ONYEMOBI v. ONYEMOBI (2025)

Ochiagha Onyemobi (the “Father”) sued his wife, Ijeoma Onyinye Onyemobi (the “Mother”), for divorce. Proceeding pro se, Father appeals from an interlocutory temporary order which, among other things, granted Mother custody of the parties’ five children. For the reasons that follow, we conclude that Father did not follow the proper procedure for seeking appellate review and the appeal must be dismissed because we lack jurisdiction.

“It is well established that this Court has a solemn duty to inquire into our jurisdiction.” Pathfinder Payment Solutions v. Global Payments Direct, 344 Ga. App. 490, 490, 810 S.E.2d 653 (2018) (citation and punctuation omitted). Where the issue is not raised by the parties to the appeal, the Court is empowered to do so on its own motion. Miller v. State, 264 Ga. App. 801, 802, 592 S.E.2d 450 (2003). We do so here via published decision as opposed to an order dismissing the appeal to assist the bench and bar in clarifying seemingly conflicting opinions as to whether a child custody ruling can be directly appealed under OCGA § 5-6-34 (a) (11) if that custody determination is made as part of a divorce case.

The underlying subject matter in this appeal is a divorce action. Generally, appeals from orders entered in “divorce, alimony, or other domestic relations cases” must be pursued by discretionary application. OCGA § 5-6-35 (a) (2), (b). On the other hand, under OCGA § 5-6-34 (a)(11), “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders” are deemed directly appealable.

As our Supreme Court explained, prior to 2007, there was no right to a direct appeal in child custody cases. Todd v. Todd, 287 Ga. 250, 250 (1), 703 S.E.2d 597 (2010) (citations and punctuation omitted). Pursuant to the former version of OCGA § 5-6-35 that existed prior to 2007, appeals involving “child custody cases” had to be brought by discretionary application. Id. However, in 2007, the General Assembly amended both OCGA § 5-6-34 and § 5-6-35, “removing all references to child custody cases in § 5-6-35 (a) (2) and enacting subsection (11) in § 5-6-34 (a), to provide that direct appeals may be taken from ‘judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody ․ orders.” Id. The General Assembly further amended OCGA § 5-6-34 (a) (11) in 2013 to make it clear that appeals in child custody cases could only be brought via a direct appeal when the order or judgment awarded, refused to change, or modified child custody or where the order or judgment held or declined to hold persons in contempt of such child custody judgment or order. See Murphy v. Murphy, 295 Ga. 376, 376-377, 761 S.E.2d 53 (2014).

However, because child custody is frequently litigated within the larger framework of a divorce case, some confusion has developed as to whether a child custody order entered in a divorce case is subject to direct appeal under § 5-6-34 (a) (11) or requires a discretionary application under § 5-6-35 (a) (2).¹ Further confusion has evolved when the custody determination is made as part of a temporary order and is not part of a final divorce decree.

In Todd, our Supreme Court addressed a divorce case which involved child custody determinations. In deciding whether the appellant was required to follow the procedures for discretionary appeal or was entitled to directly appeal the decision, the Supreme Court held,

In enacting [OCGA § 5-6-34 (a) (11)]and revising OCGA § 5–6–35(a)(2), the General Assembly specifically provided that its amendments shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008. Ga. L. 2007, pp. 554, 569, § 8. A divorce action is not a child custody proceeding, but is a proceeding brought to determine whether a marriage should be dissolved. See OCGA § 19–5–1 et seq. All other issues in a divorce action, including child custody, are merely ancillary to that primary issue. In a somewhat similar context, this Court has held that even though a deprivation proceeding necessitates a determination as to child custody, the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters.

Todd v. Todd, 287 Ga. 250, 251 (1), 703 S.E.2d 597 (2010) (citations and punctuation omitted).

Both 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).

Id. (citations and punctuation omitted). In cases that followed the decision in Todd, the Supreme Court has continued to hold that when a child custody determination is made within the framework of a divorce case, the discretionary appeal process outlined in OCGA § 5-6-35 is applicable.

“Where, 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 OCGA § 5-6-34 (a) (11), for purposes of determining the appropriate method for appealing a child custody order.” Hoover v. Hoover, 295 Ga. 132, 134 (1), 757 S.E.2d 838 (2014) (citation and punctuation omitted). “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.” Voyles v. Voyles, 301 Ga. 44, 45, 799 S.E.2d 160 (2017) (citations and punctuation omitted).²

This Court has followed the decision in Todd and held that when a custody determination is made as part of divorce proceedings between the parties, the party seeking to appeal the decision was required to follow the discretionary appeal procedures set forth in OCGA § 5-6-35 (a) (2). Ford v. Ford, 347 Ga. App. 233, 234, 818 S.E.2d 690 (2018). See also Heyman v. Heyman, ––– Ga. ––––, ––––, 914 S.E.2d 350, 356-57 (2025).

Therefore, when a trial court issues a child custody determination as part of divorce proceedings, any appeal seeking review of that child custody determination requires that the appellant utilize the discretionary appeal procedures set forth in OCGA § 5-6-35 (a) (2), regardless of whether the child custody determination is made via final decree or, as here, as part of a temporary order.³ If the order is not a final judgment, but an interlocutory order, as was the order at issue in this case, the additional requirements set forth in OCGA § 5-6-34 (b) are also applicable.

“Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257, 471 S.E.2d 60 (1996). Father's failure to follow the mandated procedures in this case ⁴ deprives us of jurisdiction over this appeal which is dismissed.

Appeal dismissed.

FOOTNOTES

1.   See Croft v. Croft, 298 Ga. App. 303, 680 S.E.2d 150 (2009) (addressing this issue in the context of a custody action implicating the UCCJEA but not within the context of a divorce case); Taylor v. Curl, 298 Ga. App. 45, 679 S.E.2d 80 (2009) (addressing this issue in the context of an emergency custody action unrelated to a divorce action); Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009) (addressing this issue in the context of a petition to modify visitation); Martinez v. Martinez, 301 Ga. App. 330, 687 S.E.2d 610 (2009) (addressing this issue in the context of a motion to enforce a settlement agreement in a divorce action which impacted child custody); Long v. Long, 303 Ga. App. 215, 692 S.E.2d 811 (2010) (addressing this issue in the context of a deprivation proceeding). All of these decisions predate the Supreme Court's decision in Todd.

2.   It should be noted that Voyles was not a divorce case but a decision relating to a contempt and modification action in which the appellant sought to set aside a judgment holding him in contempt and dismissing his own contempt and modification actions. Voyles, 301 Ga. at 44, 799 S.E.2d 160. However, the Supreme Court made the cited findings within their opinion and also expressly overturned Division 1of our opinion in Collins v. Davis, 318 Ga. App. 265, 733 S.E.2d 798 (2012). Id. at n.5.

3.   We acknowledge the existence of the “issue raised on appeal” rule that was addressed in Voyles. However, we interpret that rule to apply to cases other than divorce cases where a child custody determination is made by the lower court.

4.   While the record reflects that the trial court sua sponte considered but did not make a final decision regarding the dismissal of what they construed as an application for discretionary appeal, the trial court explicitly denied Father's petition for certificate of immediate review under OCGA § 5-6-34 (b). With that, Father was barred from seeking appellate review in this Court.

Padgett, Judge.

Doyle, P. J., and Markle, J., concur.