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Vakharwala v. Vakharwala

Supreme Court of Georgia

May 1, 2017

VAKHARWALA
v.
VAKHARWALA.

          BENHAM, JUSTICE.

         Appellant Purvin Vakharwala ("Husband") and appellee Arpita Vakharwala ("Wife") were married in 2012, and Husband then adopted Wife's child. Prior to the marriage, the parties executed a prenuptial agreement. Husband filed a complaint for divorce in 2014, and a final decree was entered September 23, 2015, which reserved the issue of legal fees. Numerous disputes arose during the pendency of the matter with respect to child custody, and several experts were appointed to assist the trial court with child custody issues. Also during the pendency of the litigation, the trial court entered orders requiring Husband to pay Wife a total of $24, 000 in temporary support before temporary support was suspended in response to Husband's motion to enforce the prenuptial agreement. The trial court also entered orders directing Husband to pay directly to Wife's counsel a total of $25, 000 for temporary attorney fees.

         After the divorce was granted, Husband filed a motion for new trial, but that motion was denied. In response to Wife's request for an award of attorney fees and costs, the trial court entered an order finding Husband's conduct had unnecessarily expanded the litigation and awarding Wife fees and expenses in the amount of $98, 385 pursuant to OCGA § 9-15-14 (b), as well as an award in the amount of $60, 000 pursuant to OCGA § 19-6-2, for a total attorney fees award of $158, 385. The decree awarded primary physical custody of the child to Wife, and permitted Wife to relocate to Arizona where she and the child resided prior to the marriage. To address problems that immediately arose concerning child custody and the exchange of the child between Arizona and Georgia, the trial court entered an amended final judgment and decree that changed the terms of the original child custody award with respect to Husband's visitation and other details.

         This Court granted Husband's application for discretionary appeal by order instructing the parties that the Court was particularly concerned with the following:

1. Does the parties' prenuptial agreement prohibit the recovery of attorney fees under OCGA § 19-6-2, such that the trial court erred in granting Wife's request for such fees? See Langley v. Langley, 279 Ga. 374 (1) (613 S.E.2d 614) (2005). But see McClain v. McClain, 237 Ga. 80 (2) (227 S.E.2d 5) (1976).
2. Did the trial court err in failing to offset Wife's attorney fees award with amounts Husband had previously paid as temporary attorney fees?

         1. The parties' prenuptial agreement recites that each of them has sufficient separate income to provide for his or her respective support, and that both of them believe they are capable of being self-supporting in the future. In pertinent part, the agreement goes on to state:

Therefore, in the event of a marital separation or dissolution, it is agreed and understood that neither party shall seek or obtain any form of alimony or support from the other, or seek any relief, other than a distribution of their joint property interests or those property interests acquired during the course of the marriage, in any manner other than as provided in this Agreement.

         At a hearing on Husband's motion to enforce the prenuptial agreement conducted during the pendency of the action, Wife conceded the agreement was binding and enforceable. Accordingly, the trial court entered an order finding the agreement to be valid and declaring it would be enforced as part of the final decree of divorce. As noted above, the trial court also terminated its previous temporary alimony order requiring Husband to pay Wife a monthly sum for temporary alimony and declared Husband would not be required to pay any further alimony. On appeal, Husband challenges the award of attorney fees to Wife, and further asserts that even if attorney fees were properly awarded, the trial court erred in failing to offset from the final attorney fees award the amounts he had previously paid as temporary support and attorney fees.

         (a) In her post-decree motion for litigation costs and attorney fees, Wife sought an award of fees pursuant to both OCGA § 9-15-14 (b) and OCGA § 19-6-2. OCGA § 9-15-14 (b) provides as follows:

The court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if . . . it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the "Georgia Civil Practice Act." As used in this Code section, "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious.

         The order granting Wife's motion was based upon findings of fact, supported by the record, that Husband engaged in numerous acts of improper conduct throughout the litigation that were interposed for delay and harassment and represented a blatant abuse of the discovery process. Husband stated on the record that he would "spend whatever it takes to win, " when he obviously knew his income and other resources greatly exceeded those of Wife.[1] The trial court concluded that Husband's "egregious and improper behavior and his abuse of the discovery process" were interposed for delay or harassment. Accordingly, the trial court found attorney fees and expenses were warranted by OCGA § 9-15-14 (b) and awarded Wife fees and expenses in the amount of $98, 385. Having reviewed the record, we reject Husband's assertion that the amount of this award was unsupported by evidence. That portion of the order is affirmed.

         (b) The trial court's order also awarded Wife $60, 000 in attorney fees pursuant to OCGA § 19-6-2. According to that Code section, attorney fees may be awarded in an action for alimony, or for divorce and alimony, within the sound discretion of the court. The Code section further states that the trial court "shall consider the financial circumstances of both parties" in its determination of whether, and in what amount, to award such fees. Here, the trial court stated that its award pursuant to this Code section was based upon the disparity of the parties' financial situations, Husband's admission that he depleted the parties' joint bank accounts of $170, 000 one day prior to his filing the complaint, and Husband's conduct requiring Wife to spend excessive funds to defend herself from Husband's baseless accusations. Due to the terms of the parties' prenuptial agreement, however, we agree with Husband that the trial court erred in awarding attorney fees pursuant to OCGA § 19-6-2.

         First, the misconduct of a party in a divorce proceeding does not provide a basis for awarding attorney fees pursuant to OCGA § 19-6-2. See Johnson v. Johnson, 284 Ga. 366, 368 (3) (667 S.E.2d 350) (2008). The trial court's findings in this regard authorized its award of fees and expenses pursuant to OCGA ยง 9-15-14 (b), which is affirmed, but did not authorize an additional award of fees for ...


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