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Cook v. Campbell-Cook

Court of Appeals of Georgia, Fourth Division

March 8, 2019

COOK
v.
CAMPBELL-COOK

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Mercier, Judge.

         Dana Campbell-Cook (the wife) filed a motion for contempt against Steve Cook (the husband), alleging he violated the terms of their divorce decree. After the trial court found the husband in contempt, the wife moved for attorney fees pursuant to OCGA § 9-15-14 (b), alleging that the husband's defense to the contempt motion lacked substantial justification. The court granted the wife's motion for attorney fees. We granted the husband's application for discretionary review of the fee award. For the reasons that follow, we affirm the judgment in part, vacate it in part, and remand the case with direction.

         OCGA § 9-15-14 (b) provides, in pertinent part:

The court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, 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[.]. . . As used in this Code section, "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious.

         We review an award of attorney fees pursuant to OCGA § 9-15-14 (b) for an abuse of discretion. Murray v. DeKalb Farmers Market, 305 Ga.App. 523, 525 (2) (699 S.E.2d 842) (2010).

         The relevant procedural history is as follows. The parties, who have one minor child together, were divorced in January 2015. The divorce decree incorporated a settlement agreement that included provisions regarding child support, custody, parenting time, life insurance, medical expenses, health insurance, and attorney fees.

         On June 14, 2017, the wife, acting pro se, filed a motion for contempt, alleging that the husband was in contempt of the divorce decree because he failed to maintain a life insurance policy and refused to follow the parenting plan. On July 5, 2017, the wife, through counsel, amended the motion for contempt. In the amended motion, the wife alleged that the husband wilfully violated the settlement agreement by: refusing to obtain life insurance; keeping the child overnight; regularly using and possessing illegal substances at his residence and consuming alcohol when the child was in his custody;[1]allowing his girlfriend to spend the night when the child was in his custody and taking the child to spend the night at the girlfriend's house;[2] failing to obtain medical insurance for the child; failing to reimburse the wife for medical expenses she paid for the child; and failing to pay attorney fees as previously ordered by the court. The wife requested that the court jail the husband and require that he pay the amounts owed and attorney fees pursuant to OCGA § 19-6-2 for her bringing the contempt action.

         The husband filed an answer to the motion for contempt on July 20, 2017, and an amended answer on August 2, 2017. In his answer (as originally filed and as amended), the husband denied the wife's substantive allegations. The husband added that the wife was barred from recovery "due to unclean hands" because she failed to comply with the agreement's provisions that prohibited her from disparaging him in front of the child, that allowed him certain visitation, and that allowed him to designate an individual to pick up the child.

         Following an evidentiary hearing on the motion for contempt on August 3, 2017, the trial court entered an order in which it found the husband in contempt for failing to obtain a life insurance policy, failing to obtain health insurance for the child, keeping the child overnight, and permitting an adult non-relative to spend the night when the child was present. The court further found that the husband exposed the child to alcohol and drugs (and should not have), but it did not find that the husband was under the influence of alcohol and/or drugs. The court also found the husband in contempt for failing to reimburse the wife for the child's uncovered medical expenses. The court gave the husband time to purge himself of certain acts of contempt; specifically, it allowed him until September 20, 2017, to reimburse the wife for medical expenses, and 30 days to complete his application for life insurance and to obtain health insurance for the child.

         The court found that, "[a]s to parenting time issues," which included overnight visitation and exposing the child to alcohol and drugs, the husband could not purge himself of contempt. Explaining that the husband had violated the clear terms of the order and the agreement - paragraphs 3 (a) (regarding overnight visitation) and 3 (z) (requiring he maintain a proper and wholesome atmosphere, and prohibiting adult non-relative members of the opposite sex from spending the night with the child present) - the court sentenced the husband to serve five days in jail, beginning immediately. The court reserved ruling on whether the husband was also in contempt for failing to pay the wife attorney fees incurred in the divorce proceeding (as previously ordered). The court denied the wife's request for attorney fees pursuant to OCGA § 19-6-2, finding that she failed to prove the parties' financial circumstances.[3]

         A second hearing was held on September 21, 2017. In an order entered on October 6, 2017, the trial court found the husband in wilful contempt for failing to pay attorney fees the wife incurred in the divorce proceeding. The husband also filed a contempt action against the wife, but he dismissed it before the wife filed any responsive pleadings.

         On October 5, 2017, the wife filed a motion pursuant to OCGA § 9-15-14 (a) and (b) for attorney fees and litigation expenses incurred in pursuing her contempt action, asserting that the husband's defenses to her contempt motion lacked substantial justification and were frivolous. She also asserted that the husband sought to delay the process by filing his own contempt action against her. The wife submitted with her motion for fees an affidavit from her counsel. In the affidavit, counsel provided her bar admission date and hourly rate, adding that her rate was "reasonable based upon [her] years of experience and . . . the location of [her] practice." Counsel averred that, as of the date of the affidavit (September 20, 2017), she had expended approximately 27 hours (at $250 per hour) pursuing the wife's contempt action and that her fees and costs totaled $6, 675. Counsel attached to the affidavit invoices showing her charges from June 29, 2017 through August 3, 2017. She later introduced an invoice for $750 for the September 21, 2017 hearing appearance. The parties and court also referred to a $750 bill for attorney fees assessed from September 29 through October 26, 2017, though the parties have not provided a citation to the record for that bill.

         Following a November 30, 2017 hearing on the attorney fee motion, the trial court issued an order awarding the wife $8, 145 in attorney fees and litigation expenses pursuant to OCGA § 9-15-14 (b).[4] In its order, the court found that the wife "prevailed on every issue that was raised at the hearing" on the OCGA ยง 9-15-14 motion and concluded that the husband's defenses to the wife's contempt claims lacked substantial justification. The court stated that it was granting fees for every entry on the wife's counsel's affidavit and the two additional bills (September 21, 2017 and September 29, 2017 through October 26, 2017). The court denied the wife's fee request related to the contempt case that the ...


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