Steele v. Niggelie

163 Ga. App. 98 (1982) 293 S.E.2d 368

STEELE
v.
NIGGELIE.

63787.

Court of Appeals of Georgia.

Decided July 2, 1982. Rehearing Denied July 15, 1982.

Carl K. Nelson, Jr., for appellant.

Will Ed Smith, for appellee.

SOGNIER, Judge.

Steele (husband) and Niggelie (wife) were divorced May 17, 1976. On April 6, 1977 the trial court on a motion made by Niggelie amended the divorce decree. In February 1981 Steele filed a separate action seeking to modify the decree, to have Niggelie held in contempt for failure to comply with visitation, and to set aside the April 6, 1977 order modifying the original decree. The trial court ruled in favor of Niggelie on all issues and Steele's motion for new trial was denied. Steele filed a discretionary appeal to the Georgia Supreme Court enumerating as error the trial court's denial of his petition for modification, contempt, and to set aside the April 6, 1977 order and the denial of his motion for new trial. The discretionary appeal was denied. Steele now appeals to this court solely on the issue of the trial court's refusal to set aside the trial court's order of April 6, 1977; however, he did not file an application for discretionary appeal to this court.

Appellee filed a motion to dismiss the appeal. Pretermitting the fact that this court is of the opinion that a denial of a discretionary appeal under Code Ann. § 6-701.1 by the Supreme Court of Georgia invokes the doctrine of res judicata when the judgment appealed was final and on the merits, Byrd v. Byrd, 248 Ga. 163, 164 (281 SE2d 617) (1981), this appeal must be dismissed. "[I]n domestic relations cases, a failure to file an application to appeal will result in dismissal of the appeal. [Cits.]" Bedford v. Bedford, 246 Ga. 780 (273 SE2d 167) (1980). While an order may be procedurally subject to direct appeal, where the underlying subject matter is that of divorce, alimony, custody or contempt pursuant to Code Ann. § 6-701.1, failure to comply with this code section will result in dismissal of the appeal. Id. The appeal of the denial of a motion to set aside arising out of a divorce case will be dismissed for failure to comply with Code Ann. § 6-701.1. Fields v. Fields, 247 Ga. 437, 438 (276 SE2d 614) (1981); cert. den. (___ U. S. ___, 102 SC 319, 70 LE2d 161) (1982)).

Appeal dismissed. Deen, P. J., and Pope, J., concur.