Susan Hill v. Amy Burnett ( 2019 )

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, 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
March 7, 2019
In the Court of Appeals of Georgia
A18A1655. HILL v. BURNETT. GS-061
GOSS, Judge.
We 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 2014.1 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
1
Although same-sex couples could not marry in Georgia when the twins were
born in 2014, the United States Supreme Court legalized same-sex marriage the next
year, in Obergefell v. Hodges, __ U. S. __ (135 SCt 2584, 192 LE2d 609) (2015). Hill
and Burnett did not marry subsequent to Obergefell.
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.
OCGA § 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
2
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 SE2d 806) (2012). See id., citing Ellis v. Johnson,
263 Ga. 514, 516-517 (2) (435 SE2d 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.
So viewed, the record2 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
2
As this case never reached an evidentiary hearing, the record consists of the
transcripts of the parties’ legal arguments and of the parties’ verified petitions and
responses.
3
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.”
In June 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.
1. Hill 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
4
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.
OCGA § 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 SE2d 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).
As an 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 SE2d 704) (1994) (finding no
evidence of bad faith under OCGA § 9-15-14 (a)).
(a) Claims for custody and parenting time/visitation: Hill 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
5
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 SE2d 303)
(2003); Worley v. Worley, 161 Ga. App. 44, 45 (5) (288 SE2d 854) (1982). See also
Lane v. K-Mart Corp., 190 Ga. App. 113, 115-116 (378 SE2d 136) (1989) (Sognier,
J., concurring specially) (noting that OCGA § 9-15-14 (c)’s language about
persuasive authority refers to decisions from other jurisdictions).
Hill 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.3 The authorities she
cited include In re: Custody of H. S. H. – K. v. Knott, 193 Wis. 2d 649 (533 N.W.2d
3
These included decisions from the highest appellate courts in four other
states.
6
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 consent to petitioner’s formation of parent-like relationship with
child, and that petitioner lived with child, assumed obligations of parenting, and had
enough time to establish bonded parental relationship with child).
Hill cited additional persuasive authority from other jurisdictions which had
adopted the Wisconsin test. See, e. g., V. C. v. M. J. B., 163 N. J. 200, 221 (III) (B),
223 and 226 (IV) (748 A2d 539) (2000) (examined other jurisdictions which
recognized the psychological parent doctrine, and adopted the four-part test in H. S.
H. – K., 193 Wis. 2d at 658-659. Hill also cited Brooke S. B. v. Elizabeth A. C. C., 28
N.Y. 3d 1, 27-28 (IV), (V) (61 NE2d 488) (2016) (found that a non-biological, non-
adoptive partner would have standing to seek visitation and custody if that partner
could show by clear and convincing evidence that the parties had agreed, prior to
conception, to raise a child together), and Bethany v. Jones, 2011 Ark. 67 (378 S.W.3d
731, 735, 738-739 (I)) (2011) (found that biological mother’s former same-sex
7
partner stood in loco parentis to the child for visitation purposes, even though the
parties never legalized their relationship and had only an oral agreement to raise the
child together). Here, the trial court considered the arguments presented and
dismissed Hill’s case and awarded Burnett attorney fees. Review of the trial court’s
decision to dismiss Hill’s lawsuit is not before this Court. Therefore, this opinion
does not review the merits of those arguments, and reviews only the decision as to
attorney fees and expenses. As to the attorney fees and expenses awarded in the
instant case, “a reasonable lawyer might have read [the cited authority from these
other jurisdictions] and inferred that” these authorities offered some support for the
claims Hill presented in her quest to establish custody or parenting time/visitation.
Gibson Constr., 314 Ga. App. at 677 (reversing grant of attorney fees under OCGA
§ 9-15-14 (a) even where appellant “failed to cite any convincing authority” for the
proposition at hand) (citation and punctuation omitted; emphasis supplied).
[W]e cannot say that this argument was nonsensical, illogical, foreclosed
by existing precedent, or without some arguable support . . . [W]e must
keep in mind that OCGA § 9-15-14 (a) is intended to discourage the
bringing of frivolous claims, not the presentation of questions of first
impression about which reasonable minds might disagree or the
assertion of novel legal theories that find arguable, albeit limited,
support in existing case law . . . [.]
8
Id.
The trial court, citing Brooke, found that “a close reading of the facts” in
Brooke showed a “distinctly more clear cut showing of intent by the parties to both
conceive and raise a child together[,]” than that present between Hill and Burnett.
This Court has recognized that OCGA § 9-15-14 (a) is cast in the disjunctive,
however, providing for attorney fees only in cases “with respect to which there
existed such a complete absence of any justiciable issue of law or fact . . . [.]” See
Doster, 266 Ga. App. at 196 (1) (“we must determine whether the claim asserted
below either had some factual merit or presented a justiciable issue of law”)
(punctuation and footnote omitted; emphasis supplied). See also Lane, 190 Ga. App.
at 115-116 (Sognier, J., concurring specially) (“Because of the casting of the
language of section (a) [of OCGA § 9-15-14] in the disjunctive rather than the
conjunctive, I read that section to allow attorney fees only when a claim has merit
neither in fact nor in law”) (citations omitted; emphasis in original). In order to avoid
paying Burnett’s attorney fees, our law does not require that Hill present issues of law
and fact sufficient to prevail on her claims, only that she present a justiciable issue
that might “reasonably [be] believed that a court would accept[.]” OCGA § 9-15-14
(a). Based on counsel’s arguments of appellate case law from other states, the trial
9
court erred to the extent that it awarded Burnett attorney fees under OCGA § 9-15-14
(a) as to Hill’s claims for custody and parenting time/visitation. We thus reverse its
order in part.
(b) Legitimation. Hill also sought to legitimate the twins. Hill points us to no
authority that she cited below, and cites to nothing on appeal, which would qualify
as the “recognized precedential or persuasive authority” required by OCGA § 9-15-14
(c) to support a claim for legitimation made by a person who had established no
biological or legal connection to the children at issue.4
Georgia’s legitimation statute, OCGA § 19-7-22 (b) provides, in pertinent part,
that “the biological father of a child” may render the relationship legitimate by
petitioning the superior court. OCGA § 19-7-22 (a) (1) defines “biological father” as
“the male who impregnated the biological mother resulting in the birth of a child.”
See also OCGA § 19-7-22 (h). Moreover, “only a biological father may bring a
4
Hill points out that she filed a motion to stay based upon a case which was at
that time before the Supreme Court of Georgia. See S17A0643. Faubert-Rocha v.
Bautista (Case dismissed May 31, 2017). She contends that this then-pending matter
presented the argument that a “non-biological ‘parent’ in a same-sex relationship
attempted to use Georgia’s legitimation statute as grounds for custody and/or
visitation.” However, a pending appeal does not satisfy OCGA § 9-15-14 (c)’s
requirement that, in order to avoid attorney fees, an argument based on a new theory
of law must also be “based on some recognized precedential or persuasive authority.”
(Emphasis supplied).
10
legitimation action.” (Punctuation and footnote omitted.) Veal v. Veal, 281 Ga. 128,
129 (636 SE2d 527) (2006). Further, Hill and Burnett never married, so no argument
for legitimacy could obtain under OCGA § 19-7-20 (c) (marriage between mother and
reputed father of child born out of wedlock, and father’s recognition of child as his
own, renders child legitimate).
Hill has cited no law from any jurisdiction for the proposition that a person of
either gender may petition to legitimate a child absent a biological relationship, and
Georgia law makes no provision for such a situation. See OCGA § 9-15-14 (c). Thus,
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[.]”
OCGA § 9-15-14 (a). Finding no error on this point, we affirm the trial court’s award
of attorney fees to the extent that the fees awarded were incurred in defending against
the legitimation claim.
c. Attorney fees. Given our determinations in Division (1) (a) and (b), supra,
we vacate the award of attorney fees. We remand this case to the trial court for a
hearing to determine the portion of the fees previously awarded which should be
allocated to the defense against the legitimation claim, thus establishing the amount
of fees and expenses which must be paid to Burnett. “As we have held, in cases
11
involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to
those fees incurred because of the sanctionable conduct. ‘Lump sum’ or
unapportioned attorney fee awards are not permitted in Georgia.” (Citation omitted.)
Butler v. Lee, 336 Ga. App. 102, 106 (2) (783 SE2d 704) (2016) (in child custody and
support action involving a same-sex, formerly married couple, appellate court vacated
attorney fee award under OCGA § 9-15-14 (b) where award had not been apportioned
to include only fees incurred because of sanctionable conduct and order did not
articulate why amount awarded was reasonable).5
2. Hill also argues that the trial court erred in ordering her, rather than her
lawyer, to pay Burnett’s attorney fees and expenses.
OCGA § 9-15-14 (a) provides, in pertinent part, that “[a]ttorney’s fees and
expenses so awarded shall be assessed against the party asserting the claim . . ., or
against that party’s attorney, or against both in such manner as is just.” (Emphasis
supplied.)
5
At the hearing on Burnett’s motion for attorney fees, both sides stipulated that
Burnett had been billed and had paid $25,475.87 in attorney fees. On appeal, Hill
does not enumerate as error the reasonableness of the fees and expenses, OCGA § 9-
15-14 (d), so we do not address the issue here.
12
As the statute makes plain, the trial court had the authority to assess the fees
against Hill, so long as that assessment was just. Here, the trial court found that it
“cannot say that Petitioner reasonably relied on existing Georgia legal precedent.”
(Emphasis supplied.) In the context of Hill’s legitimation claim, there is evidence to
support the trial court’s decision, and we find no error. See Gibson Constr. Co., 314
Ga. App. at 675-676.
3. Hill also argues that the trial court erred in setting a deadline by which she
was required to pay the attorney fees and expenses, citing OCGA § 9-15-14 (f), which
provides that an award of reasonable attorney fees and expenses constitutes a money
judgment. Hill cites to no law barring a trial judge from ordering that a money
judgment be paid by a certain date. Rather, Hill cites to cases providing that a court
cannot use its contempt power to compel compliance with a money judgment. See,
e. g., Sampson v. Cureton, 343 Ga. App. 466, 472 (2) (2017); Hill v. Paluzzi, 261 Ga.
App. 123, 126 (2) (581 SE2d 730) (2003). The trial court did not find Hill in
contempt. Contempt of court is not at issue here, and these cases have no bearing on
the matter before us. We find no error.
Judgment affirmed in part, reversed in part, award vacated and case remanded
with direction. Miller, P. J., and Brown, J., concur.
13