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Belcher v. Belcher

Court of Appeals of Georgia, First Division

June 6, 2018

BELCHER
v.
BELCHER.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Reese, Judge.

         In his second appeal, Appellant Donald Belcher seeks review of the trial court's award of attorney fees under OCGA § 9-15-14 to his former spouse, Appellee Sarah Belcher. Previously, the Georgia Supreme Court reversed in part, vacated in part, and remanded this action to the trial court for a proper order on the Appellee's motion for attorney fees pursuant to OCGA § 9-15-14 in the case.[1] Upon remand, the trial court awarded the Appellee $2, 500, and this appeal followed. For the reasons set forth infra, we affirm the trial court's decision to award attorney fees, but vacate the amount awarded and remand this case for further proceedings.

         Because a detailed factual history of this case is found in the opinion in the first appeal, a brief summary and subsequent pertinent facts follow.[2] Pursuant to a divorce decree, the Appellant was required to pay the Appellee $500 in monthly alimony until her death or remarriage.[3] In December 2013, the Appellant stopped making alimony payments and "had a stop payment order put on the previous month's alimony check."[4] Although the Appellee and her attorney contacted the Appellant about the missed payments and assuring him that she was "alive, " the Appellant refused to pay the overdue funds and resume the alimony payments until the Appellee provided "adequate proof" of her "current health status."[5] The Appellant subsequently filed a petition for declaratory judgment, seeking "a declaration requiring [the Appellee] to verify her 'on going health status.'"[6] The Appellee filed an answer and a motion to dismiss the petition.[7]

         The trial court dismissed the declaratory judgment action for failure to state a claim.[8] The Appellee filed a motion for attorney fees under OCGA §§ 9-4-9 and 9-15-14 (a).[9] After conducting a hearing, the trial court entered an order awarding the Appellee $2, 500 in attorney fees under both statutes.[10]

         The Appellant appealed, and the Supreme Court of Georgia reversed the trial court's order to the extent it awarded attorney fees under OCGA § 9-4-9.[11] The Court also vacated the OCGA § 9-15-14 attorney fee award, finding that the trial court failed to "make express findings specifying the abusive conduct for which the award was made, " and directing the trial court to "enter a proper order on [the Appellee's] motion for attorney fees under OCGA § 9-15-14."[12] Upon remand, the trial court entered a new order granting the Appellee's motion and awarding $2, 500 in attorney fees under OCGA § 9-15-14, without identifying the applicable subsection. This appeal followed.

         As an initial matter, "an order awarding attorney fees pursuant to [OCGA § 9-15-14] must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b)."[13]

[T]he court must make express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it. Specificity in the award is important because the standards of appellate review are different under each subsection: the standard under subsection (a) is the any evidence rule; the standard under subsection (b) is abuse of discretion.[14]

         As noted above, the award of attorney fees here fails to identify the subsection of the statute under which the trial court awarded the attorney fees. However, the trial court's order stated that the motion for declaratory judgment showed "a complete absence of any justiciable issue of law or fact such that the [Appellant] could have reasonably believed that this Court would grant the relief sought." Thus, we find that the language used by the trial court substantially tracked the wording of OCGA § 9-15-14 (a).[15] Under these circumstances, the trial court's failure to specify the subsection does not constitute reversible error.[16]

         OCGA § 9-15-14 (a) requires an award of reasonable and necessary attorney fees when a party asserts "a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position." As noted above, this Court will affirm an award pursuant to OCGA § 9-15-14 (a) if there is any evidence to support it.[17] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant argues that the trial court erred in awarding attorney fees under OCGA § 9-15-14 (a) because his declaratory judgment action presented justiciable issues of law and fact. We disagree.

         It is well settled that a declaratory judgment, [18]

is one which simply declares the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done; its distinctive characteristic being that the declaration stands by itself, and no executory process follows as of course; and the action is therefore distinguished from other actions in that it does not seek execution or performance from the defendant or opposing party.[19]

Also, "[a] declaratory judgment is an appropriate means of ascertaining one's rights and duties under a contract and decree of divorce."[20] In the present case, the Appellant sought verification, through a declaratory judgment, of the Appellee's "health status." The record shows that the Appellant did not appeal the trial court's order dismissing his petition for declaratory judgment for failure to show he was entitled to relief.

         In the trial court's attorney fee order, it found that "[t]he Final Judgment and Decree was clear and unambiguous as to the requirements of alimony payments." According to the trial court, the Appellant, without exercising any due diligence, "unilaterally and without authority of the [trial court], determine[d] that the [Appellee] was no longer entitled to receive alimony payments based upon [his] arbitrary terms." The trial court concluded that, based on the Final Judgment and Decree, the Appellant was not entitled to any of the information requested in the declaratory judgment petition and that the Appellant's actions caused the Appellee to retain counsel and incur "fees, costs, and expenses."

         Although the Appellant asserts that he merely sought "reasonable notice" of the Appellee's current health status, he has provided no legal authority that "reasonable notice" is a remedy available under OCGA § 9-4-2. Under the "any evidence standard, " the record supported the trial court's finding that the "petition filed by [the Appellant] was frivolous at best and malicious at worst." Therefore, the trial court did not err in awarding attorney fees against the Appellant under OCGA § 9-15-14 (a).

         2. The Appellant contends that the award of attorney fees should be reversed because the trial court erred in its findings of fact and misstated part of the procedural history of this case. We disagree.

         (a) The Appellant argues that the award of attorney fees should be reversed because the trial court, in its findings of fact, erroneously stated the alimony payment history and improperly characterized a ...


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