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Dovel v. Dovel

Court of Appeals of Georgia, Third Division

October 22, 2019

DOVEL
v.
DOVEL.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          GOBEIL, JUDGE.

         In this divorce action, we granted the application for discretionary appeal of Wesley Joshua Dovel (the "Husband") to review the trial court's award of $5, 000 in attorney fees to Samantha Leanne Dovel (the "Wife") pursuant to OCGA § 19-6-2 (a). The Husband contends that the trial court's award was erroneous because (1) attorney fees under OCGA § 19-6-2 (a) were precluded by the parties' settlement agreement waiving alimony; and (2) it failed to provide a statutory basis, findings of fact, and conclusions of law for the attorney fees award. Because we agree that the award under OCGA § 19-6-2 (a) was precluded by the parties' waiver of alimony, we reverse the trial court's award.

         The record shows that in 2017, the Wife filed a complaint for divorce, which included a request for temporary and permanent alimony and attorney fees. On the day of trial, the parties agreed to settle the case. The parties represented to the trial court that they had resolved all issues regarding debts and assets. As part of the settlement agreement, the parties waived alimony, both affirming that there was "no alimony or support of any kind" between them. But the parties reserved the issue of attorney fees for the trial court's determination.

         The trial court held a hearing on the attorney fees issue. During the hearing, the trial court requested clarification as to which statutory provision applied to the Wife's request for attorney fees. In response, the Wife's counsel confirmed twice that attorney fees were being sought under OCGA § 19-6-2. The parties introduced evidence of their respective financial circumstances for the trial court's consideration as required by OCGA § 19-6-2. The trial court confirmed that it was only considering whether to award attorney fees under OCGA § 19-6-2 pursuant to the Wife's request.[1] The Husband's counsel objected to the request for attorney fees, arguing that a recovery was prohibited under OCGA § 19-6-2 because the parties' settlement agreement had waived alimony. At the conclusion of the hearing, the trial court rejected the Husband's arguments and awarded attorney fees to the Wife in the amount of $5, 000 under OCGA § 19-6-2.

         The Wife's counsel prepared the final judgment and decree of divorce, which incorporated the parties' settlement agreement and included the attorney fees award to the Wife. The final decree was approved as to form by the Husband's counsel, and it was submitted to the trial court for entry. After the trial court entered the final decree, the Husband timely filed an application for discretionary appeal pursuant to OCGA § 5-6-35 (a) (2) seeking review of the attorney fees award. We granted the Husband's application, and the instant appeal ensued.

         1. The Husband contends that the award of attorney fees under OCGA § 19-6-2 (a) was precluded by the parties' settlement agreement waiving alimony. We agree.

         Although the final judgment failed to specify the statutory provision under which the attorney fees were awarded, the parties do not dispute that the trial court's award was based upon OCGA § 19-6-2. OCGA § 19-6-2 (a) provides, in pertinent part, as follows:

The grant of attorney[] 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, . . . 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[] fees, if any, to be allowed against either party[.]

         In other words, OCGA § 19-6-2 authorizes attorney fees awards in certain actions involving alimony. Further, "[a]ttorney fees . . . awarded to a spouse pursuant to OCGA § 19-6-2 . . . are considered to be a part of alimony." Vakharwala v. Vakharwala, 301 Ga. 251, 254-255 (1) (b) (799 S.E.2d 797) (2017). When, as here, parties enter an agreement barring the recovery of alimony, an award of attorney fees under OCGA § 19-6-2 likewise is barred. See id. (holding that wife was barred from recovering attorney fees under OCGA § 19-6-2 since the parties' prenuptial agreement barred either party from seeking or obtaining any form of alimony or support from the other); McClain v. McClain, 237 Ga. 80, 81-82 (1) (227 S.E.2d 5) (1976) (holding that wife was not entitled to attorney fees under the predecessor to OCGA § 19-6-2 because she entered into a reconciliation agreement with the husband that barred any future claims of alimony).

         The parties' settlement agreement, which was incorporated into the final divorce decree, unambiguously waived the parties' rights to receive alimony. Specifically, the settlement agreement provided:

NO ALIMONY. Each party waives and forever relinquishes any claims and rights each has or may have to alimony, maintenance and support of any nature from the other or his or her estate, whether in the form of periodic payments, lump sum payments or awards of property from his or her separate estate or otherwise.

         The Wife concedes that the settlement agreement does not permit the award under OCGA § 19-6-2.[2] The Wife nevertheless argues that the reservation of the attorney fees issue and award in the decree create ambiguity as ...


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