Jeremy K. Day v. Kristina Marie Day McCarthney ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 22, 2022
The Court of Appeals hereby passes the following order:
A22A1720. JEREMY K. DAY v. KRISTINA MARIE DAY MCCARTHNEY.
The parties divorced in 2005. Jeremy K. Day filed a petition for modification
of child custody and child support. Kristina Marie Day McCarthney counterclaimed
for contempt. The trial court subsequently entered an order finding Jeremy in
contempt for failing to pay child support and other costs for the parties’ child. Jeremy
filed a motion for new trial, which was denied. Jeremy then filed both a notice of
appeal and an application for discretionary review. We denied Jeremy’s discretionary
application on the merits, see Case No. A22D0411 (June 21, 2022), and the direct
appeal has been docketed as the instant case. We, however, lack jurisdiction over the
direct appeal.
Where, as here, the underlying action involves rights and obligations arising
out of a divorce decree and does not involve child custody, the case is a domestic
relations matter within the meaning of OCGA § 5-6-35 (a) (2). See Walker v. Estate
of Mays, 279 Ga. 652, 653 (1) (619 SE2d 679) (2005). Appeals in such matters must
be initiated by filing an application for discretionary review. See OCGA § 5-6-35 (a)
(2) (a discretionary application is required to appeal “judgments or orders in divorce,
alimony, and other domestic relations cases including . . . 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”); accord Voyles v. Voyles, 301 Ga.
44, 47 (799 SE2d 160) (2017) (an appeal in a domestic relations case in which
custody is not at issue must be brought by discretionary application). “[C]ompliance
with the discretionary appeals procedure is jurisdictional.” Fabe v. Floyd, 199 Ga.
App. 322, 332 (1) (405 SE2d 265) (1991) (on motion for reconsideration).
Further, our denial of Jeremy’s application for discretionary appeal was an
adjudication on the merits, and therefore the doctrine of res judicata bars this direct
appeal from the same trial court order. See Ross v. State, 310 Ga. App. 326, 327 (713
SE2d 438) (2011) (“[A]ny issue that was raised and resolved in an earlier appeal is
the law of the case and is binding on this Court . . . .”) (citation and punctuation
omitted); accord Hook v. Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007)
(a ruling on an application for discretionary appeal acts as res judicata in later
proceedings).
For these reasons, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/22/2022
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.