In 2007, Brian Lamar Collins filed a petition to legitimate his nine-year-old daughter, and a Walton County Superior Court judge issued final orders regarding child custody and visitation and requiring Collins to pay child support. Approximately four years later, the mother, De Anna Davis, filed a petition for modification of custody, visitation, and child support, as well as a motion for contempt and a demand for attorney fees. Collins counterclaimed, requesting a downward modification of child support. On December 30, 2011, the trial judge issued a final order, establishing a new visitation schedule and ordering a reduction in Collins’ child support payment.
1. It is incumbent upon appellate courts to inquire into their own jurisdiction.
In 2007, however, the GeneralAssembly amendedboth OCGA §§ 5-6-34 and 5-6-35, removing all references to child custody cases in OCGA § 5-6-35 (a) (2), and enacting subsection (11) in OCGA § 5-6-34 (a) to provide that direct appeals may be taken from “[ajll 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.” Appellate courts have subsequently found that the effect of this broad language is that a party seeking to appeal any order in a child custody case is no longer required to comply with the interlocutory appeal procedures of OCGA § 5-6-34 (b) or OCGA § 5-6-35 (a) (2).
OCGA § 5-6-35 (a) (2), on the other hand, still mandates that “judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders” require an application for appeal. It is well established that matters concerning child support fall into the category of “other domestic relations” and, therefore, require an application for discretionary appeal.
Consequently, this case raises the issue of whether the right to a direct appeal in child custody/visitation cases,
[b]oth 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). 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).9
“Were our precedent to hold otherwise, litigants could avoid OCGA § 5-6-35’s discretionary application requirements by seeking relief in the trial court that triggers the right to direct appeal, regardless of the underlying subject matter at issue.”
In this case, Collins appeals the modified child support award that was rendered in an order that also modified visitation. Both of these modifications stem from a prior legitimation case. If Collins had appealed the modification of visitation portion of the order, there is no doubt that the case would be directly appealable as a child custody proceeding. If the case below simply dealt with child support and not visitation, there is no doubt that Collins would be required to file an application for discretionary review in the domestic relations case. The question remains: Is Collins entitled to directly appeal the child support portion of the trial court’s order in this case? We believe he is.
“In resolving this issue, we look to the literal language of the statute[s], the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute [s] so as to give effect to the legislature’s intent.”
2. Turning to Collins’ actual enumerations of error, we find that they lack merit. The trial court reduced Collins’ child support obligation from $920 per month to $713.25 per month, but Collins contends that the reduction was not enough and that the trial court made several erroneous factual findings, particularly with respect to the extent of his recent decrease in income and the credibility of his testimony. However, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard,
Collins has failed to show that the trial court abused its discretion in the present case. Notably, he has not submitted the petition for modification, nor much, if any, documentation pertaining to the original 2007 order the parties sought to modify. Further, he cites no authority in support of his claims that the trial court erred in making its findings, thereby emphasizing the fact that such findings were completely within the discretion of the trial court. The trial court specifically noted that Collins’ testimony and evidence raised “significant credibility questions as to [his] testimony on his finances,” and the record supports this finding. Under these circumstances, Collins has not met his burden of showing that the trial court’s findings were clearly erroneous and that its slight downward modification of child support was an abuse of discretion.
Judgment affirmed.
Notes
See Todd v. Todd,
See Lurry v. McCants,
See Booker v. Ga. Dept. of Human Resources,
Davis, supra at 463.
It is well settled that an action seeking to change visitation qualifies for treatment as a child custody case and is directly appealable. See Edge v. Edge,
See Jackson v. Irvin,
See Long v. Long,
See Todd, supra at 251 (1).
(Citation and punctuation omitted.) Id.
(Citation and punctuation omitted.) Walker v. Estate of Mays,
(Citation and punctuation omitted.) Moore, supra at 706 (1).
See Six Flags Over Ga. II v. Kull,
Northeast Atlanta Bonding Co. v. State of Ga.,
Frazier v. Southern R. Co.,
OCGA § 19-9-41 (4). We note that this statute also declares that the term “child custody proceeding” includes proceedings for divorce, and the Supreme Court, following the mandates of OCGA § 5-6-35 (a) (2), has held that a party appealing a divorce action must file an application for discretionary review, even if it includes a child custody issue, because child custody is ancillary to the divorce proceeding. See Todd, supra at 251 (1). We do not have that issue before us today.
Rebich v. Miles,
This Court sympathizes with those who believe that the General Assembly really intended that only the custody or visitation terms in a child custody case should be directly appealable. However, given the wording used by the General Assembly in enacting its 2007 amendments to OCGÁ § 5-6-34, it is incumbent upon the legislature to further refine this language if this Code section opened up too broadly those orders and judgments which could be directly appealable.
See Jackson, supra at 562 (1).
See Messaadi v. Messaadi,
See Sharpe v. Perkins,
See Messaadi, supra at 128 (1) (husband failed to carry his burden of proving error in the trial court’s award).