]"). And, even if the appeal arises from the type of order specified in OCGA § 5-6-34 (a) (11) and that order was entered in a "child custody" case, this Court has also looked to the issue raised on appeal in determining whether a party was entitled to a direct appeal. For example, in Froehlich v. Froehlich ,³ this Court noted that visitation is treated as an aspect of child custody for purposes of appellate procedure and held that therefore a direct appeal was the proper appellate procedure for seeking review of an order finding the father in contempt for willfully violating the visitation provisions of a modified parenting plan where father was challenging that ruling on appeal. See also Singh v. Hammond , 292 Ga. 579, 740 S.E.2d 126 (2013) (noting the Court granted a discretionary application where the case started as a child custody modification action but child support was the only issue raised on appeal); Vines v. Vines , 292 Ga. 550, 551 (1) n.2, 739 S.E.2d 374 (2013) (noting, in a case involving child custody and visitation rights, that a direct appeal from that portion of the trial court order that related only to a child support ruling had been dismissed for failure to file an application to appeal).

While this Court has generally followed a rule that looks at the issue raised on appeal to determine the proper procedure for seeking appellate review in domestic relations cases, in at least one case, this Court retained a direct appeal from a post-divorce modification action where the only enumerations of error concerned child support, not child custody. See Strunk v. Strunk , 294 Ga. 280, 754 S.E.2d 1 (2013). In the Strunk case, however, this appellate procedure issue was neither raised nor addressed. Additionally, this Court did not appear to follow the "issue-raised-on-appeal" rule in Edge v. Edge ,⁴ when we held that an order granting a motion to set aside a previous order relating, among other things, to child custody and visitation rights was directly appealable under OCGA § 5-6-34 (a) (11), even though the issue raised on appeal was whether the trial court...