Longe v. Fleming

318 Ga.App. 258

733 S.E.2d 792

LONGE

v.FLEMING.

No. A12A1262.

Court of Appeals of Georgia.

Oct. 30, 2012.

Maureen Mae McLeod, Union City, Wayne Longe, for appellant.

Linda Fleming, for appellee.

BARNES, Presiding Judge.

Wayne Longe, pro se, appeals from the order of the trial court enforcing a settlement agreement and parenting plan between Longe and Linda Fleming, the mother of his minor child. Upon review, we affirm the order of the trial court in part, but, upon finding that the award of the superior court was silent as to the basis upon which attorney fees were awarded and upon inadequate findings, we vacate the award of attorney fees to Fleming and remand for further proceedings.

On August 13, 2009, Longe filed a petition for legitimation of the parties' then less-than-one-month-old infant, which was granted on August 23, 2010. After a hearing on the petition, the trial court awarded sole legal and physical custody to Fleming, and Longe waived visitation with the child. Fleming was also awarded $400.00 in monthly child support. On September 16, 2010, Longe filed a petition for modification of custody and visitation in which he asserted that he had misunderstood the rights he waived in the final order and requested that he be awarded joint legal custody, visitation, and other relief.

On June 27, 2011, Longe and Fleming attended a mediation and apparently reached an agreement “resolving all issues of custody, visitation, attorney's fees and any and all other issues which can be settled at this time.” The settlement agreement provided that all provisions of the August 2010 final order “are to remain in full force and effect.” The parties also agreed to a parenting plan incorporating the mediated terms. Fleming was responsible for drafting the documents and forwarding them to Longe.

On July 25, 2011, Longe filed a motion to enforce the settlement agreement in which he alleged that he had not received the child's social security number or the drafted settlement agreement within the time period stipulated in the mediated agreement. After filing the motion, Longe received and signed the settlement agreement, a copy of which is contained in the record, reflecting that he signed the agreement on August 22, 2011.¹Longe later forwarded a signed copy of the parenting plan but had “whited out the section that related to the limitation on access to [the child's medical] records.” ² In Fleming's counterclaim, she requested that the parenting plan be enforced and made an order of the court. Following a hearing, the trial court entered an order approving and incorporating both the settlement agreement and the parenting plan into its final order on Longe's petition for modification of custody and visitation. It is from that order that Longe appeals.

1. Longe contends that the trial court erred in enforcing the settlement agreement as written because it did not address legal custody and in enforcing the parenting plan. After reviewing the appellate record and the parties' briefs, we find that the record supports the trial court's judgment. Accordingly, we affirm the trial court's order enforcing the settlement agreement and parenting plan.

2. Longe also challenges the trial court's award of attorney fees to Fleming, complaining that the fees were not statutorily justified, and that Fleming failed to present sufficient evidence to support the court's award.

“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. When awarded by statute, such fees may be obtained only pursuant to the statute under which the action was brought and decided.” (Citations omitted.) Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000). We will not disturb the trial court's decision awarding attorney fees “unless it can be clearly shown by the appellant that the trial court committed grievous error or a gross abuse of discretion.” Bowman v. Bowman, 242 Ga. 259, 260, 248 S.E.2d 654 (1978).

Here, the trial court's order failed to cite to any specific statute authorizing the award of attorney fees, instead awarding Fleming attorney fees “as reimbursement of her attorney's fees incurred as a result of the actions necessary to enforce the agreement reached between the parties at mediation.” Furthermore, in her amended answer to Longe's motion to enforce the settlement agreement, Fleming failed to cite a statutory basis for attorney fees, only requesting that they be awarded based on Longe's conduct, which demonstrated that he “negotiated in bad faith, has been stubbornly litigious, and has caused [Fleming] unnecessary trouble and expense.” At the hearing on the motion to enforce, Fleming's attorney testified that following the mediation, she incurred $1900 in attorney's fees trying to enforce the settlement agreement. She provided the following details:

My hourly rate is $150 an hour. I've been practicing law for three years. We've been trying to get this agreement enforced since August. This is the third noticed hearing for this case.... I've spent or have incurred attorney's fees of $1,000 up to this point, in communications back and forth with [Longe's attorney], and six additional hours in court today, for an additional $900.

The trial court replied, “I will award all the attorney's fees against [Longe] because this should have been done and over with when it was signed.” Longe's attorney attempted to respond, but the trial court interrupted him and said “[u]nless you just want to say goodbye, I have ruled.”

Based on Fleming's pleadings, counsel's arguments and the trial court's ruling, it appears that the attorney fees were assessed...