Hall v. Hall , 335 Ga. App. 208 ( 2015 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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
November 19, 2015
In the Court of Appeals of Georgia
A15A1032. HALL v. HALL. BO-051
BOGGS, Judge.
Keith Hall, the father of 18-year-old L. H. and 16-year-old Z. H, appeals from
both a temporary order and final order modifying child support, finding him in
contempt, and awarding Felice Hall attorney fees. Keith contends that the trial court
erred by (1) finding him in contempt for failing to pay child support, (2) awarding
attorney fees without specifying a statutory or factual basis for such an award, (3)
granting a temporary modification of child support without setting forth the specific
information required by OCGA § 19-6-15 (c) (2), and (4) awarding temporary
attorney fees pursuant to OCGA § 19-6-15 (k) (5). We granted Keith’s application for
discretionary review, and, for the reasons explained below, we affirm the contempt
finding and the temporary modification rulings, but we vacate the award of attorney
fees in the final order and remand the case with direction.
The record shows that L. H. and Z. H. were born out of wedlock, but Keith
legitimated both children. The children’s mother, Joanne Dean, consented to the
placement of the children with Felice, Keith’s former sister-in-law,1 and is not a party
to this appeal. There does not appear to be any dispute regarding the underlying facts
in this case. The minor children have been the subject of numerous court orders, and,
except for a period between 2002 and 2004, they have lived with Felice since 2000.2
On July 6, 2001, Keith was ordered to pay child support in the amount of $112.00 per
child per month through Child Support Enforcement. Keith was found to be in
contempt of the child support order on April 11, 2002, and once again the court
ordered him to pay $112.00 per child per month through Child Support Enforcement.
Felice was granted final legal custody and control of the children on March 28, 2005.
1
Felice had been married to Keith’s brother, but the two divorced before she
obtained custody of the children.
2
The trial court specifically noted in its order that it was not awarding child support
arrearage to Felice for the time period when the children were not residing with her. Due
in part to his incarcerations, Keith has never had a court order granting him custody of the
children, though they briefly lived with him during some of the time they were not in
Felice’s custody.
2
At some point in 2010 or 2011, Felice opened a case with Child Support Services to
collect child support. As a result, Child Support Services initiated collection
activities, including interception of a tax refund due to Keith and enforcement of an
income deduction order against his wages.
In 2012, Keith filed a motion to modify the previous court orders to obtain
custody of or reasonable visitation with the children, and the court entered an order
allowing some limited visitation. Keith also filed a petition for legal and equitable
relief from the child support order, arguing, in part, that Felice used fraudulent and
deceitful means to obtain child support from him. Felice denied the allegations and
filed a counterclaim for modification of child support and necessaries, including a
request for attorney fees incurred in connection with the action. She subsequently
amended her counterclaim to add a count for contempt and requested attorney fees
pursuant to OCGA §§ 9-15-14 and 19-6-2 based on the costs incurred to enforce the
prior court orders for child support.
On March 21, 2013, the trial court considered Felice’s request for a temporary
modification of child support and entered an order modifying the award of child
support to $509.00 per month. The trial court also awarded Felice attorney fees in the
amount of $1,080.00. On September 23, 2013, the trial court dismissed Keith’s
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petition based on his failure to comply with discovery requests or appear at a hearing
to explain his non-compliance. It does not appear that this order was ever appealed.
Thereafter, on June 16, 2014, the trial court entered a final order awarding Felice
child support in the amount of $498.00 per month. The court further found Keith in
contempt of previous court orders requiring him to pay child support, and it awarded
Felice arrearage amounts and attorney fees.
1. Keith contends the trial court erred in finding him in contempt of court for
failing to pay $19,077.03 in past due child support based on the original child support
obligation obtained by Child Support Services and the subsequent temporary order
in this action. According to Keith, Felice lacks standing to enforce the original child
support order because she was never a party to the order or actions. He also suggests
that Felice did not have the authority to request a “modification” of the original court
order. We disagree.
First, Keith fails to cite any statute or case law suggesting that Child Support
Services is the only entity entitled to enforce child support orders originally obtained
by Child Support Services. In fact, the law suggests the opposite. Although Felice
was not a party to the action when Child Support Services obtained the original child
support order on behalf of the minor children in 2001, case law supports the argument
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that she has standing to enforce and modify the original child support order as the
legal and physical custodian of the minor children. See generally Monroe v. Taylor,
259 Ga. App. 600 (577 SE2d 810) (2003) (affirming trial court’s order awarding
increase in child support to custodial parent when original award made to Department
of Human Resources in child support recovery action).
Statutory authority also supports the conclusion that Felice has standing to
pursue a modification of child support or a finding of contempt based on Keith’s
failure to pay child support pursuant to a previous court order. Under OCGA § 29-2-
22 (a) (3), as the children’s guardian, Felice is authorized to “[b]ring, defend, or
participate in legal, equitable, or administrative proceedings, . . . as are appropriate
for the support, care, education, health, or welfare of the minor in the name of or on
behalf of the minor.” In addition, OCGA § 19-6-15 (e) permits a nonparent custodian
to enforce the child support provisions in that subsection. And OCGA § 19-6-35 (a)
defines child support obligors and obligees as follows:
(1) “Child support obligee” means an individual to whom the payment
of a child support obligation is owed and includes a custodial parent or
caretaker of a child to whom such support obligation is to be paid or a
governmental agency entitled by law to enforce a child support
obligation on behalf of such parent, caretaker, or child.
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(2) “Child support obligor” means an individual owing a duty of support
to a child or children, whether or not such duty is evinced by a
judgment, order, or decree.
Here, Keith is the child support obligor and Felice is the child support obligee. As an
obligee under a judgment requiring the payment of child support, Felice may pursue
available remedies for enforcing the judgment, singly or concurrently with Child
Support Services, until the judgment is satisfied. See Baars v. Freeman, 288 Ga. 835,
839 (2) (a) (708 SE2d 273) (2011); Dept. of Human Resources v. Chambers, 211 Ga.
App. 763, 766 (2) (441 SE2d 77) (1994) (mother permitted to file contempt against
father ordered to pay child support through DHR).
“A trial court’s ruling on a contempt motion will be affirmed if there is any
evidence to support it.” (Citation omitted.) Baars, supra, 288 Ga. at 838 (2). In this
case, Keith legitimated the children and acknowledges that a child support order was
entered. He has failed to demonstrate that Felice, as the children’s guardian, lacks
standing to pursue a contempt action based on his failure to pay child support
pursuant to the previously entered court orders. The trial court’s order finding him in
contempt is therefore affirmed.
2. Keith argues that the trial court erred in awarding attorney fees without
specifying a statutory or factual basis for the award. We are constrained to agree.
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“As a general rule, Georgia law does not provide for the award of attorney fees
even to a prevailing party unless authorized by statute or by contract.” (Citation and
punctuation omitted.) Cothran v. Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838)
(2007). Here, Felice sought attorney fees under both OCGA § 19-6-2 and OCGA §
9-15-14. However, in its order granting Felice’s temporary modification for child
support, the trial court awarded attorney fees “in accordance with [OCGA] § 19-6-
15,” and in its final order, the trial court failed to specify any statutory basis for the
award: “Additionally, the Court awards the previous attorney’s fees in the amount of
$380.00 [which] were awarded in the prior Order. Additionally, the Court awards
$5,000.00 in attorney’s fees to the Respondent as part of the attorney’s fees incurred
in bringing this action.”
Georgia appellate courts have repeatedly held:
When there is more than one statutory basis for the attorney-fee award
and neither the statutory basis for the award nor the findings necessary
to support an award is stated in the order and a review of the record does
not reveal the basis of the award, the case is remanded for an
explanation of the statutory basis for the award and the entry of any
findings necessary to support it.
(Citations omitted.) Viskup v. Viskup, 291 Ga. 103, 106 (3) (727 SE2d 97) (2012)
(court may review record to determine statutory basis of attorney fees order); see also
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Blumenshine v. Hall, 329 Ga. App. 449, 454 (5) (765 SE2d 647) (2014). The final
order in the present case does not cite a statutory basis for the award or track any
statutory language, so we must look to the record to see if it reveals the basis of the
award.
We first turn to the two attorney fees statutes specified by Felice in her
counterclaim: OCGA §§ 19-6-2 and 9-15-14.
OCGA § 19-6-2 (a) (1) authorizes the grant of attorney fees in a divorce
action 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. OCGA § 9-15-14 (b) authorizes an award of
reasonable and necessary attorney fees upon a finding that an action or
any part thereof lacked substantial justification, was interposed for delay
or harassment, or an attorney or party unnecessarily expanded the
proceeding by other improper conduct. The purpose of an award of
attorney fees pursuant to § 19-6-2 is to ensure effective representation
of both spouses so that all issues can be fully and fairly resolved. The
damages authorized by § 9-15-14 are intended not merely to punish or
deter litigation abuses but also to recompense litigants who are forced
to expend their resources in contending with abusive litigation.
(Citations and punctuation omitted.) Moon v. Moon, 277 Ga. 375, 378 (6) (589 SE2d
76) (2003). Felice is not entitled to attorney fees based on OCGA § 19-6-2 because
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this case does not involve an action for “alimony, divorce and alimony, or contempt
of court arising out of either an alimony case or a divorce and alimony case.” OCGA
§ 19-6-2 (a); see Viskup, supra, 291 Ga. at 107 (3) (OCGA § 19-6-2 not applicable
in an action seeking modification of child custody); Cothran, supra, 286 Ga. App. at
641 (OCGA § 19-6-2 limited to alimony and divorce cases and subsequent actions
for contempt based on noncompliance with divorce or alimony decree).
It does appear, however, that OCGA § 9-15-14 would be applicable and that
the trial court could have used that statute as a basis for its award of attorney fees if
the proceedings were deemed frivolous, as argued by Felice’s counsel during the final
hearing, and fees are potentially warranted due to Keith’s failure to comply with
discovery requests. Under OCGA § 9-15-14 (a), the court shall award fees against a
party that “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.” Under OCGA § 9-15-14 (b), the court may award fees against a party that
“brought or defended an action, or any part thereof, that lacked substantial
justification” or “unnecessarily expanded the proceeding by other improper conduct,
including, but not limited to, abuses of discovery procedures . . .”
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The trial court, however, cited OCGA § 19-6-15 to support its award of
attorney fees in the order temporarily modifying child support. OCGA § 19-6-15 (k)
(5) states as follows:
In proceedings for the modification of a child support award pursuant to
the provisions of this Code section, the court may award attorney’s fees,
costs, and expenses of litigation to the prevailing party as the interests
of justice may require.
An award of attorney fees also appears to be appropriate under this statute despite the
fact that Felice did not explicitly request attorney fees on this basis.
Because the record before us indicates two plausible statutory bases for the
attorney fees award – OCGA § 9-15-14 or OCGA § 19-6-15 – and nothing in the
record eliminates either statute as a basis of the award, it was incumbent upon the trial
court to indicate which statute was relied upon in making its award. We therefore
must vacate the award of attorney fees and remand the case for the trial court to
articulate the statutory basis for its award. See O’Keefe v. O’Keefe, 285 Ga. 805, 806
(684 SE2d 266) (2009); Kuehn v. Key, 325 Ga. App. 512, 518 (2) (754 SE2d 103)
(2014).
In addition to requiring a statutory basis for an award of attorney fees, appellate
courts have repeatedly informed trial courts that they must set forth factual support
10
for such an award. “[I]f a trial court fails to make findings of fact sufficient to support
an award of attorney fees under either OCGA § 19-6-2 or § 9-15-14, the case must
be remanded to the trial court for an explanation of the statutory basis for the award
and any findings necessary to support it.” (Citation and punctuation omitted.)
Holloway v. Holloway, 288 Ga. 147, 150 (2) (702 SE2d 132) (2010); see also Cotting
v. Cotting, 261 Ga. App. 370, 371 (1) (582 SE2d 527) (2003). It is well settled that
[i]f 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 and whether the award is made under subsection (a) or (b) or both.
If the court fails to make these findings, the fees award must be vacated
and the case remanded for reconsideration.
Williams v. Becker, 294 Ga. 411, 413-414 (2) (a) (754 SE2d 11) (2014) (modification
of child support case). And, even if the trial court’s award was made under OCGA §
19-6-15, “nothing in the language of [that] statute[] suggests that, in the context of
a [modification] proceeding, a trial court may award an arbitrary amount of attorney
fees based solely on speculation or guesswork.” (Citation and footnote omitted.)
Jackson v. Sanders, 333 Ga. App. 544, 561-562 (6) (773 SE2d 835) (2015) (full
concurrence in Division 6).
Here, the trial court failed to set forth the factual basis for its award of attorney
fees. The record shows that Felice submitted an invoice from her attorney totaling
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$7,810.00. Her attorney confirmed that the balance of the attorney fees was in excess
of $7,800.00, not including the final hearing, and he testified in his place that “[i]t’s
been a long, hard case . . . [and the attorney fees] are fair and reasonable.” However,
the appellate record does not contain any statement regarding the amount of fees
attributable to the pursuit or defense of claims for which attorney fees are recoverable
and what portion of the attorney’s time was spent on matters that are not recoverable,
see Jackson, supra, 333 Ga. App. at 561 (6), or an explanation of how the trial court’s
$5,000.00 award was calculated in relation to the $7,800.00 that Felice requested. See
Williams, supra, 294 Ga. at 414 (2) (b). In addition, although there is evidence in the
record that might support an award of some amount of fees to Felice under OCGA §
9-15-14, the court made no express findings specifying any abusive litigation conduct
upon which such an award would be based or specifying whether the award was made
under OCGA § 9-15-14 (a) or (b). See Williams, supra, 294 Ga. at 414 (2) (b).
Accordingly, we vacate the award of attorney fees in the final order and remand
the case for the trial court “to reconsider this issue in accordance with this opinion,
to state the statutory basis for any award and any necessary findings to support it, and
to conduct an evidentiary hearing on the attorney fee issue” if warranted. (Citation
omitted.) Blumenshine, supra, 329 Ga. App. at 454 (5).
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3. Keith also argues that the trial court erred in granting a temporary
modification of child support pursuant to OCGA § 19-6-15 (k) (4) without specifying
the basis for the modification or setting forth the information required by OCGA §
19-6-15 (c) (2). However, this issue already has been decided adversely to Keith. In
Baca v. Baca, 256 Ga. App. 514, 519 (4) (568 SE2d 746) (2002), this Court
specifically found that “[OCGA] § 19-6-15 applies only to final verdicts or decrees,
and this case involves a temporary . . . order.” Id. We held that since the order in that
case awarded only temporary child support, the trial court was not required to engage
in the detailed calculation set forth in OCGA § 19-6-15 prior to making its award. Id.
Likewise, the Supreme Court held in Wilbanks v. Wilbanks, 238 Ga. 660, 661 (1) (234
SE2d 915) (1977), that findings of fact and conclusions of law are not required in
temporary child support orders because the merits of the pending action are not at
issue. Keith’s argument regarding the content of the temporary modification of child
support order therefore is without merit, and the temporary order modifying child
support is affirmed.
4. Keith also argues that the trial court erred in awarding attorney fees in
conjunction with the temporary modification of his child support obligation. Unlike
the attorney fee award in the final order in this case, the trial court specified in the
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temporary order modifying child support that it was awarding attorney fees in the
amount of $1,080.00 “in accordance with [OCGA] § 19-6-15 after consideration of
the facts and circumstances in this matter.” As stated in Division 2, that statute
permits an award of attorney fees to the prevailing party in proceedings for the
modification of a child support award “as the interests of justice may require.” OCGA
§ 19-6-15 (k) (5). Keith, however, contends that Felice cannot be considered a
“prevailing party” because the child support modification was a temporary order. We
disagree, and we find no error.
First, Keith fails to cite any case law which suggests that an award under
OCGA § 19-6-15 (k) (5) is limited to final hearings or that a temporary order cannot
establish a “prevailing party” for this purpose. Here, Felice clearly prevailed at the
temporary hearing because she received an increase in child support from $224.00 per
month ($112.00 per child) to $509.00 per month. Moreover, even if the trial court
should have waited until the final hearing to determine the “prevailing party,” the
temporary order does not require reversal at this time since Felice has now prevailed
in the case pursuant to the final order which we affirm, and the issue is now moot. See
generally Delgado v. Combs, 314 Ga. App. 419, 425 (1) (724 SE2d 436) (2012);
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Flowers v. Robinson, 157 Ga. App. 471, 472 (1) (a) (278 SE2d 38) (1981). This
enumeration of error therefore is without merit.
Judgment affirmed in part; vacated and remanded with direction in part.
Doyle, C. J. and Phipps, P. J., concur.
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