McLendon v. McLendon , 297 Ga. 779 ( 2015 )

In the Supreme Court of Georgia
Decided: October 5, 2015
S15F1254. MCLENDON v. MCLENDON.
MELTON, Justice.
Following the trial court’s denial of her motion for a new trial regarding
her divorce from Jason McLendon (Husband), Amanda McLendon (Wife) filed
an application for discretionary appeal. Pursuant to Supreme Court Rule 34, we
granted Wife’s application and posed the following questions: (1) Did the trial
court commit reversible error in its determinations on custody, child support, or
any other issue addressed in the parties’ Final Judgment and Decree of
Divorce?; (2) Did the trial court err in awarding attorney fees under OCGA §
9-15-14 (b), where it actually granted part of the relief sought in Wife’s motion
for new trial/motion for reconsideration? For the reasons set forth below, we
affirm.
1. The record shows that Wife and Husband were divorced by a final
decree entered in May of 2013. The parties have one minor child, and the decree
awards primary physical custody to Husband, with joint legal custody. Wife has
visitation every other weekend and on some weeknights. During the summer
months, Wife has primary custody, and Husband has visitation rights. Wife is
required to pay Husband $940.89 per month during the school year, and, in the
summer, no child support is paid by either party. Following entry of the decree,
Wife filed a motion for new trial and/or motion for reconsideration. In her
written motion, Wife raised issues regarding custody. During the hearing on
Wife’s motion, she orally raised issues regarding items of personal property she
had left in Husband’s home and certain issues with the parenting plan. In
response, the trial court issued an order denying Wife’s motion with regard to
custody and a supplemental order modifying the property division and parenting
plan. Also, pursuant to OCGA 9-15-14 (b), the trial court awarded
approximately $4,000 in attorney fees to Husband, finding that the motion for
new trial was brought, at least in part, for purposes of delay. Wife now
challenges these rulings.
2. Wife contends that the trial court erred by abating the child support
obligation of both parents during summer months without complying with
OCGA §19-6-15 (c) (2) (E). A review of the record, however, shows that Wife
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has waived this claim for purposes of appeal.
It is well-settled that “a motion for new trial, but not a motion to set aside,
is a proper means by which the movant can complain of the trial court's failure
to comply with the child support guidelines in OCGA § 19–6–15, including the
failure to make findings required thereby.” (Citation omitted.) Kuriatnyk v.
Kuriatnyk, 286 Ga. 589, 591 (2) (690 SE2d 397) (2010). In this case, however,
Wife did not raise any claim regarding the deviation in her motion for new trial,
and the trial court did not reach this issue in either of its two orders on Wife’s
motion for new trial. As a result, Wife has waived our review of this issue.
McCarthy v. Ashment-McCarthy, 295 Ga. 231 (2) (758 SE2d 306) (2014).
3. Wife argues that the trial court failed to appropriately consider the best
interests of the parties’ minor child when it awarded primary custody to
Husband. Specifically, Wife contends that the trial court based its determination
solely on its desire to punish Wife for an act of adultery. The record belies this
contention.
As an initial matter, it must be emphasized that,
[w]here the trial court has exercised its discretion and awarded
custody of children to one fit parent over the other fit parent, this
Court will not interfere with that decision unless the evidence
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shows the trial court clearly abused its discretion. Urquhart v.
Urquhart, 272 Ga. 548 (1) (533 SE2d 80) (2000). Where there is
any evidence to support the decision of the trial court, this Court
cannot say there was an abuse of discretion. Jackson v. Jackson, 230
Ga. 499, 500 (197 SE2d 705) (1973).
Welch v. Welch, 277 Ga. 808, 809 (596 SE2d 134) (2004).
A review of the trial court’s orders in this matter indicate that it was
guided by a consideration of the best interests of the parties’ minor child. The
trial court found that Wife lacked credibility in her description of her
relationship with the child and that she had made a series of poor judgments that
adversely affected her relationship with the child. Contrary to Wife’s arguments,
it is evident that the trial court carefully weighed the evidence in making a
custody decision and it was not merely motivated to punish Wife.
4. Wife contends that the trial court erred by awarding attorney fees to
Husband, maintaining that, because the trial court granted some of Wife’s
requested relief, the award of any fees was inappropriate. We disagree.
OCGA § 9-15-14 (b) provides:
The 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
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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 available under Chapter 11 of this title, the “Georgia
Civil Practice Act.” As used in this Code section, “lacked
substantial justification” means substantially frivolous, substantially
groundless, or substantially vexatious.
(Emphasis supplied.)
A review of the record shows that, at the hearing on Wife’s motion for
new trial, issues were raised that were not included in Wife’s motion.
Specifically, the parties requested that changes be made to the parenting plan
and that Wife be awarded additional items of personal property such as
cookbooks and small appliances from the marital home. The trial court
ultimately granted these requests. With regard to the arguments raised in the
written motion for new trial, however, the trial court determined that they lacked
substantial justification and were interposed, at least in part, to delay the
payment of child support and other sums. The claims which formed the basis for
the trial court’s award of fees, therefore, were entirely separate from the later
claims on which Wife was granted some relief by the trial court. On this basis,
the trial court properly imposed fees in line with the statute.
Contrary to Wife’s contentions, this case is distinguishable from Fox-
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Korucu v. Korucu, 279 Ga. 769, 770 (2) (621 SE2d 460) (2005). In that case,
we found that the wife
filed a single two-page brief requesting a new trial, or, in the
alternative, reconsideration of the final judgment. The unsuccessful
portion of the motion asking for a new trial could not have caused
significantly more “unnecessary expense” to husband than that
which resulted from the successful portion of the motion asking for
reconsideration of the final judgment. It is illogical to hold that a
motion for a new trial is frivolous while simultaneously granting a
motion for reconsideration posing similar arguments.
Id. In this case, by contrast, the trial court found that the entirety of Wife’s
written motion lacked substantial justification, and it noted that the filing of this
motion engendered an “email war” between the parties that took up substantial
time and generated large attorney fees.1 The trial court did not abuse its
discretion in awarding attorney fees to Husband.
5. In several additional enumerations, Wife: (a) challenges a portion of the
decree which requires the parties to file separate federal tax returns in 2012; (b)
argues that there was no evidence supporting a finding that she agreed that
certain mortgage payments would not be dischargeable in bankruptcy; and (c)
1
The trial court recognized that, to an extent, this email battle was the fault
of both parties, and, accordingly, it reduced the amount of fees requested by
Husband a significant amount.
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contends that the decree is too vague to enforce. The record shows, however,
that Wife raised none of these issues in her written motion for new trial. Wife
also failed to raise any of these arguments at the hearing on the motion for new
trial, despite the fact that the trial court considered additional arguments by Wife
at that time.2 Under these circumstances, Wife has waived the right to raise these
contentions for the first time on appeal. See McCarthy, supra at 233 (2). In any
event, Wife’s contentions appear to lack any merit, and to the extent that she
questions the details of her obligations under the agreement, she may file a
motion for clarification with the trial court.
Judgment affirmed. All the Justices concur.
2
The record indicates that, prior to the issuance of the decree, Wife never
responded to a request by the trial court to review the property division. Even
so, the trial court allowed Wife to take issue with it at the hearing on the motion
for new trial.
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