Damian Dixon v. Everlyn Dixon

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 06, 2018

The Court of Appeals hereby passes the following order: A18A1617, A18A1618. DAMIAN DIXON v. EVERLYN DIXON (two cases).

Damian Nixon filed a motion to reopen judgment under the Servicemembers Civil Relief Act, 50 USC § 3901 et seq., after the trial court entered a final decree of divorce awarding his wife child custody, child support, spousal support, attorney’s fees, and an equitable division of marital property. The trial court denied his motion to reopen and Damian Nixon filed a notice of appeal on January 12, 2017. On January 10, 2018, the trial court dismissed his appeal under OCGA § 5-6-48 (c) due to his unreasonable delay in filing a transcript. Case No. A18A1617 stems from the trial court’s dismissal of the appeal, and Case No. A18A1618 is the appeal from the trial court’s denial of his motion to reopen. We, however, lack jurisdiction. Regarding Case No. A18A1618, generally appeals from orders in domestic relations cases must be pursued by discretionary application. See OCGA § 5-6-35 (a) (2). “[C]ompliance with the discretionary appeals procedure is jurisdictional.” Fabe v. Floyd, 199 Ga. App. 322, 332 (1) (405 SE2d 265) (1991). Although OCGA § 5-6-34 (a) (11) permits a direct appeal from all judgments or orders in “child custody cases,” the issue raised on appeal governs whether a custody order may be appealed directly, and here the issue is not custody but whether the trial court properly denied the motion to reopen. See Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017) (appeal from an order denying motion to set aside did not raise a custody issue on appeal). Damian Nixon’s failure to follow the discretionary appeal procedure deprives us of jurisdiction over Case No. A18A1618, which is hereby DISMISSED. Regarding Case No. A18A1617, a trial court’s order dismissing an appeal is directly appealable if the judgment being appealed from is itself directly appealable.

Kappelmeier v. Household Realty Corp., 276 Ga. App. 575, 576 (1) (623 SE2d 752) (2005). As noted above, Damian Nixon’s appeal from the trial court’s denial of his motion to reopen was not directly appealable. Accordingly, his appeal in Case No. A18A1617 from the trial court’s order dismissing his appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/06/2018 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Wi tness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.