Joyner v. Joyner

Beasley, Judge. Appellant Jay Joyner filed a petition seeking to modify his and appellee’s divorce decree to change visitation rights. Appellee filed a counterclaim for $6,200 arrearage in child support payments and agreeing to the visitation modification. An order was entered modifying visitation and reserving for trial the past due child support. [305] Decided October 17, 1990. Grady K. Reddick, for appellant. George W. Fryhofer, for appellee. Appellee moved for summary judgment on this issue, which was granted. Appellant filed a direct appeal. 1. Child support issues being among those encompassed within OCGA § 5-6-35 (a) (2), and no application for appeal as required by OCGA § 5-6-35 (b) & (d) having been filed, this case must be dismissed. Russo v. Manning, 252 Ga. 155 (312 SE2d 319) (1984); Brandenburg v. Brandenburg, 175 Ga. App. 20 (332 SE2d 664) (1985). 2. Appellee filed a motion seeking imposition of 10 percent damages pursuant to OCGA § 5-6-6. The motion must be denied, not on its merits, but because the statute provides for such damages “upon any judgment. . . which has been affirmed.” No provision is made for imposing such damages when the appeal is dismissed. Radford v. IPD Printing &c., 184 Ga. App. 64 (2) (360 SE2d 656) (1987). Appeal dismissed. Been, P. J., and Pope, J., concur.