Pamela Gadams Brown v. Brent Murdoch Brown ( 2021 )

FOURTH DIVISION
REESE, P.J.,
MARKLE, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
April 13, 2021
In the Court of Appeals of Georgia
A21A0122. BROWN v. BROWN.
PHIPPS, Senior Appellate Judge.
Pamela Gadams Brown (the “mother”) appeals from the trial court’s order
denying her request for declaratory judgment and awarding Brent Murdock Brown
(the “father”) attorney fees under both OCGA §§ 9-15-14 and 19-9-3 (g).1 Because
the trial court erred in denying the mother’s request for declaratory judgment, we
reverse the trial court’s order in that regard, and we reverse the trial court’s award of
OCGA § 9-15-14 (b) attorney fees based on the mother’s pursuit of the declaratory
judgment action. We further find that the trial court erred in its award of attorney fees
1
The mother initially filed an application for discretionary appeal, which this
Court granted. See Brown v. Brown, Case No. A20D0439 (granted Aug. 3, 2020).
under OCGA § 19-9-3 (g), and we vacate that award and remand the case for the
court to re-consider its attorney fee award under that statute.
The record shows that the mother and the father were previously married and
have two children together, who were born in 2008 and 2011. The parties divorced
in 2015 pursuant to a final judgment and decree of divorce. The divorce decree
awarded joint legal and physical custody of the children to the parties, and provided
that they would share parenting time under a parenting plan, which was incorporated
into the decree. The parenting plan included a provision for “SUMMER VACATION
WEEKS” which stated:
Each parent shall be entitled to two consecutive weeks of uninterrupted
parenting time with the minor children during the children’s summer
vacation from school. Father shall have the first choice of dates for his
summer vacation with the children in all odd-numbered years, with
Mother having the first choice of dates in all even-numbered years. The
party with the first choice of dates shall notify the other party of his or
her selection of dates by April 1st of each year, while the party with the
second choice of dates shall notify the other party of his or her selection
of dates by April 15th of each year.
The mother admits that the parties – by mutual agreement – deviated from the
parenting plan by taking non-consecutive summer time from 2015 through 2018.
However, in early 2019, the mother told the father that she intended to take the
2
children on a summer trip to Africa and requested that he select his two weeks
pursuant to the parenting plan for planning purposes. When the parties could not
resolve the issue, the mother filed a “petition for modification of child custody and
visitation[,] and motion for declaratory judgment.”2 Regarding the motion for
declaratory judgment, the mother asserted that in 2017, the last time the father
selected his summer vacation weeks before her under the parenting plan, he selected
six separate or non-consecutive days throughout the summer, which was inconsistent
with the parenting plan directive for each party to select two consecutive weeks of
uninterrupted parenting time. The mother requested that the trial court (a) “admonish
Father that he must pick weeks, not days, which is consistent with the spirit and
language of the Parenting Plan,” and (b) “interpret and emphasize that the Summer
Vacation Weeks of the Parenting Plan be taken in weekly increments, not daily
increments.” The mother also requested attorney fees.
The father filed an answer opposing all of the mother’s requests for relief. In
response to the mother’s motion for declaratory judgment, the father asserted that the
parenting plan offers the parties “two consecutive weeks” with the children during
2
The mother subsequently withdrew her request to modify the custody
provisions of the divorce decree.
3
the summer without any further definition of how those weeks are allocated or
exercised, which was demonstrated by the fact that the parties had never exercised
two “consecutive” weeks. The father counterclaimed for attorney fees and litigation
expenses pursuant to OCGA §§ 9-15-14 and 19-9-3, asserting that while he had made
efforts to resolve the issue with the mother, she had engaged in abusive litigation
tactics, pursued unreasonable positions in litigation, and refused to participate in
cooperative co-parenting efforts and settlement discussions.
The mother filed a request for emergency relief seeking a temporary
modification of summer visitation to enable her to take the children on the trip to
Africa, but the trial court denied the motion. The May 16, 2019 order, which was
prepared by the father’s attorney, specifically noted that the summer vacation
provision of the parenting plan was “currently in dispute.”
On April 29, 2020, the trial court held a final hearing on the mother’s request
for declaratory judgment. At the hearing, the mother’s counsel stated that she would
be introducing evidence regarding the declaratory judgment, to which the court
responded, “[m]y understanding is that [the father is] not opposing that. Essentially
consent to it? Isn’t that right[?]” The mother’s counsel agreed, but stated that she was
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going to put up evidence “to show the judge what the issue is with the declaratory
judgment[,]” in defense of the father’s request for attorney fees, and in support of the
mother’s request for attorney fees.
According to the mother, although the father said that he did not dispute the
language of the parenting plan, his actions showed otherwise, and she still needed the
trial court to rule on her declaratory judgment action and clarify that the summer
vacation weeks parenting plan language required the parties to select two
consecutive, uninterrupted weeks during the summer. The mother testified that she
sought declaratory judgment because she was unable to plan summer trips because
the father was not being flexible; he believed that he did not have to take two
consecutive summer weeks, and he wanted the children to participate in swimming
for five weeks every summer. The mother told the trial court, “I’m really afraid to be
flexible and do the weeks part because we will walk away, and this will happen again,
and I think we are both really tired of litigation. . . . I was flexible before, a week here
and a week there, but I think that we need to follow the letter of the law.”
The father and his counsel asserted that they did not contest the parenting plan
language, had told the mother repeatedly that they did not contest the language, and
yet the mother still pursued her action. The father’s counsel specifically stated, “[w]e
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are not contesting what the parenting plan says. It says two consecutive weeks.”
However, both the father and his counsel argued that the parties had never followed
the parenting plan language until the mother filed her declaratory judgment action.
And, the father repeatedly testified that he selected his summer dates so the children
could participate in swimming and other activities.
Evidence presented at the hearing showed that in March 2017, after the father
selected six separate days throughout the summer and stated that he would select his
remaining eight days after the mother selected her days, the mother insisted that the
“summer vacation weeks” provision of the parenting plan required the parties to
select two weeks of consecutive time with the children; the plan did not allow the
parties to choose random days. She requested that the father “please pick your weeks,
and I will still take July 22nd-29th and then after you pick your two weeks, I will pick
another.” The father replied that he disagreed with the mother’s view of the plan, and
he would not change his selections.3 On April 9, 2018, the father sent an email to the
mother stating that he had not received the mother’s summer dates, which had been
due on April 1, and selecting six separate summer days and a week in early August.
3
The father’s email reads: “It does not state that it states we can have two
consecutive weeks don’t like it file a complaint otherwise I’m not changing the
thing[.]”
6
The father’s counsel noted in a February 2019 letter that the father would agree
to language that the summer parenting plan must be exercised in seven-day periods
if the mother agreed to remove language from the plan that the father could not
schedule extracurricular activities during her parenting time. In March 2019, the
father notified the mother that he was selecting three days in May, four days in July,
and a week in August. The mother’s counsel informed the father’s counsel that the
father’s selections were “NOT acceptable” under the parenting plan, and requested
that the father select two consecutive weeks of summer parenting time. The father’s
counsel replied: “We disagree with your interpretation of the summer schedule
outlined in the Parenting Plan, as the parties have never exercise[d] two consecutive
weeks in a row with the children.” The email noted once again that although the
father did not agree with the mother’s interpretation of the Parenting Plan, he would
select a seven consecutive day period if the mother agreed to allow the children to
participate in swim meets.
In April 2019, the mother sent the father an email in which she offered July 22-
August 5 or July 5-18 as her two consecutive summer weeks with the children. The
mother’s attorney also sent a letter attempting to settle the issues, but the parties could
not agree on terms. In fact, the father was only willing to agree that the summer
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vacation weeks would be exercised in seven-day periods. The father’s attorney sent
a letter proposing that each party have an additional week of summer vacation, raising
each party’s uninterrupted summer weeks from two weeks to three weeks, and that
each party could exercise two of the weeks consecutively. The letter further stated
that the father was willing to let the mother have first choice of weeks every summer
as long as the mother agreed that the children could participate with the father in the
five swim meets during the summer.
On August 27, 2019, the mother’s counsel sent the father’s counsel an email
stating that, according to the mother, the parties “have agreed to cancel today’s
mediation and that everyone is going to dismiss their actions and kick the can down
the road. Please confirm[.]” The father’s counsel responded that the father agreed to
forego mediation, but he reserved his right to request attorney fees. To which the
mother’s counsel replied that if the father was reserving his request for attorney fees,
then so was the mother, and she wanted to be heard on her request for declaratory
judgment regarding summer vacation weeks.
On October 1, 2019, the mother’s counsel sent the father’s counsel an email
stating that it was counsel’s “understanding that [the parties] want to mutually
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dismiss. Please confirm.” On October 2, 2019, the father’s counsel responded that the
father was forced to spend nearly $25,000 on an “emergency issue” that was denied
by the court and still wanted to pursue attorney fees. As for the mother’s intention to
pursue declaratory judgment, the letter stated,
We are not disputing the Parenting Plan says what it says. [The father’s]
only issue is that neither party has ever requested 2 consecutive weeks
during the summer, but that’s irrelevant to your request for declaratory
judgment. You can certainly move forward on the Motion for
Declaratory Judgment, but we are not contesting it.
The letter also indicated that the father would dismiss his counterclaim in exchange
for $15,000 in attorney fees. The father, however, subsequently withdrew his offer
of settlement.
On April 9, 2020, the father’s counsel sent a letter to the mother’s counsel
reiterating that the father was not disputing the declaratory judgment:
As I told you in August of 2019, [the father] is not disputing the
language of the parenting plan. There is no need for declaratory relief on
that subject; yet [the mother] has not withdrawn her petition. . . .
Frankly, we are confused as to why [the mother] is proceeding with this
case and what she hopes to accomplish. . . . We are happy to enter into
a consent order on the declaratory judgment issue to reduce costs.
However, on April 15, 2020, the father sent an email to the mother selecting his
summer dates: (a) July 27-August 4 if camp is cancelled; or (b) July 22 and July 23
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if camp is NOT cancelled. In an April 21, 2020 letter from the mother’s counsel to the
father’s counsel, the mother stated that she had waited to respond to the father’s letter
in hope that the issues would be resolved at mediation and to see if [the
father] would select two consecutive weeks for this summer by his April
15th deadline. He did not, leading me to believe he still does not
understand and disputes the clear meaning of the Parenting Plan.
Despite your claim that you conceded the declaratory
judgment/Parenting Plan language issue for the first time on October
2nd, it is obvious to me that there is still a dispute.
Following the hearing, the trial court issued an order (a) denying the mother’s
request for declaratory judgment, and (b) awarding the father attorney fees pursuant
to OCGA §§ 9-15-14 (b) and 19-9-3 (g). In denying the mother’s request for
declaratory judgment, the court concluded that
[t]he Parenting Plan permits each party “up to”4 two (2) consecutive
weeks of parenting time with the children during the summer, but there
is no requirement that each party exercise two (2) full consecutive and
uninterrupted weeks of summer parenting time. Further, there is no
requirement in the Parenting Plan that either party must select his or her
summer parenting time in weeks, rather than days. Petitioner testified at
the final hearing that she wanted the declaratory judgment to state that
each party is required to select his or her summer weeks in two (2) week
4
While the trial court quoted the words “up to” as if they are in the text of the
parenting plan, these words are not in the plan. The plan indicates that “[e]ach parent
shall be entitled to two consecutive weeks of uninterrupted parenting time with the
minor children during the children’s summer vacation from school.”
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consecutive and uninterrupted blocks, which is not required by the
Parenting Plan and thus not something the Court can therefore order as
a declaratory judgment. Accordingly, [the mother’s] request for
declaratory judgment is DENIED.
The mother appeals this ruling.
1. The mother contends that the trial court erred in denying her motion for
declaratory judgment. Specifically, she argues that the trial court’s interpretation of
the parenting plan “summer vacation weeks” language not only contradicts the plain
language of the parenting plan and effectuates a modification of the plan, but
potentially strips the parent selecting second of her right to two consecutive weeks
depending on the days selected by the parent choosing first. We agree.
The State Declaratory Judgment Act gives superior courts the
power to declare rights and other legal relations of any interested party
in “cases of actual controversy” under OCGA § 9-4-2 (a) and “in any
civil case in which it appears to the court that the ends of justice require
that the declaration should be made.” OCGA § 9-4-2 (b).
Walker v. Owens, 298 Ga. 516, 518 (783 SE2d 114) (2016) (citation omitted). The
Act is designed “to settle and afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations[.]” OCGA § 9-4-1.
The proper scope of declaratory judgment is to adjudge those rights
among parties upon which their future conduct depends. Such relief is
authorized when there are circumstances showing a necessity for a
determination of the dispute to guide and protect the plaintiff from
11
uncertainty and insecurity with regard to the propriety of some future act
or conduct, which is properly incident to his alleged rights and which if
taken without direction might reasonably jeopardize his interest.
Walker, 298 Ga. at 518-519 (citations and punctuation omitted). See Weaver v. Jones,
260 Ga. 493, 493 (1) (396 SE2d 890) (1990) (“A declaratory judgment is an
appropriate means of ascertaining one’s rights and duties under a contract and decree
of divorce.”) (citation and punctuation omitted). “An action for a declaratory
judgment . . . may be used to clarify the meaning or application of a previously
existing court order.” Merchant Law Firm, P.C. v. Emerson, 301 Ga. 609, 616 (2) (b)
(800 SE2d 557) (2017) (citation and punctuation omitted).
“A trial court’s findings of fact after a declaratory judgment hearing are
analogous to a jury verdict and will not be interfered with if there is any evidence to
support them. However, we review the trial court’s conclusions of law de novo.”
Strange v. Towns, 330 Ga. App. 876, 876 (769 SE2d 604) (2015) (citation and
punctuation omitted).
Here, the mother sought a declaratory judgment ruling that the “summer
vacation weeks” parenting plan language required the father to select consecutive
weeks, not daily increments, for his summer vacation parenting time. The father
argues that a declaratory judgment was not a proper remedy in this case because no
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actual controversy existed. According to the father, the language of the parenting plan
was not in dispute – “it says what it says.” However, as detailed above, the father
initially contended that the language in the “summer vacation weeks” provision did
not require him to select his summer visitation in a consecutive two-week block, but,
rather, it permitted him to select up to 14 random days during the summer. Although
the father later agreed with the mother’s interpretation of the “summer vacation
weeks” language requiring him to select two consecutive weeks and repeatedly
indicated he did not contest the mother’s motion for declaratory judgment, even after
that concession, the father selected nine days or two days (depending on whether
camp was cancelled) rather than a two-week, consecutive, uninterrupted block for the
summer of 2020. He also continued to emphasize to the trial court the fact that the
mother had not always selected consecutive weeks during the summer.
In light of the father’s actions demonstrating that he did not agree with the
mother’s interpretation of the “summer vacation weeks” language in the parenting
plan, an actual controversy existed, and the mother was entitled to seek a declaratory
judgment to ascertain her rights under the divorce decree and the “summer vacation
weeks” provision of the parenting plan incorporated in that decree. Hardman v.
Hardman, 295 Ga. 732, 736 (3) (a) (763 SE2d 861) (2014).
13
In addition, the trial court’s ultimate conclusion that the “summer vacation
weeks” provision requires something completely different than what the mother
asserted (and the father claimed not to contest) is evidence that the mother’s action
presented a justiciable controversy. Despite the father’s admission that he did not
contest the mother’s motion for declaratory judgment, the trial court denied the
mother’s motion and ruled that the parenting plan language permits each party to
select “up to” two consecutive weeks of parenting time with the children during the
summer, with no obligation that a parent select parenting time in weeks rather than
days. We conclude that the trial court erroneously interpreted the plain and
unambiguous language of the “summer vacation weeks” provision in the parenting
plan.
The meaning of [an agreement or parenting plan] incorporated
into a divorce decree is determined according to the usual rules of
contract construction, and the cardinal rule thereof is to determine the
intent of the parties. Construction of a contract by the court involves
three steps. First, if no ambiguity appears, the trial court enforces the
contract according to its terms irrespective of all technical or arbitrary
rules of construction. Secondly, if ambiguity does appear, the existence
or nonexistence of an ambiguity is a question of law for the court.
Finally, a jury question arises only when there appears to be an
ambiguity in the contract which cannot be negated by the court’s
application of the statutory rules of construction.
Frier v. Frier, 303 Ga. App. 20, 21 (692 SE2d 667) (2010) (citation omitted).
14
As noted above, the relevant language of the parenting plan “summer vacation
weeks” provision is as follows: “Each parent shall be entitled to two consecutive
weeks of uninterrupted parenting time with the minor children during the children’s
summer vacation from school.” We discern no ambiguity in this language.
“Ambiguity in a contract is defined as duplicity, indistinctness, or an uncertainty of
meaning or expression.” Frier, 303 Ga. App. at 21 (citation and punctuation omitted).
Giving effect to the plain meaning of the “summer vacation weeks” language in the
parenting plan, we conclude that the provision provides that each parent may select
two consecutive weeks of uninterrupted parenting time during the children’s summer
vacation. The question in this case is whether the language in the parenting plan is
sufficiently broad to give each parent, as found by the trial court, “up to” 14
additional days of visitation in the summer, which can be selected non-consecutively.
We conclude that it is not.
The parenting plan provides for joint custody and visitation throughout the
year. The plan does not alter the custody and visitation provisions in the summer
months, except for providing that a party may select “two consecutive weeks of
uninterrupted parenting time with the minor children during the children’s summer
vacation from school.” Nothing in the parenting plan or the “summer vacation weeks”
15
provision obligates each parent to take their two consecutive, uninterrupted weeks,
but neither does anything in the parenting plan or “summer vacation weeks” provision
entitle each parent, as found by the trial court, “up to” 14 additional days of parenting
time during summer vacation over and above the normal parenting schedule, instead
of two consecutive weeks of uninterrupted parenting time. We agree with the mother
that the trial court’s interpretation – essentially permitting the father to take 14
additional days of parenting time spread throughout the summer – not only potentially
forecloses the mother’s opportunity to select two consecutive weeks of uninterrupted
time during the children’s summer vacation, but also defeats the intent of the
parenting plan: to allow each parent two weeks of uninterrupted time during which
to take a vacation or otherwise spend time with the children and not worry about the
normal custody and visitation schedule.
Moreover, if we were to read the “summer vacation weeks” language in the
parenting plan as the father and the trial court suggest, it would render the phrase
“two consecutive weeks” and the word “uninterrupted” meaningless. “It is a cardinal
rule of contract construction that a court should, if possible, construe a contract so as
not to render any of its provisions meaningless and in a manner that gives effect to
16
all of the contractual terms.” Forsyth County v. Waterspace Svcs., LLC, 303 Ga. App.
623, 631 (2) (a) (694 SE2d 102) (2010) (citation and punctuation omitted).
In fact, this Court previously has found similar language in a parenting plan
clear and unambiguous. See Park-Poaps v. Poaps, 351 Ga. App. 856, 860 (1) (833
SE2d 554) (2019). In Park-Poaps, the mother informed the father that she wanted to
take the children out of the country during a two-week period, and the father
responded that he was exercising his right under the parenting plan to select the same
two-week period as his two weeks of parenting time during the summer. Id. at 859-
860 (1). This Court held that “the father was entitled to select two consecutive weeks
of summer vacation with the children . . . and a party is entitled to rely on the plain
terms of a court order until such provisions are modified by the court[.]” Id. at 860
(1) (citation and punctuation omitted).
The father asserts that this Court should affirm the trial court’s denial of the
mother’s motion for declaratory judgment as “right for any reason” because the father
stated he did not contest the motion. According to the father, the trial court was
obligated to deny the motion, as it did, and the reason for its denial is irrelevant. Not
only does this argument fail because, as stated above, we find that a justiciable
controversy existed regarding the parenting plan language, but the father’s argument
17
neglects the fact that the trial court issued a ruling erroneously interpreting the
“summer vacation weeks” language. It is well established that the right for any reason
rule does not apply because “[w]here it is apparent that a trial court’s judgment rests
on an erroneous legal theory, an appellate court cannot affirm.” Nissan North
America, Inc. v. Walker-Jones Nissan, LLC, 345 Ga. App. 447, 455 (1) (812 SE2d
130) (2018) (citation omitted).
The father also appears to argue that the trial court’s order can be construed as
a modification of the parenting plan. According to the father, the trial court possessed
authority to modify the parenting plan because the mother brought her motion for
declaratory judgment at the same time she filed a modification action. Pretermitting
whether the trial court could properly modify the parenting plan under the
circumstances presented in this case, it is clear from the trial court’s order that the
court was merely interpreting, not modifying, the “summer vacation weeks” language.
The trial court’s denial of the mother’s request for declaratory judgment is
hereby reversed.
2. The mother next asserts that the trial court abused its discretion in awarding
attorney fees to the father under both OCGA §§ 9-15-14 (b) and 19-9-3 (g) based on
its erroneous ruling regarding the motion for declaratory judgment. We agree.
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“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.” Cothran v.
Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007) (citation omitted). Here, the
father sought, and the trial court awarded, attorney fees under both OCGA §§ 9-15-14
(b) and 19-9-3 (g). We turn first to the award under OCGA § 9-15-14 (b).
(a) OCGA § 9-15-14 (b). Pursuant to OCGA § 9-15-14 (b), a trial court may
award attorney fees if a party “brought or defended an action, or any part thereof, that
lacked substantial justification” or “was interposed for delay or harassment,” or if a
party “unnecessarily expanded the proceeding by other improper conduct.” The
statute defines “lacked substantial justification” to mean “substantially frivolous,
substantially groundless, or substantially vexatious.” OCGA § 9-15-14 (b). We
review a fee award under OCGA § 9-15-14 (b) for an abuse of discretion. Cohen v.
Rogers, 341 Ga. App. 146, 148 (2) (798 SE2d 701) (2017). “Under an abuse of
discretion standard of review, we are to review the trial court’s legal holdings de
novo, and we uphold the trial court’s factual findings as long as they are not clearly
erroneous, which means there is some evidence in the record to support them.” Id.(citation and punctuation omitted).
19
The trial court in this case awarded $9,024.50 in attorney fees to the father
pursuant to OCGA § 9-15-14 (b), based on a finding that the mother’s pursuit of the
declaratory judgment was “substantially vexatious and/or lacking in substantial
justification.” The court explained that the father presented evidence that from August
28, 2019, through the final hearing, he incurred $9,024.50 in fees in defense of the
mother’s request for declaratory judgment, which she refused to dismiss despite his
repeated statements that he was not contesting the declaratory judgment. However,
as our discussion in Division 1 shows, the mother’s declaratory judgment action was
not substantially vexatious, it did not lack substantial justification, and the father’s
summer vacation selections indicated he did not agree with the mother’s
interpretation of the summer vacation weeks language in the parenting plan. Our
reversal of the trial court’s interpretation of the “summer vacation weeks” language
in the parenting plan shows that the mother’s pursuit of clarity was legitimate.
Accordingly, the trial court abused its discretion in awarding attorney fees under
OCGA § 9-15-14 (b), and its award under that statute is reversed. See Hardman, 295
Ga. at 739 (4) (attorney fees awarded under OCGA § 9-15-14 reversed because
declaratory judgment action did not lack substantial justification).
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(b) OCGA § 19-9-3 (g). Under OCGA § 19-9-3 (g), a trial court may award
reasonable attorney fees, expenses of litigation, and other costs associated with a
child custody action. OCGA § 19-9-3 (g) “affords wide discretion to the trial court
to award reasonable attorney fees and expenses in child custody actions to be paid by
the parties in proportions and at times determined by the judge.” Moore v.
Moore-McKinney, 297 Ga. App. 703, 712 (4) (678 SE2d 152) (2009) (citation and
punctuation omitted).
The trial court in this case awarded the father $19,260.00 in attorney fees and
litigation expenses pursuant to OCGA § 19-9-3 (g), finding that such fees were
reasonably and necessarily incurred by the father through August 27, 2019, in
defending against the mother’s “child custody and parenting time claims, primarily
in defense of the emergency hearing, and declaratory judgment.” The court’s order
indicates that the fees were warranted because the mother “pursued her request for
modification of custody, parenting time and declaratory judgment through August 27,
2019 when she notified [the father] that she wanted to dismiss the case”; the mother
did not withdraw her request for modification of custody, though she also did not
pursue it, when the father declined to dismiss his counterclaim for attorney fees; the
mother filed an emergency motion for modification of summer parenting time that
21
was denied; the mother refused to withdraw her request for declaratory judgment; and
the court had denied or was denying all of the mother’s requests for relief.
The mother argues that OCGA § 19-9-3 (g) attorney fee awards are not
authorized in a declaratory judgment action. The father does not dispute this
assertion, he merely argues that the mother has waived the argument because she
induced the alleged error when her counsel drafted the order.
Contrary to the father’s argument, the order at issue indicates that it was
“[p]repared and presented by” the father’s trial counsel. While the mother’s counsel
may have redlined, reviewed, or even suggested language for a proposed order, that
does not transform an adverse ruling into a consent judgment. See generally Rude v.
Rude, 241 Ga. 454, 455 (1) (246 SE2d 311) (1978). In Rude, the Georgia Supreme
Court noted that
[w]here a final order is “approved by” counsel for both parties in writing
. . . [i]t is not approval of the substance (result) of the order (if it were,
the right of appeal would be waived), but a showing that counsel has
seen the proposed order and agrees that it contains what the court orally
directed be included in it. Counsel’s “approval” thus is an indication of
approval of the content or form of the order rather than its substance.
22
Id. at 455 (1). Accordingly, we cannot construe the trial court’s inclusion of the
phrase “declaratory judgment” with respect to OCGA § 19-9-3 (g) attorney fees as
induced error, “surplusage” or “harmless error” as argued by the father.
Because the trial court’s order does not limit its award of OCGA § 19-9-3 (g)
attorney fees to fees incurred by the father related to sanctionable conduct by the
mother with respect to the child custody action, it is hereby vacated, and the case is
remanded for the trial court to determine the amount of attorney fees, if any, that
should be awarded to the father based solely on any sanctionable conduct by the
mother in pursuing her child custody claims. See Hardman, 295 Ga. at 740 (4).
Judgment reversed in part, vacated in part, and case remanded. Reese, P. J.,
and Markle, J., concur.
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