Hill v. Burnett

349 Ga.App. 260

825 S.E.2d 617

HILL

v.BURNETT.

A18A1655

Court of Appeals of Georgia.

March 7, 2019

Ney Hoffecker Peacock & Hayle, William B. Ney, for appellant.

Ney Hoffecker Peacock & Hayle, William B. Ney, for appellant.

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 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 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 claim[s] 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 S.E.2d 806 (2012). See id., citing Ellis v. Johnson , 263 Ga. 514, 516-517 (2), 435 S.E.2d 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, 725 S.E.2d 806.

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 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 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 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 S.E.2d 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, 281–282 (2), 450 S.E.2d 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 Constr. Co. , 314 Ga. App. at 676, 725 S.E.2d 806, 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 S.E.2d 303 (2003) ; Worley v. Worley , 161 Ga. App. 44, 45 (5), 288 S.E.2d 854 (1982). See also Lane v. K-Mart Corp. , 190 Ga. App. 113, 115-116, 378 S.E.2d 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 419 (1995), 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), 533 N.W.2d 419. 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, 533 N.W.2d 419 (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 A.2d 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, 533 N.W.2d 419 ). Hill also cited In the Matter of Brooke S. B. v. Elizabeth A. C. C. , 28 N. Y. 3d 1, 27-28 (IV), (V) 61 N.E.3d 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 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...