Hoard v. Beveridge , 298 Ga. 728 ( 2016 )


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  • In the Supreme Court of Georgia
    Decided:    March 7, 2016
    S15A1685. HOARD v. BEVERIDGE.
    THOMPSON, Chief Justice.
    This appeal involves a challenge to a trial court’s award to one party in a
    divorce action of attorney fees under OCGA § 9-15-14 and OCGA § 19-6-2.
    Because we conclude the trial court made sufficient findings to sustain the full
    amount of the fee award under OCGA § 19-6-2 (a), we affirm.
    In 2009, Brett Beveridge filed an action for divorce against his wife,
    Vivian Hoard. One child was born of the marriage, and the primary issue in the
    case involved custody of the parties’ minor child. With the parties’ consent,
    therefore, the trial court appointed as custody evaluator, Dr. Carol Webb, who
    concluded both parties were fit and loving parents and recommended a joint
    custodial arrangement. After a hearing, the trial court in April 2011entered a
    temporary order granting the parties joint legal and physical custody with equal
    parenting time. In the meantime, Hoard learned that in 2006, Dr. Webb asked
    opposing counsel’s husband, then state representative Edward Lindsey, for a
    letter of recommendation for re-appointment by the governor of Georgia to a
    professional board. Believing that Dr. Webb’s request created a conflict of
    interest, Hoard throughout much of the remainder of the divorce proceedings
    filed numerous motions seeking to disqualify Dr. Webb, as well as motions to
    set aside, for new trial, for mistrial, and to amend, reopen and rehear her motions
    to disqualify, each of which was related to Hoard’s efforts to disqualify Dr.
    Webb and was denied by the trial court.1
    In October 2012, following a ten day trial, the trial court issued a final
    order granting the parties joint legal and physical custody with equal parenting
    time. The order specifically stated that the trial court did not rely on Dr. Webb’s
    report in making its custody determination but noted that the report was not
    inconsistent with the other evidence presented by the parties. Both Hoard and
    Beveridge filed cross-motions for attorney fees and expenses seeking,
    respectively, fees and expenses of $431,411.25 and $400,974.90. In an October
    1
    Dr. Webb testified that she did not recall asking for the letter of recommendation
    until she was asked about it by Hoard’s counsel at her deposition and that she did not know
    whether Mr. Lindsey actually wrote a letter until Hoard filed her first motion to disqualify,
    after the custody evaluation had been completed.
    2
    2014 order, the trial court denied Hoard’s fee motion and granted Beveridge’s
    motion, awarding him $232,114 in fees and expenses, the exact amount of all
    costs he claimed to have incurred from the date of the temporary hearing and
    after the trial court’s denial of Hoard’s first motion to disqualify Dr. Webb.
    Seeking leave to challenge the trial court’s fee award, Hoard subsequently filed
    an application for discretionary appeal which this Court granted pursuant to
    Rule 34 (4).
    1. The trial court made its fee award, without allocation, under both
    OCGA § 19-6-2 and OCGA § 9-15-14, based on its conclusion that Hoard’s
    numerous attempts to disqualify and discredit Dr. Webb unnecessarily expanded
    the litigation and that although “neither party [could] afford the extensive
    litigation and the extensive fees they incurred,” Hoard had a “superior ability to
    pay.” Hoard contends the trial court erred by failing to identify which portion
    of the fees was awarded pursuant to OCGA § 9-15-14 and which portion was
    awarded pursuant to OCGA § 19-6-2 (a). She further argues that without such
    apportionment, the award must be reversed because the trial court’s findings are
    not sufficient to independently sustain the full award under either statute. See
    Park Ridge Condo Ass’n v. Callais, 
    290 Ga. App. 875
    , 878 (660 SE2d 736)
    3
    (2008) (holding that trial court abused its discretion by failing to specify in its
    award of attorney fees and expenses which fees and expenses fell within the
    ambit of the applicable fee statute). Compare Taylor v. Taylor, 
    293 Ga. 615
    ,
    618-619 (4) (748 SE2d 873) (2013) (upholding attorney fee award that failed
    to specify which portion of the award was made pursuant to OCGA § 9-15-14
    (b) and OCGA § 19-9-3 (6) because an award of the full amount would have
    been authorized under either statute).
    We begin our analysis with OCGA § 9-15-14 (b), a statute which
    authorizes a trial court to award reasonable attorney fees upon a finding that an
    action or any part thereof “lacked substantial justification or that the action . .
    . was interposed for delay or harassment, or if it finds that an attorney or party
    unnecessarily expanded the proceeding by other improper conduct.” Here, the
    trial court concluded that Hoard’s numerous attempts to disqualify Dr. Webb
    based on her request for a letter of recommendation unnecessarily expanded the
    litigation, thus authorizing under § 9-15-14 (b) an award to Beveridge in an
    amount limited to the fees and expenses he incurred in defending against
    Hoard’s sanctionable conduct. See Hardman v. Hardman, 
    295 Ga. 732
    , 740
    (763 SE2d 861) (2014) (stating that award of attorney fees under OCGA §
    4
    9-15-14 might have been appropriate in contempt action if limited to fees party
    incurred in defending against issue improperly raised in motion for contempt);
    LabMD, Inc. v. Savera, 
    331 Ga. App. 463
    , 467 (2) (a) (771 SE2d 148) (2015)
    (trial court must limit attorney fees awarded pursuant to OCGA § 9-15-14 (b)
    to those incurred because of the sanctionable conduct); Trotter v. Summerour,
    
    273 Ga. App. 263
    , 267 (2) (614 SE2d 887) (2005) (a trial court is required to
    exclude from fee award made pursuant to OCGA § 9-15-14 any fees “unrelated
    to defending against the claims deemed frivolous”). The trial court’s order,
    however, makes no specific allocation of fees awarded pursuant to OCGA § 9-
    15-14 (b) and awards Beveridge $232,114 in fees and expenses, the same
    amount he claimed to have incurred from the date of the temporary hearing
    related to all aspects of the litigation. In fact, Beveridge’s own evidence does
    not support the conclusion that the full amount of the court’s fee award is
    sustainable under OCGA § 9-15-14 (b) inasmuch as it shows that his costs
    related to Hoard’s sanctionable conduct did not exceed $65,000. We agree then
    with Hoard’s argument that the trial court’s full award cannot be upheld under
    this section of the Georgia Code.
    2. If OCGA § 9-15-14 was the only basis stated for the fee award, we
    5
    might at this juncture simply vacate the award and remand to the trial court. See
    Hardman, 295 Ga. at 740. Vacation and remand are unwarranted in this case,
    however, because the full amount of the trial court’s award can be independently
    sustained under OCGA § 19-6-2 (a). See Taylor, 
    293 Ga. at 618-619
    . That
    section "authorizes a trial court in a divorce action to exercise its sound
    discretion and, after considering the financial circumstances of the parties, to
    award attorney fees as necessary to ensure the effective representation of both
    parties." Simmons v. Simmons, 
    288 Ga. 670
    , 673 (706 SE2d 456) (2011). A
    trial court's decision "[w]hether to award attorney fees . . . pursuant to OCGA
    § 19-6-2 is a matter within the discretion of the trial court, and the exercise of
    that discretion will not be reversed unless manifestly or flagrantly abused."
    Mongerson v. Mongerson, 
    285 Ga. 554
    , 558-559 (678 SE2d 891) (2009),
    overruled on other grounds, Simmons, 288 Ga. at 672, n.4.
    The record in this case shows that evidence was presented at the motions
    hearing regarding the parties’ financial circumstances, including evidence of
    their income, their respective equity interests in real property, and Beveridge’s
    obligation under the final decree to pay for the cost of their child’s private
    6
    school education.2 The trial court also had before it evidence that Hoard during
    the divorce proceedings liquidated marital assets to pay for a portion of her
    attorney fees while Beveridge used his own non-marital assets and obtained a
    loan against his 401 (k) to pay for a portion of his fees.3 The record and fee
    hearing transcript thus show that the trial court carefully considered the parties’
    relative financial positions, their obligations under the final decree, and the
    substantial costs incurred by both parties, and awarded Beveridge substantially
    less than the total amount of fees he claimed to have incurred in the litigation.
    Based on this record, we cannot say that the trial court abused its discretion in
    making its award which ensured effective representation of both spouses.4 See
    2
    The trial court found that Beveridge earned approximately $19,000.00 a month and
    Hoard earned approximately $20,000.00 per month. With regard to Hoard’s “superior ability
    to pay,” the trial court noted, in addition to the slight difference in income, that Beveridge
    was responsible under the final decree to pay $2,000.00 per month toward the cost of the
    child’s private school education and the fact Hoard had $224,300.00 in equity in her
    residence while Beveridge, who had moved out of the marital home, had only $29,000.00 in
    equity in his residence.
    3
    Contrary to Hoard’s argument, the fact that Beveridge was able to pay for a portion
    of his fee obligation during the course of this lengthy and contentious divorce proceeding did
    not deprive the trial court of its statutory authority to award fees under OCGA § 19-6-2.
    4
    We find no merit in Hoard’s argument that the trial court abused its discretion by
    relying on financial information presented during the October 2012 final hearing. Hoard
    failed to respond to Beveridge’s notice to produce more current financial information and
    failed to produce at the fee hearing evidence of her then-current financial status, despite
    7
    Simmons, 288 Ga. at 673-674 (finding no abuse of discretion where record
    showed trial court considered the parties’ relative financial positions and granted
    fees to wife because she would be primary physical custodian); Patel v. Patel,
    
    285 Ga. 391
    , 393 (4) (677 SE2d 114) (2009) (finding no abuse of discretion in
    trial court’s decision to deny wife’s claim for attorney fees under OCGA § 19-6-
    2 where the trial court found both parties used marital property to pay their
    attorney fees); Johnson v. Johnson, 
    284 Ga. 366
    , 368 (3) (667 SE2d 350) (2008)
    (affirming award of attorney fees under OCGA § 19-6-2 based on trial court’s
    “broad discretion to set the amount and terms of payment for any award of
    attorneys’ fees.”); Brady v. Brady, 
    228 Ga. 617
     (1) (187 SE2d 258) (1972)
    (discretion of trial court as to amount of fees awarded under OCGA § 19-6-2
    will not be disturbed absent an abuse of discretion). Accordingly, the trial
    court’s full fee award can be sustained under OCGA § 19-6-2 and we will not
    disturb this award on appeal. See Taylor, 
    293 Ga. at 618-619
     (4).
    We find no merit in Hoard’s argument that the trial court’s award under
    being directed by the trial court’s rule nisi to do so, leaving the trial court no choice but to
    rule on the fee motions based on the evidence previously presented. Moreover, unlike in
    Thedieck v. Thedieck, 
    220 Ga. App. 764
    , 768 (470 SE2d 265) (1996), there was not in this
    case even the suggestion of a substantial change in the parties’ financial circumstances.
    8
    OCGA § 19-6-2 was punitive or improperly predicated on a finding that she
    engaged in misconduct. Although the trial court discusses in its fee order the
    procedural history of the parties’ litigation and clearly concludes that Hoard’s
    “numerous attempts to disqualify and discredit the custody evaluator
    unnecessarily expanded th[e] litigation,” nothing in the language of the order
    suggests these factors played any part in its decision to award fees to Beveridge
    pursuant to OCGA § 19-6-2. Compare Weaver v. Weaver, 
    263 Ga. 56
     (428
    SE2d 79) (1993) (reversing fee award under OCGA § 19-6-2 where decision to
    award fees to one party was based on other party’s refusal to settle dispute). In
    fact, the trial court’s discussion of its fee award as it explicitly relates to OCGA
    § 19-6-2 makes no reference to Hoard’s conduct but properly focuses on the
    parties’ financial circumstances and ability to afford the litigation.
    Judgment affirmed. All the Justices concur.
    9
    

Document Info

Docket Number: S15A1685

Citation Numbers: 298 Ga. 728, 783 S.E.2d 629

Filed Date: 3/7/2016

Precedential Status: Precedential

Modified Date: 1/12/2023