Hoard
v. Beveridge, S15A1685
Supreme Court of
Georgia, Civil Case (3/7/2016, 3/11/2016)
ATTORNEYS FEES:
Expenses of Litigation
Text: Thompson, Hugh
P., 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 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) (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 § 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 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 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 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 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.
1Dr. 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.
2The 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.
3Contrary 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.
4We 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 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.
Trial Judge: Bensonetta
Tipton Lane, Fulton Superior Court.
Attorneys: Michael J.
Bowers and Joshua M. Moore (Balch & Bingham LLP), Atlanta, for appellant.
Elizabeth G. Lindsey (Davis, Matthews & Quigley PC), Atlanta, for
appellee.
Regina Edwards selected again to SuperLawyers Rising Stars for 2016.