A prior article discussed the domestic relations cases and issues which may be appealed as of right and those which require appellate application and approval. That article in part addressed a two-part evaluation – established by state Supreme Court decisions – to determine whether an appealed order constitutes a) a directly-appealable ruling in a child custody case or b) a challenge to an ancillary child custody determination in a domestic relations action which requires an application for discretionary appeal. In discussing that two-part test, the article noted an aberrational 2022 decision of the Georgia Court of Appeals which seemingly disregarded the first prong of the test.(1) Because the Court of Appeals recently issued another opinion which also seemingly misapplies the first part of the test, it appears appropriate to revisit the issue now.

On April 24, 2023, the Court of Appeals of Georgia issued an opinion in which it held that a husband’s challenge to child custody awards in a parenting plan entered as part of a divorce action was directly appealable under the statute which allows direct appeals of “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody…,” and that husband’s appeal was not subject to the requirement of an application for discretionary appeal under the statute applying to domestic relations actions.(2) In so holding, the Court initially relied on a statutory definition of “child custody proceeding” which expressly includes a proceeding for divorce in which child custody is in issue.(3) The Court then looked to the issue which husband had appealed, and ruled that a right of direct appeal applied because husband was challenging only the custody order and parenting plan entered in the divorce action.(4)

The apparent problems in the Court of Appeals’ recent decision begin with its reliance on a statutory definition that seems inapplicable to the case before the Court and which patently contradicts holdings of subsequent Supreme Court decisions. The statutory definition in question appears under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). On its face, the statute’s definition of “child custody proceeding” applies only to the UCCJEA, since the statute expressly defines the meaning of “child custody proceeding” in “this article” (the Article setting forth the UCCJEA).(5) The UCCJEA, however, directs itself only to the authority of a court of this state to make child custody determinations or modifications where competing jurisdictional concerns exist with other states.(6) The UCCJEA applies to interstate custody disputes and not to custody determinations made in Georgia in cases involving parties and children whose home states are all Georgia.(7)

The Court of Appeals’ application of the UCCJEA’s definition of “child custody proceeding” to an appeal of a custody determination in an ordinary divorce action directly contradicts rulings of the Georgia Supreme Court postdating the enactment of the UCCJEA in this state in 2001. In a 2010 decision on an appeal of a child custody determination made in a divorce case, the Supreme Court held that, where the underlying subject matter of a case is a divorce action resulting in a final divorce decree, the determination of other issues in the action, such as child custody, does not transform the case into a “child custody case” as that phrase is used in the statute authorizing direct appeals.(8). The Court clarified that “[a] divorce action is not a child custody proceeding, but is a proceeding brought to determine whether a marriage should be dissolved. All other issues in a divorce action, including child custody, are merely ancillary to that primary issue.”(9) The Court distinguished an appeal of a separate child custody order from an appeal of a divorce decree which includes a child custody determination, holding as to the latter that “even if the only relief sought on appeal pertains to that custody decision, the underlying subject matter is still the divorce action and its resulting final decree” as to which an application for discretionary appeal is required. (10) In a 2014 decision on another appeal of child custody orders incorporated into a final divorce decree, our high Court reiterated its 2010 pronouncements, holding that “[w]here, as here, child custody issues are ancillary to a divorce action, the determination of child custody does not transform the case into a ‘child custody case,’ as that phrase is used in [the statute authorizing direct appeals], for purposes of determining the appropriate method for appealing a child custody order.”(11)

Applying the Supreme Court’s rules for determining whether the underlying subject matter of an appeal is a “child custody case” or a “domestic relations action,” rather than utilizing the UCCJEA definition of a “child custody proceeding,” the Court of Appeals in its April decision should have held that the underlying subject matter on appeal was a divorce action requiring an application for discretionary appeal and ended its analysis there. Instead, the Court either implicitly construed the underlying subject matter on appeal as a child custody case or failed to consider the underlying subject matter in determining the proper procedure for appeal. In either event, relying entirely on a 2017 Georgia Supreme Court decision, the Court ultimately focused its inquiry on the custody issue raised on appeal, and on that basis concluded that a direct appeal was authorized.(12)

The 2017 Supreme Court decision on which the Court of Appeals relied affirmatively cited the high Court’s prior holdings (discussed above) and reaffirmed that appeals from orders entered in domestic relations cases generally must be pursued by discretionary application, including appeals of ancillary child custody issues in divorce actions.(13) The Supreme Court added though that, even where an appealed order was entered in a “child custody case” – within the meaning of the statute authorizing direct appeals – an appellate court must still look to the issue raised on appeal in determining whether a party could file a direct appeal.(14) “For the clarity of the bench and bar, we now reiterate that the ‘issue-raised-on-appeal’ rule applies to [the statute authorizing direct] appeals from orders or judgments in child custody cases. This means that the proper appellate procedure to employ depends upon the issue involved in the appeal, even if the order or judgment being challenged on appeal was … entered in a child custody case.”(15) Applying that rule, the Supreme Court held that the appeal of a denial of a motion to set aside, on grounds of inadequate notice of hearing, orders regarding contempt and modification of custody determinations under a prior divorce decree required an application for discretionary appeal.(16)

While the issue raised on appeal to the Court of Appeals in April 2023 concerned child custody, the underlying subject matter of the appealed case seemingly was a divorce action containing ancillary issues of child custody. If so, then the Court of Appeals appears to have erred in holding that its appellant had a right of direct appeal. But unless and until the Georgia Supreme Court weighs in again on this procedural issue, the erroneous appellate decision will stand and potentially lead to further, equally erroneous, decisions on appeals of child custody rulings made in divorce actions.

(1) In re N.C., 870 S.E.2d 569, 575(1) (Ga. Ct. App., 2022). (2) Beall v. Beall, A23D0290 (Ga. Ct. App., April 24, 2023). See also O.C.G.A. § 5-6-34(a)(11); and O.C.G.A. § 5-6-35(a)(2). (3) Beall, supra, citing O.C.G.A. § 19-9-41(4). (4) Beall, supra, citing Voyles v. Voyles, 301 Ga. 44, 46-47, 799 S.E.2d 160 (2017). (5) O.C.G.A. § 19-9-41(4). (6) See generally O.C.G.A. §§ 19-9-61 through 19-9-70. (7) See Rokowski v. Gilbert, 275 Ga.App. 305, 314(7), 620 S.E.2d 509 (2005). (8) Todd v. Todd, 287 Ga. 250, 251(1), 703 S.E.2d 597 (2010). (9) Id., citation omitted. (10) Id., 287 Ga. at 252(1). (11) Hoover v. Hoover, 295 Ga. 132, 134(1), 757 S.E.2d 838 (2014). (12) Beall, supra, citing Voyles, supra, 301 Ga. at 46-47. (13) Voyles, supra, 301 Ga. at 45-46. (14) Id., 301 Ga. at 46. (15) Id. , 301 Ga. at 47. (16) Id.