                                 THIRD DIVISION
                                MCFADDEN, C. J.,
                            DOYLE, P. J., and HODGES, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                     March 20, 2020




In the Court of Appeals of Georgia
 A20A0383. PATRICIA DUFFY v. STEPHEN SANDERS.

      HODGES, Judge.

      Patricia Duffy (“Wife”) appeals from the trial court’s dismissal of her

complaint seeking a declaratory judgment and asserting a claim for tortious

interference with business relations against her ex-husband Stephen Sanders

(“Husband”). Husband has moved to dismiss the appeal on the ground that Wife was

required to file a discretionary application. We agree and therefore dismiss this appeal

for lack of jurisdiction.

      “It is well established that this Court has a solemn duty to inquire into our

jurisdiction to review the errors enumerated on appeal, and it is a duty we do not take

lightly.” (Footnote and punctuation omitted.) Pathfinder Payment Solutions, Inc. v.

Global Payments Direct, Inc., 344 Ga. App. 490, 490 (810 SE2d 653) (2018). As our
Supreme Court has advised, litigants must “review the discretionary application

statute to see if it covers the underlying subject matter of the appeal. If it does, then

the party must file an application for appeal as provided under OCGA § 5-6-35.”

Schumacher v. City of Roswell, 301 Ga. 635, 636 (1) (803 SE2d 66) (2017), citing

Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994). We consider the

underlying subject matter here to determine whether a discretionary application was

required in order to appeal.

      The record reveals that the parties were divorced in 2014. Their settlement

agreement was incorporated into the final judgment and decree. Husband was

awarded alimony, and the parties agreed that the award could not be modified and

waived any statutory right to future modification based upon a change in the income

of either party. Wife was awarded the marital property and Husband was required to

execute a quitclaim deed conveying any right, title, and interest to the property to

Wife within 30 days of the entry of the final judgment and decree. Husband agreed

that he had not “placed any liens or encumbrances on said property.” Husband also

agreed to convey to Wife any right, title and interest in the brokerage business Wife

operated.



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    In August 2018, Wife filed a “Complaint for Termination of Alimony” in which

she alleged that since the entry of the divorce decree, there had been a substantial

change in Husband’s financial status. Husband answered and counterclaimed for

declaratory relief asserting that pursuant to the final judgment and decree, Wife

waived her right to seek a modification of alimony.

    Wife subsequently filed two amended complaints, the second of which added a

claim for tortious interference with business relations. She asserted that in

contravention of the divorce decree’s requirement that Husband relinquish his interest

in the marital home and the brokerage business, Husband claimed an interest in both

in his bankruptcy filing causing Wife to default on the mortgage on the home and

rendering the brokerage business unable to front the customs duties and taxes for its

customers. Wife claimed that Husband’s interference “directly caused and induced

breaches” of Wife’s contractual obligations related to the mortgages on the marital

property, and “caused third parties to fail to enter into anticipated business

relationships with [Wife].” Wife also requested a declaratory judgment that she owed

Husband no alimony. After the filing of the second amended complaint, Wife filed

a notice of withdrawal of her claim for modification of alimony, leaving the

remaining claims pending.

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     Husband moved to dismiss Wife’s complaint pursuant to OCGA § 9-11-12 (b)

(1) (lack of jurisdiction over the subject matter) and (b) (2) (lack of jurisdiction over

the person) arguing that a claim for tortious interference with business relations

cannot be based upon the filing of a bankruptcy petition because federal bankruptcy

law preempts state tort claims. Husband also asserted that Wife’s request for a

declaratory judgment was a “modification of alimony petition masquerading as a

declaratory judgment action.”

     Following a hearing, the trial court granted Husband’s motion to dismiss finding

that there was no basis for Wife’s claim of tortious interference with business

relations because husband did not improperly claim the marital home in his

bankruptcy filing. The court concluded that although Husband was ordered to

quitclaim his interest in the property within 30 days of the divorce decree, the

property was still in his name at the time he filed the bankruptcy petition. The court

declined to make a declaratory ruling on the issue of alimony because the divorce

decree provided that the award was not to be modified or terminated. Wife filed a

timely direct appeal from this order.

     Husband has moved to dismiss Wife’s appeal on the ground that an application

for discretionary appeal is required for review of an order in a divorce, alimony, or

                                           4
other domestic relations case. See OCGA § 5-6-35 (a) (2). In response, Wife argues

that her tortious interference claim is separate from the divorce action, and that

pursuant to Eickhoff v. Eickhoff, 263 Ga. 498 (435 SE2d 914) (1993)1, this case

presents a “hybrid” action raising both a domestic relations issue and a non-domestic

issue, and rendering the case directly appealable. See Id. at 499-500 (1). We disagree

with Wife.

    In Eickhoff, a dispute arose concerning a settlement agreement that was not

incorporated into the final divorce decree. Id. at 498. Appellant also sought

domestication of a Pennsylvania divorce decree. Id. The court held that the case

raised a “domestic relations” issue “only insofar as appellant sought domestication

and ‘correction’ of the Pennsylvania divorce decree” (emphasis omitted), and that the

remaining claims were all based upon an unincorporated settlement agreement. Id. at

499 (1). The court described the case as a “hybrid,” raising several non-“domestic

relations” contract issues that were directly appealable, and a “domestic relations”

issue that could be raised pursuant to OCGA § 5-6-34 (d). Id. at 500 (1).




      1
       Overruled on other grounds, Lee v. GreenLand Co., 272 Ga. 107 (527 SE2d
204) (2000).

                                          5
    Here however, Wife’s tortious interference claim asserted that the settlement

agreement incorporated into the final judgment and decree provided Husband would

relinquish any interest in the marital home and brokerage business, but that he

nevertheless claimed both in his bankruptcy filing following the divorce, causing

Wife to go into default on the mortgage and jeopardizing the brokerage business.

Such a claim is ancillary to the divorce proceedings or derived from the marital

relationship or both. See Walker v. Estate of Mays, 279 Ga. 652, 653 (1) (619 SE2d

679) (2005) (holding that wife and children were required to file an application for

discretionary review to appeal trial court order in breach-of-contract case because

underlying subject matter related to rights and obligations under husband and wife’s

divorce decree). Wife was therefore required to file an application for discretionary

review under OCGA § 5-6-35 (a) (2). See, e.g., Booker v. Ga. Dept. of Human

Resources, 317 Ga. App. 426, 426-427 (731 SE2d 110) (2012) (appeal from court’s

ruling on child support was a domestic relations case that fell within OCGA § 5-6-35

(a) (2), even though it was initiated by the Georgia Department of Human Resources);

Stone v. Stone, 295 Ga. App. 783, 783 and 783 n.1 (673 SE2d 283) (2009) (appeal

involving suit for indemnification under divorce settlement, breach of fiduciary duty,

and fraud, was properly initiated by filing application for discretionary appeal).

                                          6
    Wife’s failure to file a discretionary application here deprives us of jurisdiction

over this appeal. See Russo v. Manning, 252 Ga. 155, 156 (312 SE2d 319) (1984).

Accordingly, Husband’s motion to dismiss is granted, and this appeal is dismissed.

Husband’s motions to remand and motion to strike are denied as moot.

    Appeal dismissed. McFadden, C. J., and Doyle, P. J., concur.




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