Cole v. Cole , 333 Ga. App. 753 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY, and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
September 2, 2015
In the Court of Appeals of Georgia
A15A0977. COLE v. COLE.
BARNES, Presiding Judge.
Robert Cole appeals the trial court’s order directing him to pay attorney fees
to his ex-wife’s attorney in a contempt action. He contends that the trial court erred
in awarding the fees because (1) his ex-wife did not file a separate motion for fees
and he was not afforded a separate hearing on the fees issue, (2) his contempt petition
was not frivolous, and (3) the court failed to consider any evidence of the parties’
financial circumstances. For the reasons that follow, we affirm the trial court’s
dismissal of the contempt petition, but vacate the fees award and remand this case for
further proceedings or findings as that award.
Mr. Cole and Cindy Cole were divorced in June 2013, and a settlement
agreement regarding custody, support, and visitation of their children was
incorporated into the final judgment and decree. In June 2014, Mr. Cole filed a
petition for contempt against Mrs. Cole, contending that she had wilfully violated
several provisions of the parties’ custody and visitation agreement by allowing a
caretaker to spank one of the children, by leaving the children in the care of others
without first offering him “the right of first refusal to exercise visitation,” and by
camping with the children and her boyfriend in violation of the provision that neither
party have an overnight guest of the opposite sex while exercising their custody and
visitation rights with the children.
Mrs. Cole answered, denying the allegations of the petition and seeking
attorney fees and expenses of litigation pursuant to OCGA § 19-16-2 for having to
defend the claims. After a hearing at which the court heard evidence, the trial court
dismissed the contempt petition as groundless, and then heard Mrs. Cole’s counsel
regarding the amount of attorney fees incurred thus far. In its written order, the trial
court found that Mrs. Cole was not in contempt because she had not violated the
terms of the parties’ agreement. The court further found that Mr. Cole’s petition was
frivolous, lacked substantiating evidence, and “was an effort to ‘nit-pick’ the Court’s
prior Orders rather than to view the spirit and overall intent of the Court’s prior
Orders.” It awarded Mrs. Cole $3,000 in attorney fees and found that, based on the
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evidence presented, the fees awarded were reasonable and customary given the nature
of the case, and the level of defense counsel’s preparation and years of experience.
1. Mr. Cole contends that the trial court erred in its attorney fee award because
Mrs. Cole never filed a separate motion for fees and because Mr. Cole was not
afforded a separate hearing on the issue. A review of the record reveals that Mr. Cole
never objected to the trial court’s consideration of attorney fees during the contempt
hearing, and thus he has waived this issue for appellate review. See Mongerson v.
Mongerson, 285 Ga. 554, 559 (7) (678 SE2d 891) (2009), overruled on other
grounds, Simmons v. Simmons, 288 Ga. 670, 672 (3), n. 4 (706 SE2d 456) (2011).
2. Mr. Cole asserts that the trial court erred in awarding attorney fees because
his contempt petition was not completely frivolous but had some merit. A trial court’s
ruling on contempt will be affirmed on appeal if there is any evidence to support it.
Doritis v. Doritis, 294 Ga. 421, 425 (5) (754 SE2d 53) (2014). We have reviewed the
petition and the evidence presented at the hearing in this case, and conclude that the
trial court did not abuse its discretion in finding that the petition was frivolous.
3. Finally, Mr. Cole contends that the trial court erred in awarding attorney fees
to Mrs. Cole absent evidence of the parties’ financial circumstances or a motion for
fees under OCGA § 9-15-14. Mrs. Cole prayed for attorney fees pursuant to OCGA
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§ 19-6-2, which allows the award of fees in a case asserting contempt of a visitation
and custody agreement “[w]ithin 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.” OCGA § 19-6-2 (a) (1).
The trial court did not cite the statutory authority for its fees award, but found
that the contempt petition was frivolous and brought without substantiating evidence.
Generally an award of attorney fees is not available unless supported by
statute or contract. OCGA § 19-6-2 authorizes a court, within its
discretion, to award attorney fees in a contempt of court action arising
out of a divorce case; however, the court is to consider the financial
circumstances of both parties in assessing such an award. See OCGA §
19-6-2 (a) (1). An award under OCGA § 19-6-2 depends on the financial
circumstances of the parties, not their wrongdoing; it is to be made with
the purpose of ensuring effective representation of both spouses in an
action arising out of a divorce.
Alternatively, OCGA § 9-15-14 (b) authorizes a court to award attorney
fees if it finds that a party brought or defended an action, or any part
thereof, that lacked substantial justification or was interposed for delay
or harassment, or if it finds that a party unnecessarily expanded the
proceeding by other improper conduct. An order awarding attorney fees
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under OCGA § 9-15-14 must include findings of conduct that authorize
the award.
Here, the trial court failed to make findings sufficient to support such an
award under either section. Thus, the issue of attorney fees must be
remanded for an explanation of the statutory basis for the award and any
findings necessary to support it.
(Citations and punctuation omitted.) Cason v. Cason, 281 Ga. 296, 299-300 (3) (637
SE2d 716) (2006).
Judgment vacated and case remanded for further proceedings. Ray and
McMillian, JJ., concur.
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