Regan v. Edwards

334 Ga.App. 65

778 S.E.2d 233

REGAN

v.EDWARDS.

No. A15A0850.

Court of Appeals of Georgia.

Oct. 1, 2015.

Scott Michael Kaye, Atlanta, for Appellant.

Kyla Suzanne Lines, for Appellee.

Opinion

DOYLE, Chief Judge.

Beverly Regan appeals from an order awarding attorney fees under OCGA § 9–15–14(b)to her ex-husband, Donald Blair Edwards III. For the reasons that follow, we vacate in part the award of attorney fees.

We review a trial court's grant of attorney fees for an abuse of discretion.¹

The record reveals that the parties' divorce settlement agreement was entered in September 2009, and the final order of divorce entered in February 2010.²

On July 17, 2012, Regan provided written notification to Edwards that she expected to move to Massachusetts with their two sons by September 8, 2012. In response to the notification, on July 25, 2012, Edwards filed a petition for modification of child custody, parenting time, and child support, and a citation for contempt. Edwards requested an emergency hearing on the matter, and a hearing was held on August 29, 2012. Regan answered and responded, asking for a change in custody based on long-distance visitation and alleging that the move was necessary because she required family support based on Edwards's continued failure to provide previously agreed-to financial support and payment on the couple's marital tax obligations. Thereafter, a temporary order was entered.

On March 15, 2013, the parties had a mediation, which resulted in a partial agreement. On April 2, 2013, a partial final agreement was filed, and Edwards filed an amended petition, asking the trial court to decrease his child support payments to Regan. Regan answered, arguing that the children's childcare costs had not materially changed since entry of the 2009 decree, and she had experienced a 25 percent decrease of income since that time. Additional mediation and negotiations ensued regarding substantial pre-divorce tax obligations, and although the parties purportedly agreed to a settlement of those issues, Regan refused to agree to formal entry with the court of that purported agreement. Edwards successfully moved for enforcement of this settlement agreement, the details of which have no bearing on this appeal, and for attorney fees pursuant to various provision of OCGA § 9–15–14.

Regan contends that the trial court erred by awarding a portion of attorney fees to Edwards under OCGA § 9–15–14(b)because the conduct precipitating the award occurred prior to initiation of the litigation.³We agree.

Pursuant to OCGA § 9–15–14(b)

[t]he court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

This Court has explained that attorney fee awards pursuant to OCGA § 9–15–14(b)may not be based on conduct that occurred prior to litigation.⁴

Although the trial court's order announced that $10,463 fees were awarded under OCGA § 9–15–14(b)for “unnecessarily expand[ing] the proceedings,” the conduct underlying this award was the trial court's finding that there was “no basis” for Regan's planned move to Massachusetts that precipitated Edwards's filing of the action for modification of child support and parenting time.⁵Regan's announced intention to move to Massachusetts occurred prior to the instigation of Edwards's petition; therefore, the trial court abused its discretion by granting Edwards's motion for fees under OCGA § 9–15–14(b)for this conduct.⁶Regan's defense of Edwards's petition for custody and child support modifications was legally supportable except for two instances of conduct for which the trial court awarded separate amounts of attorney fees the award of which Regan does not challenge on appeal.⁷Accordingly, the order and amended order are vacated in part as to the attorney fee award of $10,463 erroneously based on Regan's pre-litigation conduct.⁸The case is remanded for entry of an award consistent with this opinion.

Judgment vacated in part and case remanded with direction.

PHIPPS, P.J., and BOGGS, J., concur.

1 See Longe v. Fleming,318 Ga.App. 258, 261(2), 733 S.E.2d 792 (2012); Wallace v. Noble Village & c.,292 Ga.App. 307, 310, 664 S.E.2d 292 (2008).

2 Regan filed a number of contempt actions after the final order of divorce was entered in order to enforce provisions of the incorporated settlement agreement,...