Order

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 application for appeal as provided under OCGA § 5-6-35." Rebich v. Miles, 264 Ga. 467, 469 (448 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 679) (2005); Stone v. Stone, 295 Ga.App. 783, 783 n.1 (673 S.E.2d 283) (2009). Because Dixit failed to follow the discretionary review procedure, we lack jurisdiction to consider this direct appeal, which is hereby DISMISSED.