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.

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.