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Reid v. Reid

Court of Appeals of Georgia, Fifth Division

February 8, 2019


          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          Markle, Judge.

         Following lengthy and contentious litigation and a bench trial, the trial court granted Ginger Reid's petition for divorce from Wayne Reid and awarded attorney fees to Ginger totaling more than $723, 394 under OCGA §§ 9-15-14 and 19-6-2. Wayne filed an application for discretionary review, which this Court granted. Wayne now appeals, challenging both attorney fee awards on the grounds that the trial court failed to identify any sanctionable conduct and that there was no evidence before the trial court that would have enabled it to determine the amount of fees. After a thorough review of the record, we affirm the fee award under OCGA § 19-6-2. We also affirm the judgment of liability for attorney fees under OCGA § 9-15-14, but we conclude that the trial court erred in awarding fees under this code section without determining what fees were related to the sanctionable conduct. Accordingly, we vacate the trial court's order on this issue and remand the case for further proceedings.

         We review awards made under both OCGA §§ 9-15-14 (b) and 19-6-2 for abuse of discretion. Landry v. Walsh, 342 Ga.App. 283, 286 (2), 288 (3) (801 S.E.2d 553) (2017), cert. denied (2018).

         So viewed, the record shows that Ginger and Wayne married in 1995 and had two children. In 2011, Ginger filed a petition for divorce, and Wayne later filed a counterclaim for divorce. In February 2012, the trial court issued its temporary order, giving Ginger the marital residence and primary physical custody of the two children. Over the next several years, the parties engaged in contentious litigation, culminating in a 20-day bench trial in 2014 and final divorce decree in 2015. During the proceedings, the trial court heard extensive evidence regarding the parties' finances. The trial court awarded the parties joint legal custody, with primary physical custody to Ginger; alimony for Ginger for up to 60 months; and the marital home to Ginger.[1]

         Ginger requested attorney fees. At the conclusion of the bench trial, the trial court reserved the issue of fees. The trial court suggested that the parties address the fee issue in letter briefs, and the parties agreed to do so.

         Thereafter, Ginger submitted the affidavits of her two attorneys regarding their time and expenses. In the first affidavit, counsel set out his experience and hourly rate and represented that the amounts charged were reasonable. He also attached a print out of the fees and expenses charged. This document set out the amount Ginger was billed and had paid, but it did not link those charges to specific work. In the second affidavit, Ginger's other attorney stated that her hourly rate was reasonable, but she did not specify what that rate was. She attached a single page document showing she had charged Ginger $90, 646, but without any explanation as to the work done. Ginger also submitted a letter brief on the issue of fees, although no such filing appears in the record.

         Wayne opposed Ginger's motion for fees. With respect to fees under OCGA § 19-6-2, Wayne argued that the parties' financial circumstances did not warrant an award of fees. As to fees under OCGA § 9-15-14, Wayne argued that he had not engaged in any sanctionable conduct, and Ginger had not established what fees were attributable to the alleged sanctionable conduct. He further argued that the trial court should not take into account any settlement offers when considering whether to award fees.

         The trial court awarded fees to Ginger, finding that fees were appropriate under OCGA § 19-6-2 because Ginger and the children were dependent on Wayne for support, Wayne had multiple advanced degrees and earned a substantial amount of money, and Ginger earned significantly less income. The trial court further noted that Wayne financed the litigation through gifts from his parents and investments, while Ginger used resources from her "own separate estate, and sold jewelry and cashed in insurance policies so that she could survive and continue to defend herself." On this basis, the trial court awarded Ginger $250, 000 in attorney's fees and costs. Turning to OCGA § 9-15-14 (b), the trial court found that Wayne "maintained positions and claims throughout this divorce action that lacked substantial justification and prevented settlement. [Wayne] unnecessarily expanded the case with his conduct and litigious posturing." Specifically, the trial court noted that Wayne sought primary custody of the children, despite Ginger's years as a stay-at-home parent, with little evidentiary support for his position, and that he demanded monthly child support from Ginger regardless of which parent retained physical custody of the children. The trial court further considered Wayne's repeated attempts to point to Ginger's alcohol consumption as a means to obtain custody, where the use was not as profound as Wayne alleged, leading to unnecessary testing, monitoring, motions, and expert evidence. The trial court also considered Ginger's many attempts to settle the case, which Wayne not only refused but to which he submitted bad faith counteroffers. As a result, the trial court concluded that Wayne's conduct expanded and delayed the litigation, and it awarded Ginger fees in the amount of $473, 394.41 under OCGA § 9-15-14 (b).

         Wayne filed an application for discretionary review of the fee award, which this Court granted. The instant appeal followed.

         1. Wayne argues that the trial court erred in awarding fees under OCGA § 19-6-2 because there was no evidence that the fees were reasonable or that Ginger lacked the resources to litigate her claims. He further contends that the trial court failed to consider the amount of funds Ginger received from her family. We discern no error.

         "As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga.App. 640, 641 (649 S.E.2d 838) (2007). Under OCGA § 19-6-2 (a) (1),

[t]he grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be: (1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party.

         The purpose of an award of attorney fees pursuant to OCGA § 19-6-2 is "to ensure effective representation of both spouses so that all issues can be fully and fairly resolved." (Citation omitted.) Johnson v. Johnson, 260 Ga. 443, 444 (396 S.E.2d 234) (1990). An award under this statute "is not predicated upon a finding of misconduct of a party." ...

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