Belcher v. Belcher , 298 Ga. 333 ( 2016 )

In the Supreme Court of Georgia
Decided: January 19, 2016
S15A1451. BELCHER v. BELCHER.
MELTON, Justice.
Donald Belcher (Husband) and Sarah Belcher (Wife) divorced in 2005.
Following a dispute over unpaid alimony to Wife in which Wife eventually
prevailed, the trial court awarded $2,500 in attorney fees to Wife in a December
17, 2014, order. Husband initially filed a timely application for discretionary
appeal of this order in the Court of Appeals, and the Court of Appeals properly
transferred the application to this Court. This Court granted Husband’s
application to determine whether the trial court erred in its award of attorney
fees to Wife, and, for the reasons set forth below, we must reverse the trial
court’s December 17th order in part, vacate the order in part, and remand this
case to the trial court for further proceedings.
By way of background, the parties’ divorce decree requires Husband to
pay Wife alimony of $500 per month until her death or remarriage. In December
2013, Husband stopped making alimony payments and had a stop payment order
put on the previous month’s alimony check. On April 16, 2014, Wife called
Husband’s telephone number and spoke to his current wife, and, in early May,
she sent Husband and his current wife certified letters, which the current wife
signed for, notifying them that payment was declined on the November 2013
check and requesting payment by cashier’s check or money order. On May 15,
2014, Husband’s attorney wrote to Wife, acknowledging her certified letters,
saying that Husband “has held all [alimony) payments in savings,” and
demanding adequate proof of Wife’s “current health status” before the funds
would be released to Wife. Wife then hired an attorney, who wrote to Husband’s
attorney on June 11, explicitly stating that “she [i.e., Wife] is alive” and
demanding immediate payment of all past due alimony and resumption of
monthly alimony payments.
On July 7, 2014, Husband filed a verified petition for a declaratory
judgment. Husband alleged that Wife had cancer and that he did not know if she
had “survived treatment,” and he asked for a declaration requiring Wife to verify
her “ongoing health status” to him and to provide him with “notice of her
passing.” On July 9, Wife was personally served, as indicated on the Sheriff’s
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Entry of Service. Wife filed a verified answer and a motion to dismiss the
petition under OCGA § 9-11-12 (b) (6), and the trial court held a hearing on
August 5 that Wife attended. On September 2, the court entered an order
dismissing Husband’s petition, holding that the divorce decree is clear and
unambiguous on the issue of alimony and that Husband’s request for proof that
Wife was alive was moot given the evidence, including her appearance in court.
On September 15, 2014 Wife filed a motion for attorney fees under
OCGA §§ 9-4-9 and 9-15-14 (a).1 On November 3, without holding a hearing,
the court entered an order recognizing that attorney fees are not “costs” under
§ 9-4-9 but granting Wife’s motion under § 9-15-14 (a) and limiting the issues
at an upcoming hearing to “the amount of attorney’s fees and expenses to be
awarded . . . and whether the award . . . shall be against Mr. Belcher, his
attorney, or both.” On November 10, the court held an evidentiary hearing, and,
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OCGA § 9-4-9 says: “In any proceeding under this [Declaratory
Judgments] chapter the court may make such award or division of costs as may
seem equitable and just.” OCGA § 9-15-14 (a) mandates an award of attorney
fees and litigation expenses “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
reasonably be believed that a court would accept the asserted claim, defense, or
other position.”
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on December 17th, the court entered a very short order requiring Husband to
pay Wife $2,500 in attorney fees under OCGA §§ 9-4-9 and 9-15-14 (a). In its
December 17th order, the court did not make any express findings specifying the
abusive conduct for which the award under OCGA § 9-15-14 (a) was proper.
This Court granted Husband’s application to appeal with the following
question:
Did the trial court err in its December 17, 2014 order to the extent that it
awarded attorney fees under OCGA § 9-4-9 and by awarding attorney fees
under OCGA § 9-15-14 (a) without making express findings specifying
the abusive conduct for which the award was made? See Lawhorne v.
Soltis, 259 Ga. 502, 504 (384 SE2d 662) (1989); Williams v. Becker, 294
Ga. 411, 413-414 (754 SE2d 11) (2014).
As Wife correctly concedes, the trial court erred to the extent that it
awarded attorney fees under OCGA § 9-4-9 and to the extent that its award was
procedurally improper under OCGA § 9-15-14 (a) in that the court did not make
express findings specifying the abusive conduct for which the award was made.
See Lawhorne, supra, 259 Ga. at 504 (3) (award under OCGA § 9-4-9 “allows
only costs[, and] ‘[c]osts’ does not include attorney fees”) (citation omitted);
Williams, supra, 294 Ga. at 413-414 (2) (a) (“Unless the party against whom
attorney fees may be awarded waives a hearing expressly or by its conduct, the
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court must hold an evidentiary hearing, after due notice of the fees issue, to
provide the party the opportunity to confront and challenge the evidence
regarding the need for and value of the legal services at issue. . . . If the court
awards attorney fees under OCGA § 9-15-14, it must make express findings
specifying the abusive conduct for which the award is made”). Accordingly, we
must reverse the portion of the trial court’s December 17 order awarding
attorney fees under OCGA § 9-4-9, vacate the portion of the order awarding fees
under OCGA § 9-15-14, and remand this case to the trial court with the direction
that it enter a proper order on Wife’s motion for attorney fees under OCGA §
9-15-14.
Judgment reversed in part and vacated in part, and case remanded with
direction. All the Justices concur.
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