Wesley Wade Wilson v. Berenice Guerrero ( 2020 )

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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
January 28, 2020
In the Court of Appeals of Georgia
A19A2475. WILSON v. GUERRERO.
MCMILLIAN, Presiding Judge.
Following our grant of his application for discretionary review, Wesley Wade
Wilson appeals from the denial of his motion for new trial in this child support case,
contending that the trial court failed to comply with OCGA § 19-6-15 in calculating
the child support award and that the court erred by awarding attorney fees. As more
fully set forth below, we now vacate the award of child support and attorney fees and
remand for further proceedings.
The record shows that appellant Wilson and appellee Berenice Guerrero
(hereafter “Father” and “Mother”) are the unmarried parents of a daughter, who was
born in December 2007. In November 2009, the parties entered into a Final Consent
Order (“Consent Order”), pursuant to which the Father legitimated the child; the
consent order further established primary physical custody in the Mother with
visitation granted to the Father and set the amount of child support the Father was to
pay to the Mother on a monthly basis. In 2016, the Father filed a petition for
modification of the consent order seeking to modify the provision of the Consent
Order that prohibited either parent from having unrelated members of the opposite
sex stay overnight while the child was in their custody. The Mother, who had since
married, filed an answer to the petition in which she opposed the change to the
overnight guest provision, noting that the Father’s violation of the provision had been
the subject of previous court proceedings that he did not mention in his petition; the
Mother also filed a counterclaim seeking an increase in child support.
Following an evidentiary hearing, the trial court entered a final order on April
3, 2017, in which it denied the Father’s request to remove the provision of the
Consent regarding overnight visitation.1 Additionally, the trial court granted the
Mother’s request for an increase in child support from $900 per month to $1142 per
month and her request for attorney fees in the amount of $5,000.
Father filed a “Motion for New Trial and Motion for Reconsideration,”
challenging the award of attorney fees on several grounds and challenging the
1
This portion of the trial court’s order is not challenged on appeal.
2
evidence presented to support the finding by the trial court that the Mother had paid
$4,195 a year for extracurricular activities for the child. The trial court denied the
motion for reconsideration on May 10, 2017, and following a hearing, denied the
motion for new trial on May 15, 2018. The Father filed an application for
discretionary review, which we granted, and then a timely notice of appeal.2
1. In two related enumerations of error, Wilson challenges the attorney fee
award, contending that the trial court erred in awarding attorney fees based on the
court’s inherent power to award fees. We agree that reversal of the attorney fee award
is required and that the case must be remanded for further proceedings on this issue.
The record shows that the Mother made a request for attorney fees in her
answer and counterclaim, but did not specify a basis for the award other than she had
been forced to hire counsel to defend against the modification petition. She did not
subsequently file a separate motion requesting a fee award, and although the Mother
was questioned concerning the amount she paid to retain counsel at the hearing on the
modification petition and her counsel alleged the Father, who is an attorney practicing
family law, had engaged in certain discovery abuses, the Mother never mentioned a
2
We dismissed the Father’s original appeal, which was docketed in this Court
as Case No. A18A0546, on the basis that the judgment was not yet final because the
trial court had not yet ruled on the pending motion for new trial.
3
statutory basis for the award. The Father’s attorney opposed the award, pointing out
that the Mother had never filed a motion to compel or request for sanctions due to the
alleged discovery abuses.
In the final order on the modification petition, the trial court outlined the
Father’s alleged discovery abuses, which it summarized as his failure to fully respond
to or supplement discovery requests despite repeated requests and controlling law and
his failure to provide a signed and notarized Domestic Relations Financial Affidavit
(“DRFA”) to the trial court or the Mother as required by the governing statute. Noting
its “broad discretion” and “inherent power” to award fees when a motion is made by
either party or on its own initiative, the trial court concluded that “[g]iven the fact that
the Father is a licensed attorney practicing family law, the Court finds his behavior
inappropriate” and ordered him to pay $5,000 to the Mother’s counsel within 30 days.
The Father challenged the fee award in his motion for new trial/motion for
reconsideration, arguing as he does on appeal that the evidence was insufficient to
support the fee award; that the Mother’s counsel did not identify with particularity
what conduct he was being sanctioned for; the trial court failed to provide a statutory
basis for the award; and he was not put on notice as to the statutory basis for the
award. In its order denying the Father’s motion for new trial, the trial court stated that
4
the attorney fee award “reflects both the relative financial position of the parties and
was reflective of Plaintiff’s inappropriate litigation tactics during the case[,]” but
again did not reference any particular statutory basis authorizing the award.
“Generally, an award of attorney fees is not available in Georgia unless
authorized by statute or contract.” (Citation and punctuation omitted.) Ward v. Ward,
289 Ga. 250, 251 (2) (710 SE2d 555) (2011). Here, the Mother requested fees in her
counterclaim because she had been forced to hire an attorney to defend against the
modification petition, but she has never referenced any particular statute as
authorizing attorney fees in this case. The trial court also did not cite to any statute
authorizing the award in either the initial order on the modification petition or in the
order denying the Father’s motion for new trial; in fact, the only reference to a statute
in relation to the fee award was the Father’s attorney’s passing reference to OCGA
§ 9-15-14 in arguing against the award at the modification petition hearing.
We agree with the Father that the attorney fee award cannot stand under these
circumstances. Although in the modification order the trial court made references to
factors that indicate that the award was being made under OCGA § 9-15-14 (b) due
to sanctionable conduct, the court also referred to the relative financial position of the
parties in the order denying the Father’s motion for new trial, which would indicate
5
the award was being made under OCGA § 19-6-2. However, an award under OCGA
§ 19-6-2 based on the financial circumstances of the parties is not applicable here
because it only applies to proceedings for alimony, divorce and alimony, or contempt
of actions arising out of same, including contempt actions involving child custody or
visitation rights in divorce and alimony cases. Suarez v. Halbert, 246 Ga. App. 822,
825 (1) (543 SE2d 733) (2000) (OCGA § 19-6-2 “applies exclusively to litigation
derived from divorce and alimony disputes[.]”).3 Accordingly, the fee award must be
vacated and the case remanded for further proceedings on the issue of attorney fees.
Id.
2. The Father next argues that the trial court erred by including $4,195 in child
care expenses on Schedule D of the child support worksheet because the Mother did
not present any documentary evidence which would support an award of work related
child care expenses. The Father also argues that those expenses, if any, should have
been listed as extracurricular expenses on Schedule E of the child support worksheet
instead and that because the expenses should have been treated as expenses for
3
Although OCGA § 19-6-15 (k) (5) authorizes an award of fees in cases
involving modification of child support, neither party makes any argument that fees
were awarded under that section, and the trial court gave no indication the award was
made pursuant to that section.
6
extracurricular activities, the trial court was required to enter findings of fact to
support a deviation from the basic child support obligation as mandated by OCGA
§ 19-6-15 (c).
To resolve these issues and address the Mother’s contention on appeal that at
least some of these issues have been waived, we must set out the relevant testimony
and argument from the hearing on the modification petition, the motion for new trial,
and the hearing on the motion for new trial. Turning first to the hearing on the
modification petition, the transcript shows that the Mother testified that she was
seeking an increase in child support because the Father’s income had increased and
because she believed that the Father should pay for part of the child’s extracurricular
activities. On cross-examination, the Mother admitted that she did not have
documentary evidence of the specific costs of the extracurricular activities with her
at the hearing, and on redirect examination she testified that she had provided the
Father proof that the costs of the child’s extracurricular activities, summer care, and
school care amounted to approximately $4,195. At the conclusion of the evidence, the
Father objected on the basis that the Mother did not present any evidence regarding
the child’s extracurricular activities or child care costs. In the modification order, the
trial court appeared to reject this contention, finding that the Mother testified without
7
objection that she incurred $4,195 in expenses for extracurricular activities and
annotated those costs in her timely filed DRFA.
The Father challenged this finding in his motion for new trial, arguing again
that the only evidence presented as to the costs was the Mother’s testimony at the
hearing, and that the Mother did not specify what activities the child participated in
or how much each activity cost. At the hearing on the motion, the Father elaborated
on these arguments and also asserted that there was no evidence presented at the
hearing to determine the breakdown of the amount spent on extracurricular activities,
after school activities, and summer programs; the Mother had placed the activities
under Schedule D child care, not Schedule E extracurricular activities on the child
support worksheet; and extracurricular activities would require a deviation from the
child support guidelines while childcare expenses would not. The Mother’s attorney
argued that the expenses were properly listed as child care expenses because the child
engaged in these activities while the Mother is at work, and that no deviation was
required because the expenses did not meet the threshold amount at which a deviation
is required. The trial court denied the motion for new trial, finding that the child
support calculation was based on the evidence presented at the hearing and was
appropriate.
8
Turning to the Father’s contentions on appeal, we first note that our Supreme
Court has found that testimony alone about the amount incurred for child care
expenses may be sufficient proof of those expenses under the “any evidence”
standard of review of the trial court’s findings of fact. See Taylor v. Taylor, 293 Ga.
615, 617 (2) (748 SE2d 873) (2013). But see OCGA § 19-6-15 (h) (1) (D) (“If child
care is or will be provided by a person who is paid for his or her services, proof of
actual cost or payment shall be shown to the court before the court includes such
payment in its consideration.”). However, even if the Mother’s testimony was
sufficient to prove that the expenses were incurred and paid, we believe the remainder
of the Father’s contentions have merit. Although the Mother argued at the hearing on
the motion for new trial and now argues on appeal that the expenses were incurred
to provide activities for the child while the Mother was at work, and thus were
properly categorized as child care, the Mother’s testimony does not fully support that
contention. At the hearing, she testified that the $4,195 was the amount expended for
summer care, school care, and extracurricular activities, drawing no distinction
between expenses that were necessary for the child’s “care” and her extracurricular
activities. Because it is not altogether clear from the record which categories of
expenses were included in the $4,195, or whether all of the child’s extracurricular
9
activities that were included as child care on the worksheet occurred while the Mother
was working and thus were properly included as child care expenses on Schedule D,
instead of extracurricular activity expenses on Schedule E, the trial court’s
modification of child support must also be vacated and this case remanded for further
proceedings consistent with this opinion. Further, even if the Father did not make the
same precise argument that he now makes on appeal concerning the trial court’s
compliance with the written findings requirement of OCGA § 19-6-15,4 because this
case must be remanded for further proceedings and a new order issued, this deficiency
can be remedied as necessary depending on the outcome of the proceedings upon
remand. See Kennedy v. Kennedy, 309 Ga. App. 590, 592-93 (1) (a) & (b) (711 SE2d
103) (2011) (concerning the need for written findings when a deviation is ordered).
3. Lastly, the Father contends that the trial court erred by finding that he failed
to file an answer to the Mother’s counterclaim because he was not required to file an
answer unless the court first ordered him to do so. The Father is correct that OCGA
§ 9-11-12 specifically provides that an answer to a counterclaim is not required unless
4
See Winchell v. Winchell, 2019 Ga. App. LEXIS 564, *6-7 (1) (Case No.
A19A1531, decided October 16, 2019) (discussing waiver of compliance with the
written findings requirement of OCGA § 19-6-15).
10
ordered by the trial court. The Father is also correct that in its final order on
modification, the trial court noted that “[t]he Father failed to timely file an Answer
or Objection on [the] counter-claim[.]” However, it does not appear that the trial court
imposed any penalty or otherwise ruled against the Father on the basis that he failed
to answer the counterclaim. Accordingly, this enumeration provides no basis for
reversal.
Judgment vacated and case remanded with direction. McFadden, C. J., and
Senior Appellate Judge Herbert E. Phipps concur.
11