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How relevant is the 1977 Walker Statement About Supersedeas and Divorce Decrees?

by merlin on February 17th, 2013
  • Sumo

The answer is: VERY.

In 2006, the issue was directly addressed by the Georgia Supreme Court in the case of Frazier v. Frazier, 280 Ga. 687.  Note the last paragraph of the Majority opinion (no “magic language” is necessary, because the superior court has the power under statute to specifically exempt child custody issues from supersedeas, but it must do that expressly):

BENHAM, Justice.

*687 Christine Frazier (hereinafter “Wife”) seeks in this appeal to overturn the final decree of divorce issued in the action she brought against Anthony Frazier (hereinafter “Husband”) in which both parties sought custody of their three children. After a three-day bench trial, the trial court awarded joint legal and physical custody of the children, with Husband having authority, in the event of disagreement, to decide issues relating to education and extracurricular activities and Wife having authority to decide issues relating to health and religion; awarded child support to Wife; allocated the income tax dependency exemption for one child to Husband, for another child to Wife, and for the third child to each parent in alternating years; and divided the couple’s marital property. During *688 the pendency of Wife’s motion for new trial and motion to set aside, Husband filed a motion for supersedeas bond which the trial court granted, requiring payment of a sum of money into the registry of the court and excepting from the supersedeas the custody provisions of the divorce decree. Following the trial court’s denial of Wife’s motion for new trial, this Court granted her discretionary appeal application pursuant to this Court’s Family Law Pilot Project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).

[1]  1. Relying on this Court’s holding in Blanchard v. Blanchard, 261 Ga. 11, 401 S.E.2d 714 (1991), that Georgia courts do not have authority to award the federal income tax dependency exemption to a non-custodial parent, Wife contends the trial court erred in giving any part of the exemption to Husband. Notwithstanding the trial court’s award of joint legal and physical custody of the children, Wife contends she is the custodial parent for the purpose of federal income tax considerations because she has custody of the children for more of the year than Husband does. In support of that position, she relies on I.R.C. § 152(e)(4)(A), which provides “[t]he term ‘custodial parent’ means the parent having custody for the greater portion of the calendar year.” However, our calculations based on the trial court’s order reveal that the time the children are to spend with each parent is, so far as is practicable, equal. Under those circumstances, the holding in Blanchard does not support Wife’s position because Husband is not the non-custodial parent, and I.R.C. § 152(e)(4)(A) does not **668 require the exemption be given to one parent because neither parent can be said to have custody for a greater portion of the calendar year.FN1 What the trial court did in this case comes as close to the requirement of I.R.C. § 152(e)(4)(A) as is possible, splitting the exemption between two parents who are both custodial parents by virtue of the divorce decree and neither of whom has custody for a greater portion of the calendar year.

FN1. We express no opinion here concerning the effect on subsequent cases of the 2005 amendment to OCGA § 19-6-15, effective July 1, 2006, in which the General Assembly provided the following definition in subsection (a)(8): “ ‘Custodial parent’ means the parent with whom the child or children resides more than 50 percent of the time…. If each parent spends exactly 50 percent of the time with the child or children, then the court shall designate the parent with the lesser child support obligation as the custodial parent and the other parent as the noncustodial parent….” Ga. L. 2005, p. 224, § 5, eff. July 1, 2006.

[2]  Wife’s argument that permitting Husband to have any part of the exemption would cause the child support awarded by the trial court to fall below guideline amounts is not persuasive. In Bradley v. Bradley, 270 Ga. 488(2), 512 S.E.2d 248 (1999), on which Wife relies, we dealt with a provision in a divorce decree which would have reduced child support in the event the wife successfully appealed the *689 allocation of the dependency exemption to the husband. Here, no such change is contemplated. Permitting Husband to claim an exemption will not affect his gross income, which is the basis for child support calculations under the statutory guidelines (OCGA § 19-6-15) and nothing the trial court has done causes a reduction in the amount of child support. We see no error in the division of the dependency exemption established in the final decree.

[3]  2. In establishing the schedule of physical custody of the parties’ children, the trial court, with the agreement of both parents, adopted the recommendation of the guardian ad litem. On appeal, as she did on motion for new trial, Wife contends the trial court abused its discretion in giving the parties equal physical custody of the children, arguing that the custody arrangements of the decree are not in the best interests of the children. In support of her argument, Wife points to evidence that the parties cannot communicate well, which will make the process of sharing custody difficult; expresses concern that Husband’s travel schedule will result in the children spending too much time with caretakers other than their parents; and complains primarily that the custody schedule unfairly favors Husband. Husband points to evidence of his deep involvement with caring for the children prior to the separation of the parties and to evidence in the record that Wife engaged during the pendency of the divorce in a pattern of efforts to thwart the exercise of his visitation rights pursuant to a temporary custody order.

[4] [5]  Where parents contest the issue of custody of a child, the trial court has very broad discretion, looking always to the best interest of the child. Urquhart v. Urquhart, 272 Ga. 548(1), 533 S.E.2d 80 (2000). When the trial court has exercised that discretion, this court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, this court will not find there was an abuse of discretion. Id. Because our review of the evidence, which included testimony that the parents were improving in their ability to communicate regarding the children’s needs, does not show a clear abuse of the trial court’s discretion, we will not disturb the custody provisions of the decree.

[6]  3. As part of the award of joint legal custody, the trial court required the parties to make an effort to agree on questions of the children’s religion, health, education, and extra-curricular activities. It also provided that if the parties could not agree on those issues, Wife would have final decision-making authority with regard to religion and health while Husband would have that authority with regard to education and extra-curricular activities. Wife contends that designating Husband as decision-maker on those two issues was not in the best interests of the children because the parties do not *690 communicate well and because his decisions would **669 have a greater impact during the times Wife has physical custody than when he does.

[7] [8]  The trial court’s designation of decision-making authority is provided for in OCGA § 19-9-6(2):

“Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

The language of that statute clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree. Discretionary decisions regarding custody will not be disturbed unless the evidence shows a clear abuse of discretion. Anderson v. Anderson, 278 Ga. 713(1), 606 S.E.2d 251 (2004). Because the evidence in this case showed on-going disagreements between the parents on the issues of education and extra-curricular activities, making unlikely the parties being able to come to agreement on those issues, and also showed Husband played a greater role than Wife in decision-making regarding the children’s education and extra-curricular activities prior to the parties’ separation, we conclude the trial court’s designation was not an abuse of discretion.

[9] [10]  4. Wife complains the trial court’s division of marital property was unfair because the trial court made certain valuations without an evidentiary basis and did not take into account several matters to which she testified. Her complaints amount to a challenge of the trial court’s assessment of the evidence. “In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. [Cit.]” Langley v. Langley, 279 Ga. 374, 377(2), 613 S.E.2d 614 (2005). Our review of the record reveals the matters regarding which Wife complains were the subject of conflicting evidence and that her testimony on several of these matters was inconsistent. Because the record does not show the trial court’s conclusions reflected in its distribution of marital property were clearly erroneous, we will not disturb them. Id.

[11]  5. After Wife filed a timely motion for new trial, Husband filed a motion for supersedeas bond. Pursuant to Husband’s motion, the trial court entered an order requiring Wife to post a supersedeas bond *691 and expressly excepting from the supersedeas the custody provisions of the divorce decree. Wife complains on appeal that the trial court was not authorized to except the custody provisions of the decree from the automatic supersedeas provided by OCGA § 9-11-62(b).

Our research reveals a dearth of case law on the question of whether a trial court can except from the supersedeas a particular portion of the judgment, but the language of the statute itself persuades us such authority exists. “The filing of a motion for a new trial or motion for judgment notwithstanding the verdict shall act as supersedeas unless otherwise ordered by the court; but the court may condition supersedeas upon the giving of bond with good security in such amounts as the court may order.” OCGA § 9-11-62(b). The phrase “unless otherwise ordered by the court” plainly gives the trial court authority to deny supersedeas entirely, and the power to condition supersedeas upon the giving of bond is a further indication of the authority of the trial court to control the automatic supersedeas. No reason appears to limit that authority to an “all or nothing” application. In Walker v. Walker, 239 Ga. 175, 176, 236 S.E.2d 263 (1977), relied upon in part by the trial court in the present case as authority for excepting custody provisions from the supersedeas, this Court suggested that a party wishing to avoid supersedeas with regard to custody provisions of a divorce decree may ask the trial court to include in its final order “a special provision that the custody award is effective as of the date of the judgment to protect the best interest and welfare of the child … [, which provision] would effectively modify the automatic supersedeas as it regards custody….” We view the authority of the trial court under OCGA § 9-11-62(b) to **670 deny or limit the effect of an automatic supersedeas as an acceptable alternative to the “special provision” suggested in Walker. Accordingly, we find no error in the trial court’s inclusion in its grant of Husband’s motion for supersedeas bond a provision excepting the custody provisions of the final decree from the supersedeas arising from Wife’s filing of a motion for new trial.

Judgment affirmed.

All the Justices concur, except SEARS, C.J., and HUNSTEIN, P.J., who dissent.

HUNSTEIN, Presiding Justice, dissenting.

Because I would hold that the trial court was without authority to allocate the federal tax exemption, I dissent.

In Blanchard v. Blanchard, 261 Ga. 11, 401 S.E.2d 714 (1991), this Court held that Georgia courts do not have authority to award the federal dependent child tax exemption to a non-custodial parent. We reached this conclusion because to hold otherwise would cause the State to exercise a taxation power it does not possess, eliminate the desirable object of certainty, one of the objects of the federal statute in *692 question, and add to the burdens of the superior courts in making case-by-case determinations and by having to police the tax-paying behavior of the parties by use of the contempt power. This decision was reaffirmed in Bradley v. Bradley, 270 Ga. 488, 512 S.E.2d 248 (1999). Thus, this Court has twice determined that it is improper for courts of this State to allocate the dependency exemption because in doing so the State court would be exercising a taxation power it does not possess.

Reaching an opposite result in this appeal, the majority ignores the rationale of Bradley and Blanchard and holds that State courts may allocate the federal dependency exemption where parents are awarded joint custody and the time spent with each parent is, “so far as is practicable, equal.” Such distinction is of no relevance, however, to the issue of the trial court’s authority to allocate the federal tax exemption. Regardless of the nomenclature used to describe a custody arrangement or this Court’s calculations of the amount of time a parent spent with a child, Georgia courts are without authority to impose a federal tax liability. As stated by the United States Supreme Court in Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77 L.Ed. 199 (1932), State courts may create legal interests in custody decisions by granting custody to one or both parents, but “the federal [tax] statute determines when and how [such interests] shall be taxed.”

The majority further errs in its determination that the trial court was authorized to allocate the federal tax exemption to Husband because IRC § 152(e)(4)(A) does not provide for the allocation of the exemption where one parent has custody of the children for 47% of the calendar year. It is undisputed in this case that Husband had custody of the children at most only 47% of the time. “Custodial parent” is defined under 26 USC § 152(e)(4)(A) as the “parent having custody for the greater portion of the calendar year.” Recognizing that divorcing parents often are awarded shared or split custody, federal regulations interpreting § 152(4) specifically provide that in the event of a shared custody arrangement, “custody will be deemed to be with the parent who, as between both parents, has the physical custody of the child for the greater portion of the calendar year.” 26 C.F.R. § 1.152-4(b). By their very terms, therefore, the federal tax code and applicable regulations do not grant State trial courts the authority to allocate the exemption in situations where the time children spend with their parents is, “so far as is practicable, equal.” Rather, regardless of the type of custody arrangement, they require that a specific factual inquiry be made and that the exemption be allocated to the parent spending a greater portion of the calendar year with the child.FN1 *693 See **671 McCullar v. Commr., T.C. Memo.2003-272 (where parents awarded joint custody, dependency exemption rested with father because daughter resided with him for over 50% of the year).

FN1. The majority’s holding allowing State trial courts to arbitrarily allocate the exemption away from the custodial parent in a joint custody arrangement also ignores decades of reasoned opinions by the United States Tax Court that have held that the dependency exemption in joint custody situations depends not on the discretion of the trial court, but rather on this factual inquiry. See Neal v. Commr., T.C. Memo.1999-97; Dumke v. Commr., T.C. Memo.1975-91 (affirmed without published opinion 524 F.2d 1230 (5th Cir.1975)). Even where one parent has sole physical custody, the Tax Court has held that such parent is not entitled to the dependency exemption if the child did not live with him or her for the greater portion of the year. See Otmishi v. Commr., T.C. Memo.1980-472.

I am authorized to state that Chief Justice Sears joins in this dissent.

 ___________________________________________________________________________________

The 2011 Georgia Supreme Court case reinforcing the ruling of Walker v. Walker, 239 Ga. 175 (Ga. 1977) and Frazier, infra, is Avren v. Garten, 289 Ga. 186.  In Walker, there had been no temporary (termed “interlocutory” in the ruling, which is a functional description of the temporary) Order entered, but the discussion was primarily on the wife’s repeated contempt motions, and the truism that supersedeas suspends further actions concerning the divorce order.  The order that it terms as governing is, then, the temporary Order, and – more importantly, in many cases – it can be enforced via contempt actions.

The case also speaks about the power of the superior courts to exempt from supersedeas things like child custody, and to permit them to go into effect immediately upon entry of the Final Decree.  However, the child custody provisions are not exempt from supersedeas unless the Court has specifically made them so, and contempt will certainly lie to enforce them and punish infractions accordingly.

BENHAM, Justice.

*186 Appellant Jody Avren (Mother) and appellee Jay Garten (Father) were divorced in 2003. These appeals are from their most recent post-divorce litigation. In April 2010, the trial court found Mother in contempt of previous court orders, dismissed Mother’s petition for contempt against Father, dismissed Mother’s petition for modification of child support and visitation, denied and dismissed Mother’s petition for modification of child custody, ordered Mother to pay the outstanding balance due the guardian ad litem appointed to represent the parties’ minor son, and reserved the issue of Father’s request for an award of attorney fees. See Case No. S11A0064. After granting Father’s request for attorney fees in May 2010, the trial court denied Mother’s motion to set aside the award of attorney fees in October 2010. See Case No. S11A0688.FN1

 

FN1. Mother filed an application for discretionary review of the trial court’s April 2010 order, which this Court granted under OCGA § 5–6–35(j) inasmuch as Mother had a right to appeal directly from a judgment or order in a child custody case that refused to change custody and that held her in contempt of a child custody judgment or order. OCGA § 5–6–34(a)(11). While that application for discretionary review was pending, the trial court entered the order requiring Mother to pay Father’s attorney fees and reasonable expenses (May 2010), and an order denying Mother’s motion to set aside the award (October 2010). Acting pursuant to OCGA § 5–6–35(a)(8), Mother filed a timely application seeking review of the denial of the motion to set aside, which application this Court granted.

 

[1] [2]  1. In Case No. S11A0064, Mother contends the trial court abused its discretion when it found her in contempt for taking the parties’ 11–year-old child to counseling. We will uphold the trial court’s finding of contempt if there is evidence to support the trial court’s determination that Mother wilfully **134 disobeyed a prior court order. Pate v. Pate, 280 Ga. 796(3), 631 S.E.2d 103 (2006).

In the parties’ consent final modification order entered in 2006, Father, a physician, was given final decision-making authority for the minor child with respect to health and medical issues. The trial court found Mother in contempt for disregarding Father’s decision concerning the therapist to whom Mother took the child.FN2 Mother acknowledged at the contempt hearing that she had taken the child to a therapist that Father disapproved and had sent the therapist’s bills to Father for payment. Since there is evidence to support the trial court’s determination that Mother wilfully disobeyed a prior court order, we do not disturb the trial court’s finding of contempt.

FN2. The trial court also found Mother in contempt for failing to obey a court order to pay $1500 in attorney fees to Father’s counsel for previous litigation, and in contempt of the visitation provisions of the parties’ judgment and decree of divorce, as modified by court order in October 2007.

 

2. Mother contends the trial court erred when, without hearing *187 evidence on three of the four subjects of her petition, it dismissed her petition to hold Father in contempt and for modification of custody, child support, and visitation. The trial court held a hearing on Mother’s petition and entered a written order which dismissed and denied Mother’s petition “ pursuant to OCGA §§ 19–6–15, 19–9–3, and 19–9–24 and all other applicable law….” FN3

 

FN3. At the conclusion of the hearing, the trial court orally ruled that the requests for modification of child support and visitation were dismissed due to Mother’s violation of the two-year rule (see OCGA §§ 19–6–15 and 19–9–3(b)), and the request for modification of child custody was denied on the ground that Mother had not proven the existence of a material change in condition. See OCGA § 19–6–15(k). The trial court dismissed Mother’s petition for contempt on the ground that Mother withheld visitation (see OCGA § 19–9–24(b)), and noted that it could dismiss the request for modification of child custody on the same ground.

 

[3] [4]  Three of the four actions sought by Mother’s petition were dismissable pursuant to OCGA § 19–9–24(b), which prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order. Counsel for Father submitted at the evidentiary hearing a calendar on which he had circled over 100 dates between March 21 and November 20, 2009, on which the scheduled visitation between Father and child had not taken place. Mother admitted there were times when she and the child left her home on scheduled visitation days prior to the closure of the two-hour window in which Father was to pick up the child, and there were occasions on which she did not overrule the child’s reluctance or refusal to leave the house and meet his waiting father. Mother testified the child did not wish to visit with Father and she did not insist that he do so. However, “[t]he desires of children under 14 years of age in not wanting to visit their noncustodial parent is not sufficient to deny the noncustodial parent his or her rights of visitation.” Prater v. Wheeler, 253 Ga. 649, 650, 322 S.E.2d 892 (1984). Having found at the hearing that Mother had withheld visitation, the trial court did not err when, pursuant to OCGA § 19–9–24(b), it dismissed the contempt, visitation, and custody portions of Mother’s petition and, consequently, did not permit Mother to present evidence on the merits of the dismissed claims.

[5] [6]  OCGA § 19–9–24(b) does not prohibit a legal guardian who withholds visitation from bringing an action for modification of child support. “Child support is the right of the child and not of its custodian; … The conduct of the custodian cannot deprive the child of this right to support, any more than the custodian can waive it for the child or contract it away. [Cits.] [OCGA § 19–9–24(b) ] does not provide otherwise.” *188 Stewart v. Stewart, 160 Ga.App. 463–464, 287 S.E.2d 378 (1981). Instead, the trial court relied upon OCGA § 19–6–15(k)(2) in dismissing the portion of Mother’s petition seeking modification of child support.

[7] [8]  OCGA § 19–6–15(k)(2) provides that “[n]o petition to modify child support may be filed by either parent within a period **135 of two years from the date of the final order on a previous petition to modify by the same parent except [in certain situations not applicable here].” A purpose of the two-year limitation is “the protection of the parties from excessive litigation over the same issues within the two-year period.” Griffin v. Griffin, 248 Ga. 743, 744, 285 S.E.2d 710 (1982) (addressing Ga.Code Ann. § 30–220(a), the precursor of the two-year limitation found in OCGA § 19–6–19(a) on petitions for modification of spousal support). Mother filed the current petition for modification of child support in November 2009, eleven months after the trial court’s dismissal in December 2008 of an earlier petition for modification of child support and visitation filed by Mother. The trial court’s entry of an order dismissing a support-modification petition is a “final order” since it is a judicial action that terminates the litigation with prejudice and is imposed involuntarily upon a petitioner. See Taylor v. Taylor, 182 Ga.App. 412, 356 S.E.2d 236 (1987). Since two years had not elapsed from the December 2008 court order disposing of an earlier petition for support modification filed by Mother, the trial court did not err when it dismissed under OCGA § 19–6–15(k)(2) the portion of the 2009 petition seeking modification of the child-support award.

 

[9] [10]  3. Mother argues the trial court erred as a matter of law when it did not allow the guardian ad litem to interview the child’s therapist without Father’s consent. However, Mother endorsed a limitation on the guardian’s contact with the therapist when she and Father consented to the entry of the modified consent order appointing the guardian ad litem. The order, entered with the consent of counsel, provided that the guardian was not authorized to speak to the therapist to whom Mother had taken the child or any other therapist the child previously had seen without the permission of both parents or the entry of a court order. An order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order. Rieffel v. Rieffel, 281 Ga. 891(3), 644 S.E.2d 140 (2007).

 

[11] [12]  4. Mother complains the trial court abused its discretion when it ordered that she pay the remainder of the fees owed the guardian ad litem. In its 2010 order, the trial court noted that each party had paid $2,692 to the guardian and ordered Mother to pay the outstanding balance of $3,683.50. Mother asserts she was the prevailing party in the contempt action brought by Father, so she should be able to *189 recoup the costs of litigation under OCGA § 9–11–54(d), and sees error in the trial court’s failure to consider the financial circumstances of the parties. Assuming OCGA § 9–11–54(d) is applicable (but see OCGA § 19–7–50 governing payment of fees to a guardian ad litem), it would not be applicable to this case as Mother was not the prevailing party since all three counts of Father’s petition alleging contumacious conduct of Mother were upheld by the trial court. Furthermore, there is no statutory requirement that the trial court consider the parties’ relative financial circumstances when apportioning each party’s share of the guardian’s fees pursuant to a consent order, and we decline to impose such a requirement. Compare OCGA § 19–6–2(a)(1).

[13] [14]  5. Lastly, Mother contends the trial court erred when it did not apply the rule of sequestration to an unidentified woman sitting in the courtroom. Father’s counsel stated he was not going to call the woman as a witness, Mother’s counsel said she “might” call her, and the trial court ascertained the woman was not under subpoena. The woman did not testify. OCGA § 24–9–61 gives to a party the right “to have the witnesses of the other party examined out of the hearing of each other[,]” subject to the trial court’s discretion to make exceptions to the rule. Welch v. State, 251 Ga. 197(7), 304 S.E.2d 391 (1983). Putting to the side the fact that Mother sought to invoke the rule against a witness she might call instead of a witness for the other party, where the target of the invocation of the rule of sequestration does not testify, the trial court’s failure to enforce the rule against that person is not an abuse of discretion. Welch v. State, supra, 251 Ga. at 201, 304 S.E.2d 391. Since the **136 unidentified woman did not testify, the trial court did not abuse its discretion.

Case No. S11A0688.

This appeal focuses on whether the trial court had jurisdiction to enter the award of attorney fees in May 2010 while an application for discretionary appeal was pending in this Court, and whether Mother had a right to appeal directly the trial court’s denial of her motion to set aside the attorney-fee award.

Following the entry of the trial court’s judgment in April 2010, Mother filed both a notice of appeal and an application for discretionary review on May 20. On May 25, the trial court ruled on Father’s pending request for an award of attorney fees and reasonable expenses and ordered Mother to pay $16,864.50 to Father’s attorney within 30 days. Mother filed a motion to set aside the attorney-fee award in July 2010, which the trial court denied on October 6, 2010. Mother then filed an application for discretionary review of the denial of her motion to set aside, which we granted.

 

[15] [16] [17]  *190 6. Mother contends that the notice of appeal and application for discretionary review filed on May 20 deprived the trial court of jurisdiction to enter the attorney-fee award on May 25. FN4 “The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as a supersedeas.” OCGA § 5–6–35(h). See OCGA § 5–6–46 regarding a notice of appeal serving as a supersedeas. The supersedeas of a filed application or notice of appeal “deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. [Cit.]” Upton v. Jones, 280 Ga. 895(1), 635 S.E.2d 112 (2006) (after notice of appeal was filed, habeas court without jurisdiction to enter an order clarifying grounds upon which habeas relief was granted). See also Scroggins v. State, 288 Ga. 346, 703 S.E.2d 622 (2010) (after notice of appeal was filed, trial court without jurisdiction to supplement revocation of probation with subsequent order granting an out-of-time discretionary appeal); Kidd v. Unger, 207 Ga.App. 109(3), 427 S.E.2d 82 (1993) (after notice of appeal was filed, trial court without jurisdiction to enter an order purporting to limit the scope of the earlier ruling from which the notice of appeal was filed). The supersedeas that stems from the filing of an application or notice of appeal is limited in that it “supercedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.” Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538 (1982) (notice of appeal from the grant of summary judgment to third-party defendants did not deprive trial court of authority to enter orders in plaintiffs’ action against defendant). See also Cook v. Smith, 288 Ga. 409(4), 705 S.E.2d 847 (2010) (notice of appeal from order holding party in contempt did not deprive the trial court of jurisdiction to rule on issues in underlying action). The trial court retains jurisdiction to handle matters which are independent of and distinct from the judgment on appeal. Davis v. Harpagon Co., 281 Ga. 250(8), 637 S.E.2d 1 (2006). Essentially, the supersedeas that results from the filing of an application to appeal or a notice of appeal deprives the trial court of jurisdiction to take action in the case that would affect the judgment on appeal, but it does not deprive the trial court of entering an order that might be affected by the outcome of the appeal of the underlying judgment, *191 “subject to the peril that any decision reached which conflicts with the decision of the appellate court when rendered will thereby be made nugatory.” Southeastern Wholesale Furniture Co. v. Atlanta etc. Co., 84 Ga.App. 271, 276, 66 S.E.2d 68 (1951).

FN4. According to the trial court’s order that Mother pay $16,864.50 to Father’s attorney, the amount awarded “represents the attorney’s fees attributable only to the modification action … where the Mother failed to prevail and Counts II and III of the contempt action [taking child to therapist not authorized by Father and failing to pay $1,500 attorney-fee award] … where the Mother was found in willful contempt.”

Citing Davis v. Harpagon Co., supra, 281 Ga. 250(8), 637 S.E.2d 1, Mother contends the order requiring her to pay attorney fees **137 should have been set aside because the trial court was without jurisdiction to enter it. Mother reasons that the order requiring her to pay attorney fees as a result of her having been found in contempt and having had her modification petition dismissed is “directly related” to the earlier-appealed judgment finding her in contempt and dismissing her modification petition. Davis was a quia timet proceeding supervised by a special master who, faced with cross-motions for summary judgment, had determined that a genuine issue of material fact remained and thereafter had sought interim payment of his fees. In an action to quiet title, the special master’s compensation is fixed by the trial court and “taxed in the discretion of the court as part of the costs.” OCGA § 23–3–68. After the notice of appeal was filed from the special master’s underlying judgment, the trial court granted the special master’s request that the parties pay the master’s interim fees. We vacated that order after holding that the filing of the notice of appeal in the underlying action deprived the trial court of jurisdiction to thereafter order the payment of interim fees to the special master because ultimate responsibility for the fees was “directly related to the resolution of the … quiet title action” that was not yet fully resolved at the time the trial court taxed the special master’s fee as costs of the action. Under such circumstances, the award of the special master’s fee was improper. In the case at bar, however, the trial court did not err when it denied Mother’s motion to set aside the award of attorney fees since its underlying judgment was final and the trial court’s award of attorney fees did not supplement, amend, alter or modify the April 2010 order and judgment which were the subjects of the pending discretionary application and notice of appeal. Thus, the supersedeas of the May 20 application and notice of appeal did not deprive the trial court of jurisdiction to enter the award of attorney fees.FN5

FN5. Had we reversed the portions of the underlying judgment upon which the trial court relied in awarding the attorney fees, the trial court would have had to re-visit the award as it would have been made nugatory by the conflicting appellate decision. Southeastern Wholesale Furniture Co. v. Atlanta etc. Co., supra, 84 Ga.App. at 276, 66 S.E.2d 68.

[18]  7. Pursuant to OCGA § 5–6–35(a)(8), which requires a litigant to file an application for discretionary review in order to appeal the denial of a motion to set aside, Mother filed an application for discretionary review of the denial of her motion to set aside the *192 award of attorney fees. OCGA § 5–6–34(a)(11) authorizes a party to file a direct appeal from “[a]ll 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….” In granting Mother’s application, we asked the parties to address whether the denial of a motion to set aside an award of attorney fees is directly appealable.

[19]  Assuming without deciding that the trial court’s denial of Mother’s motion to set aside the attorney-fee award falls within the coverage of OCGA § 5–6–35(a)(11), Mother was required to file an application for discretionary appeal since OCGA § 5–6–35(a)(8) requires that review of an order denying a motion to set aside be preceded by an application for discretionary review. Where both OCGA § 5–6–34(a) and OCGA § 5–6–35(a) are involved, an application for appeal is required when “the underlying subject matter” of the appeal is listed in OCGA § 5–6–35(a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under § 5–6–34(a). Rebich v. Miles, 264 Ga. 467, 468, 448 S.E.2d 192 (1994). See Todd v. Todd, ––– Ga. ––––(1), 703 S.E.2d 597 (2010) (appeal of a divorce judgment in which child custody was an issue must come by way of application). FN6

FN6. In posing the question of whether Mother was entitled to a direct appeal, we directed the parties to Norman v. Ault, 287 Ga. 324(6), 695 S.E.2d 633 (2010) and Mitcham v. Blalock, 268 Ga. 644(4), 491 S.E.2d 782 (1997). Upon closer inspection, we have determined that neither is applicable to the case before us. In Mitcham, we held that an award of attorney fees or expenses of litigation made pursuant to OCGA § 9–15–14 could be appealed without filing the application for discretionary review required by OCGA § 5–6–35(a)(10) when the underlying judgment in the case was pending. See also Haggard v. Bd. of Regents, etc., of Ga., 257 Ga. 524(4a), 360 S.E.2d 566 (1987); Stancil v. GwinnettCounty, 259 Ga. 507, 384 S.E.2d 666 (1989); Rolleston v. Huie, 198 Ga.App. 49(4), 400 S.E.2d 349 (1990). That holding has been applied only in cases involving OCGA § 9–15–14, and the case at bar does not involve an award under OCGA § 9–15–14.

 In Norman v. Ault, supra, 287 Ga. 324(6), 695 S.E.2d 633, we held that an order of contempt entered after the filing of an application for discretionary appeal following the entry of the judgment of divorce, which application was granted, was not covered by the granted application since it was not entered prior to or contemporaneous with the final judgment of divorce (see OCGA § 5–6–34(d)), and would have to be the subject of a separate application of discretionary review under OCGA § 5–6–35(a)(2). In the case at bar, Mother filed a timely application from the denial of her motion to set aside and was not attempting to obtain review of that order by means of the notice of appeal filed in her appeal of the underlying judgment.

Judgments affirmed.

All the Justices concur.

_______________________________________________________________________________________________________

Subsequently, the Georgia Supreme Court has reaffirmed this rule in the 2011 case of Avren v. Garten, 289 Ga. 175.  In that case, the Court directly spoke about the jurisdiction of the trial court following a dicretionary application, and notice, of appeal.  It held that the court was deprived of jurisdiction only as to the matter appealed, and could enforce the governing terms via contempt.

BENHAM, Justice.

 *186 Appellant Jody Avren (Mother) and appellee Jay Garten (Father) were divorced in 2003. These appeals are from their most recent post-divorce litigation. In April 2010, the trial court found Mother in contempt of previous court orders, dismissed Mother’s petition for contempt against Father, dismissed Mother’s petition for modification of child support and visitation, denied and dismissed Mother’s petition for modification of child custody, ordered Mother to pay the outstanding balance due the guardian ad litem appointed to represent the parties’ minor son, and reserved the issue of Father’s request for an award of attorney fees. See Case No. S11A0064. After granting Father’s request for attorney fees in May 2010, the trial court denied Mother’s motion to set aside the award of attorney fees in October 2010. See Case No. S11A0688.FN1

FN1. Mother filed an application for discretionary review of the trial court’s April 2010 order, which this Court granted under OCGA § 5–6–35(j) inasmuch as Mother had a right to appeal directly from a judgment or order in a child custody case that refused to change custody and that held her in contempt of a child custody judgment or order. OCGA § 5–6–34(a)(11). While that application for discretionary review was pending, the trial court entered the order requiring Mother to pay Father’s attorney fees and reasonable expenses (May 2010), and an order denying Mother’s motion to set aside the award (October 2010). Acting pursuant to OCGA § 5–6–35(a)(8), Mother filed a timely application seeking review of the denial of the motion to set aside, which application this Court granted.

 [1] [2]  1. In Case No. S11A0064, Mother contends the trial court abused its discretion when it found her in contempt for taking the parties’ 11–year-old child to counseling. We will uphold the trial court’s finding of contempt if there is evidence to support the trial court’s determination that Mother wilfully **134 disobeyed a prior court order. Pate v. Pate, 280 Ga. 796(3), 631 S.E.2d 103 (2006).

In the parties’ consent final modification order entered in 2006, Father, a physician, was given final decision-making authority for the minor child with respect to health and medical issues. The trial court found Mother in contempt for disregarding Father’s decision concerning the therapist to whom Mother took the child.FN2 Mother acknowledged at the contempt hearing that she had taken the child to a therapist that Father disapproved and had sent the therapist’s bills to Father for payment. Since there is evidence to support the trial court’s determination that Mother wilfully disobeyed a prior court order, we do not disturb the trial court’s finding of contempt.

FN2. The trial court also found Mother in contempt for failing to obey a court order to pay $1500 in attorney fees to Father’s counsel for previous litigation, and in contempt of the visitation provisions of the parties’ judgment and decree of divorce, as modified by court order in October 2007.

2. Mother contends the trial court erred when, without hearing *187 evidence on three of the four subjects of her petition, it dismissed her petition to hold Father in contempt and for modification of custody, child support, and visitation. The trial court held a hearing on Mother’s petition and entered a written order which dismissed and denied Mother’s petition “ pursuant to OCGA §§ 19–6–15, 19–9–3, and 19–9–24 and all other applicable law….” FN3

 FN3. At the conclusion of the hearing, the trial court orally ruled that the requests for modification of child support and visitation were dismissed due to Mother’s violation of the two-year rule (see OCGA §§ 19–6–15 and 19–9–3(b)), and the request for modification of child custody was denied on the ground that Mother had not proven the existence of a material change in condition. See OCGA § 19–6–15(k). The trial court dismissed Mother’s petition for contempt on the ground that Mother withheld visitation (see OCGA § 19–9–24(b)), and noted that it could dismiss the request for modification of child custody on the same ground.

[3] [4]  Three of the four actions sought by Mother’s petition were dismissable pursuant to OCGA § 19–9–24(b), which prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order. Counsel for Father submitted at the evidentiary hearing a calendar on which he had circled over 100 dates between March 21 and November 20, 2009, on which the scheduled visitation between Father and child had not taken place. Mother admitted there were times when she and the child left her home on scheduled visitation days prior to the closure of the two-hour window in which Father was to pick up the child, and there were occasions on which she did not overrule the child’s reluctance or refusal to leave the house and meet his waiting father. Mother testified the child did not wish to visit with Father and she did not insist that he do so. However, “[t]he desires of children under 14 years of age in not wanting to visit their noncustodial parent is not sufficient to deny the noncustodial parent his or her rights of visitation.” Prater v. Wheeler, 253 Ga. 649, 650, 322 S.E.2d 892 (1984). Having found at the hearing that Mother had withheld visitation, the trial court did not err when, pursuant to OCGA § 19–9–24(b), it dismissed the contempt, visitation, and custody portions of Mother’s petition and, consequently, did not permit Mother to present evidence on the merits of the dismissed claims.

 [5] [6]  OCGA § 19–9–24(b) does not prohibit a legal guardian who withholds visitation from bringing an action for modification of child support. “Child support is the right of the child and not of its custodian; … The conduct of the custodian cannot deprive the child of this right to support, any more than the custodian can waive it for the child or contract it away. [Cits.] [OCGA § 19–9–24(b) ] does not provide otherwise.” *188 Stewart v. Stewart, 160 Ga.App. 463–464, 287 S.E.2d 378 (1981). Instead, the trial court relied upon OCGA § 19–6–15(k)(2) in dismissing the portion of Mother’s petition seeking modification of child support.

[7] [8]  OCGA § 19–6–15(k)(2) provides that “[n]o petition to modify child support may be filed by either parent within a period **135 of two years from the date of the final order on a previous petition to modify by the same parent except [in certain situations not applicable here].” A purpose of the two-year limitation is “the protection of the parties from excessive litigation over the same issues within the two-year period.” Griffin v. Griffin, 248 Ga. 743, 744, 285 S.E.2d 710 (1982) (addressing Ga.Code Ann. § 30–220(a), the precursor of the two-year limitation found in OCGA § 19–6–19(a) on petitions for modification of spousal support). Mother filed the current petition for modification of child support in November 2009, eleven months after the trial court’s dismissal in December 2008 of an earlier petition for modification of child support and visitation filed by Mother. The trial court’s entry of an order dismissing a support-modification petition is a “final order” since it is a judicial action that terminates the litigation with prejudice and is imposed involuntarily upon a petitioner. See Taylor v. Taylor, 182 Ga.App. 412, 356 S.E.2d 236 (1987). Since two years had not elapsed from the December 2008 court order disposing of an earlier petition for support modification filed by Mother, the trial court did not err when it dismissed under OCGA § 19–6–15(k)(2) the portion of the 2009 petition seeking modification of the child-support award.

[9] [10]  3. Mother argues the trial court erred as a matter of law when it did not allow the guardian ad litem to interview the child’s therapist without Father’s consent. However, Mother endorsed a limitation on the guardian’s contact with the therapist when she and Father consented to the entry of the modified consent order appointing the guardian ad litem. The order, entered with the consent of counsel, provided that the guardian was not authorized to speak to the therapist to whom Mother had taken the child or any other therapist the child previously had seen without the permission of both parents or the entry of a court order. An order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order. Rieffel v. Rieffel, 281 Ga. 891(3), 644 S.E.2d 140 (2007).

[11] [12]  4. Mother complains the trial court abused its discretion when it ordered that she pay the remainder of the fees owed the guardian ad litem. In its 2010 order, the trial court noted that each party had paid $2,692 to the guardian and ordered Mother to pay the outstanding balance of $3,683.50. Mother asserts she was the prevailing party in the contempt action brought by Father, so she should be able to *189 recoup the costs of litigation under OCGA § 9–11–54(d), and sees error in the trial court’s failure to consider the financial circumstances of the parties. Assuming OCGA § 9–11–54(d) is applicable (but see OCGA § 19–7–50 governing payment of fees to a guardian ad litem), it would not be applicable to this case as Mother was not the prevailing party since all three counts of Father’s petition alleging contumacious conduct of Mother were upheld by the trial court. Furthermore, there is no statutory requirement that the trial court consider the parties’ relative financial circumstances when apportioning each party’s share of the guardian’s fees pursuant to a consent order, and we decline to impose such a requirement. Compare OCGA § 19–6–2(a)(1).

[13] [14]  5. Lastly, Mother contends the trial court erred when it did not apply the rule of sequestration to an unidentified woman sitting in the courtroom. Father’s counsel stated he was not going to call the woman as a witness, Mother’s counsel said she “might” call her, and the trial court ascertained the woman was not under subpoena. The woman did not testify. OCGA § 24–9–61 gives to a party the right “to have the witnesses of the other party examined out of the hearing of each other[,]” subject to the trial court’s discretion to make exceptions to the rule. Welch v. State, 251 Ga. 197(7), 304 S.E.2d 391 (1983). Putting to the side the fact that Mother sought to invoke the rule against a witness she might call instead of a witness for the other party, where the target of the invocation of the rule of sequestration does not testify, the trial court’s failure to enforce the rule against that person is not an abuse of discretion. Welch v. State, supra, 251 Ga. at 201, 304 S.E.2d 391. Since the **136 unidentified woman did not testify, the trial court did not abuse its discretion.

Case No. S11A0688.

This appeal focuses on whether the trial court had jurisdiction to enter the award of attorney fees in May 2010 while an application for discretionary appeal was pending in this Court, and whether Mother had a right to appeal directly the trial court’s denial of her motion to set aside the attorney-fee award.

Following the entry of the trial court’s judgment in April 2010, Mother filed both a notice of appeal and an application for discretionary review on May 20. On May 25, the trial court ruled on Father’s pending request for an award of attorney fees and reasonable expenses and ordered Mother to pay $16,864.50 to Father’s attorney within 30 days. Mother filed a motion to set aside the attorney-fee award in July 2010, which the trial court denied on October 6, 2010. Mother then filed an application for discretionary review of the denial of her motion to set aside, which we granted.

[15] [16] [17]  *190 6. Mother contends that the notice of appeal and application for discretionary review filed on May 20 deprived the trial court of jurisdiction to enter the attorney-fee award on May 25. FN4 “The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as a supersedeas.” OCGA § 5–6–35(h). See OCGA § 5–6–46 regarding a notice of appeal serving as a supersedeas. The supersedeas of a filed application or notice of appeal “deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. [Cit.]” Upton v. Jones, 280 Ga. 895(1), 635 S.E.2d 112 (2006) (after notice of appeal was filed, habeas court without jurisdiction to enter an order clarifying grounds upon which habeas relief was granted). See also Scroggins v. State, 288 Ga. 346, 703 S.E.2d 622 (2010) (after notice of appeal was filed, trial court without jurisdiction to supplement revocation of probation with subsequent order granting an out-of-time discretionary appeal); Kidd v. Unger, 207 Ga.App. 109(3), 427 S.E.2d 82 (1993) (after notice of appeal was filed, trial court without jurisdiction to enter an order purporting to limit the scope of the earlier ruling from which the notice of appeal was filed). The supersedeas that stems from the filing of an application or notice of appeal is limited in that it “supercedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.” Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538 (1982) (notice of appeal from the grant of summary judgment to third-party defendants did not deprive trial court of authority to enter orders in plaintiffs’ action against defendant). See also Cook v. Smith, 288 Ga. 409(4), 705 S.E.2d 847 (2010) (notice of appeal from order holding party in contempt did not deprive the trial court of jurisdiction to rule on issues in underlying action). The trial court retains jurisdiction to handle matters which are independent of and distinct from the judgment on appeal. Davis v. Harpagon Co., 281 Ga. 250(8), 637 S.E.2d 1 (2006). Essentially, the supersedeas that results from the filing of an application to appeal or a notice of appeal deprives the trial court of jurisdiction to take action in the case that would affect the judgment on appeal, but it does not deprive the trial court of entering an order that might be affected by the outcome of the appeal of the underlying judgment, *191 “subject to the peril that any decision reached which conflicts with the decision of the appellate court when rendered will thereby be made nugatory.” Southeastern Wholesale Furniture Co. v. Atlanta etc. Co., 84 Ga.App. 271, 276, 66 S.E.2d 68 (1951).

FN4. According to the trial court’s order that Mother pay $16,864.50 to Father’s attorney, the amount awarded “represents the attorney’s fees attributable only to the modification action … where the Mother failed to prevail and Counts II and III of the contempt action [taking child to therapist not authorized by Father and failing to pay $1,500 attorney-fee award] … where the Mother was found in willful contempt.”

Citing Davis v. Harpagon Co., supra, 281 Ga. 250(8), 637 S.E.2d 1, Mother contends the order requiring her to pay attorney fees **137 should have been set aside because the trial court was without jurisdiction to enter it. Mother reasons that the order requiring her to pay attorney fees as a result of her having been found in contempt and having had her modification petition dismissed is “directly related” to the earlier-appealed judgment finding her in contempt and dismissing her modification petition. Davis was a quia timet proceeding supervised by a special master who, faced with cross-motions for summary judgment, had determined that a genuine issue of material fact remained and thereafter had sought interim payment of his fees. In an action to quiet title, the special master’s compensation is fixed by the trial court and “taxed in the discretion of the court as part of the costs.” OCGA § 23–3–68. After the notice of appeal was filed from the special master’s underlying judgment, the trial court granted the special master’s request that the parties pay the master’s interim fees. We vacated that order after holding that the filing of the notice of appeal in the underlying action deprived the trial court of jurisdiction to thereafter order the payment of interim fees to the special master because ultimate responsibility for the fees was “directly related to the resolution of the … quiet title action” that was not yet fully resolved at the time the trial court taxed the special master’s fee as costs of the action. Under such circumstances, the award of the special master’s fee was improper. In the case at bar, however, the trial court did not err when it denied Mother’s motion to set aside the award of attorney fees since its underlying judgment was final and the trial court’s award of attorney fees did not supplement, amend, alter or modify the April 2010 order and judgment which were the subjects of the pending discretionary application and notice of appeal. Thus, the supersedeas of the May 20 application and notice of appeal did not deprive the trial court of jurisdiction to enter the award of attorney fees.FN5

 FN5. Had we reversed the portions of the underlying judgment upon which the trial court relied in awarding the attorney fees, the trial court would have had to re-visit the award as it would have been made nugatory by the conflicting appellate decision. Southeastern Wholesale Furniture Co. v. Atlanta etc. Co., supra, 84 Ga.App. at 276, 66 S.E.2d 68.

[18]  7. Pursuant to OCGA § 5–6–35(a)(8), which requires a litigant to file an application for discretionary review in order to appeal the denial of a motion to set aside, Mother filed an application for discretionary review of the denial of her motion to set aside the *192 award of attorney fees. OCGA § 5–6–34(a)(11) authorizes a party to file a direct appeal from “[a]ll 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….” In granting Mother’s application, we asked the parties to address whether the denial of a motion to set aside an award of attorney fees is directly appealable.

[19]  Assuming without deciding that the trial court’s denial of Mother’s motion to set aside the attorney-fee award falls within the coverage of OCGA § 5–6–35(a)(11), Mother was required to file an application for discretionary appeal since OCGA § 5–6–35(a)(8) requires that review of an order denying a motion to set aside be preceded by an application for discretionary review. Where both OCGA § 5–6–34(a) and OCGA § 5–6–35(a) are involved, an application for appeal is required when “the underlying subject matter” of the appeal is listed in OCGA § 5–6–35(a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under § 5–6–34(a). Rebich v. Miles, 264 Ga. 467, 468, 448 S.E.2d 192 (1994). See Todd v. Todd, ––– Ga. ––––(1), 703 S.E.2d 597 (2010) (appeal of a divorce judgment in which child custody was an issue must come by way of application). FN6

FN6. In posing the question of whether Mother was entitled to a direct appeal, we directed the parties to Norman v. Ault, 287 Ga. 324(6), 695 S.E.2d 633 (2010) and Mitcham v. Blalock, 268 Ga. 644(4), 491 S.E.2d 782 (1997). Upon closer inspection, we have determined that neither is applicable to the case before us. In Mitcham, we held that an award of attorney fees or expenses of litigation made pursuant to OCGA § 9–15–14 could be appealed without filing the application for discretionary review required by OCGA § 5–6–35(a)(10) when the underlying judgment in the case was pending. See also Haggard v. Bd. of Regents, etc., of Ga., 257 Ga. 524(4a), 360 S.E.2d 566 (1987); Stancil v. GwinnettCounty, 259 Ga. 507, 384 S.E.2d 666 (1989); Rolleston v. Huie, 198 Ga.App. 49(4), 400 S.E.2d 349 (1990). That holding has been applied only in cases involving OCGA § 9–15–14, and the case at bar does not involve an award under OCGA § 9–15–14.

In Norman v. Ault, supra, 287 Ga. 324(6), 695 S.E.2d 633, we held that an order of contempt entered after the filing of an application for discretionary appeal following the entry of the judgment of divorce, which application was granted, was not covered by the granted application since it was not entered prior to or contemporaneous with the final judgment of divorce (see OCGA § 5–6–34(d)), and would have to be the subject of a separate application of discretionary review under OCGA § 5–6–35(a)(2). In the case at bar, Mother filed a timely application from the denial of her motion to set aside and was not attempting to obtain review of that order by means of the notice of appeal filed in her appeal of the underlying judgment.

Judgments affirmed.

All the Justices concur.

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