MILLER, P. J., BROWN and GOSS, JJ.
granted Susan Hill's application for discretionary review
of a trial court order directing her to pay $25, 475.87 in
attorney fees under OCGA § 9-15-14 (a) to her former
same-sex partner, Amy Burnett, after the trial court
dismissed Hill's petitions seeking to legitimate and
establish parenting time/ visitation and custodial rights to
twin girls born to Burnett in 2014. Hill argues that the trial
court erred in awarding attorney fees to Burnett. She also
contends that to the extent a fee award was warranted, the
trial court erred in requiring Hill, rather than her
attorney, to pay the award and in setting a deadline for
payment. For the reasons that follow, we affirm the judgment
as to the decision to award fees and expenses related to
Hill's claim for legitimation. However, we reverse the
trial court's decision to award fees and expenses related
to Hill's claims for custody and visitation/parenting
time. Our reversal is pursuant to OCGA § 9-15-14 (c),
based on Hill's citation to recognized authority from
other states. We thus vacate the $25, 475.87 award, and
remand the case for a hearing so that the trial court may
determine which portion of the fees and expenses previously
awarded relates to the legitimation claim.
§ 9-15-14 (a) provides for reasonable and necessary
attorney fees and litigation costs to "any party against
whom another party has asserted 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." In general,
when we review an award of attorney fees under OCGA §
9-15-14 (a), we do so under the "any evidence"
standard, a standard that ordinarily is marked by deference
to the way in which the court below assessed the relevant
evidence. That said, whether attorney fees are required under
OCGA § 9-15-14 (a) depends in some cases not so much
upon an assessment of what we usually mean when we speak of
"evidence" . . . but upon an assessment of the
state of the law at the time a party advanced a legal
argument[.] . . . Such an assessment of the state of the law,
we think, itself presents a question of law, and we usually
do not defer to trial courts about pure questions of law.
This appeal presents questions of law, which we review de
novo. . . . So, although we apply the "any
evidence" standard of review in this case, to the extent
that the "evidence" relevant to the question of
attorney fees consists of the state of the law, we make our
own assessment of that "evidence" and decide for
ourselves whether the claims asserted below presented a
justiciable issue of law.
(Citations and punctuation omitted.) Gibson Constr. Co.
v. GAA Acquisitions I, LLC, 314 Ga.App. 674, 675-676
(725 S.E.2d 806) (2012). See id., citing Ellis v.
Johnson, 263 Ga. 514, 516-517 (2) (435 S.E.2d 923)
(1993) for the proposition that "the Supreme Court does
not appear to have deferred to any assessment of the state of
the law by the trial court." Gibson, 314
Ga.App. at 676, n. 2.
viewed, the record shows that Hill and Burnett were in a
relationship for approximately three years, although they
separated and reunited several times. They exchanged rings in
2013 in North Carolina, and in 2013 and 2014, Burnett began
trying to get pregnant. The trial court found that both
parties contributed to the cost of the procedures designed to
promote pregnancy. The court further found that in 2014,
Burnett became pregnant using a procedure she paid for
without Hill's contribution. That same year, the two
women met with an adoption attorney to discuss Hill's
adopting the children, although no adoption occurred. Among
other things, Hill participated in birthing classes, was
present at the twins' birth, purchased items for the
nursery and provided clothing and necessities for the
children. The women agreed that Hill would be called
"Momma[, ]" and Burnett gave Mother's Day cards
to Hill. Even when the women's own relationship was in
abeyance, Burnett sent Hill photographs of the children and
referred to Hill as "Momma."
of 2016, however, Burnett and the children moved out of the
parties' residence. Later that year, Hill filed suit,
seeking legitimation and establishment of custody and
parenting rights based on theories of implied contract,
promissory estoppel, and constitutional rights. The trial
court dismissed Hill's action for lack of standing.
Burnett moved for attorney fees, and following a hearing, the
trial court found in Burnett's favor. Hill filed the
instant appeal regarding the attorney fees award only.
argues that the trial court erred in awarding attorney fees
because her arguments were made in a good faith attempt to
establish a new theory of law in Georgia. We agree in that
Hill presented recognized authority from other states as to
the claims in which she attempted to establish visitation,
parenting time, and custody. We do not agree as to Hill's
claim for legitimation.
§ 9-15-14 (c) provides that attorney fees shall not be
assessed "as to any claim or defense which the court
determines was asserted by said attorney or party in a
good faith attempt to establish a new theory of law in
Georgia if such new theory of law is based on some
recognized precedential or persuasive
authority." (Emphasis supplied.) See Doster v.
Bates, 266 Ga.App. 194, 195 (1) (596 S.E.2d 699) (2004)
(because attorney fee awards are not allowed as part of
damages under common law, OCGA § 9-15-14's fee
provision must be strictly construed against such an award).
initial matter, we find no evidence in the record, nor did
the trial court find, that Hill lacked good faith in bringing
the action or in her attempt to establish a new theory of law
in Georgia. OCGA § 9-15-14 (c). See generally Sacha
v. Coffee Butler Service, Inc., 215 Ga.App. 280, 281 (2)
(450 S.E.2d 704) (1994) (finding no evidence of bad faith
under OCGA § 9-15-14 (a)).
Claims for custody and parenting time/visitation:
sought to establish standing and to gain custody and/or
parenting time/visitation under various legal theories. A de
novo examination of the state of the law at issue here,
see Gibson Constr.Co, 314 Ga App at 676, shows that
Hill premised her arguments as to parenting time/visitation
and custody on new theories of law based on some recognized
persuasive authority OCGA § 9-15-14 (c) The fact that
most of the authorities Hill cited in support of her
arguments below are from other jurisdictions does not remove
her from the protection of OCGA § 9-15-14 (c) It is well
settled that Georgia courts often consider law and decisions
from other jurisdictions as persuasive authority See, e
g, Glisson v. Coker, 260 Ga App 270, 271 (1) (581 S.E.2d
303) (2003); Worley v. Worley, 161 Ga App 44, 45 (5)
(288 S.E.2d 854) (1982) See also Lane v. K-Mart
Corp, 190 Ga App 113, 115-116 (378 S.E.2d 136) (1989)
(Sognier, J, concurring specially) (noting that OCGA §
9-15-14 (c)'s language about persuasive authority refers
to decisions from other jurisdictions).
clearly sought to gain legal recognition of the emotional and
psychological bond she developed with the children, and to
establish custody and/or parenting time/visitation with the
children. In making these arguments, Hill cited to what is
clearly recognized persuasive authority from other
jurisdictions. The authorities she cited include In
re: Custody of H. S. H. - K. v. Knott, 193 Wis.2d 649
(533 N.W.2d 419) (1994), one woman's suit seeking
visitation of her former same-sex partner's biological
child, whom the couple had raised together before separating.
Id. at 659-661 (I). In this case, the Supreme Court
of Wisconsin established a four-part test for determining
whether the petitioner had established that she had a
"parent-like relationship with the child[.]"
Id. at 658-659 (test requires proof of biological or
adoptive parent's ...