Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 18, 2017
The Court of Appeals hereby passes the following order:
A18A0280. AKASH DIXIT v. CHRISTOPHER BRASHER, JUDGE.
Akash Dixit filed a petition for mandamus against Judge Christopher Brasher,
who was presiding over his divorce case. In the petition, Dixit asked the trial court
to order Judge Brasher to dismiss the divorce case for lack of jurisdiction, recuse
himself, and set aside the divorce decree. The trial court dismissed the mandamus
petition, ruling that “[Dixit’s] right to appeal any of Judge Brasher’s decisions
constitutes an adequate remedy that bars him from seeking mandamus relief.”1 Dixit
appealed that ruling directly to the Supreme Court, which transferred the case here.2
We, however, lack jurisdiction because Dixit was required to file a discretionary
application.
The Supreme Court has held that “the underlying subject matter generally
controls over the relief sought in determining the proper procedure to follow to
appeal. A party should 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
1
Dixit filed a direct appeal from the divorce decree. We dismissed the appeal
as interlocutory because Dixit’s motion for new trial remained pending below. See
Case No. A17A2036, decided July 31, 2017. After the trial court denied Dixit’s
motion for new trial, he filed an application for discretionary appeal, which we
dismissed as interlocutory because a motion for attorney fees remained pending
below. See Case No. A18D0064, decided September 18, 2017.
2
This Court has subject matter jurisdiction over cases involving extraordinary
remedies in which the notice of appeal was filed on or after January 1, 2017. OCGA
§ 15-3-3.1 (a) (4).
application for appeal as provided under OCGA § 5-6-35.” Rebich v. Miles, 264 Ga.
467, 469 (448 SE2d 192) (1994). OCGA § 5-6-35 (a) (2) provides that appeals from
orders in divorce cases must be taken by application for discretionary review.
“Where the underlying subject matter, i.e., the issues sought to be appealed, clearly
arises from or is ancillary to divorce proceedings . . . the appeal is within the ambit
of this statute.” Russo v. Manning, 252 Ga. 155, 155 (312 SE2d 319) (1984).
Here, Dixit’s objective in the mandamus action was “to obtain relief from the
orders entered in his divorce case”; thus “the underlying subject matter is divorce.”
Self v. Bayneum, 265 Ga. 14, 15 (453 SE2d 27) (1995). Dixit “cannot avoid the
discretionary review procedure by challenging the trial court’s rulings via writ of
[mandamus].” Id.; see also Walker v. Estate of Mays, 279 Ga. 652 (619 SE2d 679)
(2005); Stone v. Stone, 295 Ga. App. 783, 783 n.1 (673 SE2d 283) (2009). Because
Dixit failed to follow the discretionary review procedure, we lack jurisdiction to
consider this direct appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/18/2017
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.