Kim v. Han
339 Ga. App. 886
| Ga. Ct. App. | 2016Background
- Kim and Han, married in South Korea, owned a Johns Creek house; Han later refinanced the mortgage in her name and returned to Korea in 2011.
- Seoul Family Court entered a final divorce decree in 2013; the parties dispute whether that decree addressed the Johns Creek property.
- Han initiated a magistrate dispossessory; parties entered a consent decree, but Kim filed in superior court (Aug 28, 2014) seeking division of marital property and an emergency injunction to stay eviction.
- Trial court temporarily stayed the writ; Han moved to set aside for lack of notice and sought fees under OCGA § 13-6-11; Kim did not appear at the September 12, 2014 hearing. The court set aside the order and enforced eviction, awarding fees under § 13-6-11.
- Han later moved for sanctions/fees under OCGA § 9-15-14; the trial court (Jan 16, 2015) vacated the § 13-6-11 award but granted fees and some travel/translation costs under § 9-15-14. Kim appealed.
Issues
| Issue | Kim's Argument | Han's Argument | Held |
|---|---|---|---|
| Timeliness of § 9-15-14 fee motion | Motion filed Nov 5, 2014 was untimely because a final order issued Sept 12, 2014 (more than 45 days) | Motion was filed during the action and before final disposition (trial court later entered order Jan 16, 2015) so it was timely under the statute | Motion was timely: under § 9-15-14(e) fees may be requested any time during action and not later than 45 days after final disposition; Jan 16, 2015 was the final disposition here |
| Sufficiency of findings supporting § 9-15-14 award | Trial court failed to make express findings identifying abusive conduct, statute subsection, and apportionment of fees | Trial court’s language tracked § 9-15-14(b) and found claims “lacked substantial justification” and were unnecessary | Fee award vacated and remanded: bare conclusions insufficient; court must state abusive conduct, specify (a) or (b) (or both), and apportion fees to sanctionable conduct |
| Recoverability and reasonableness of particular expenses (e.g., airline, rental car) | Travel and some expenses were improperly awarded or not shown reasonable/necessary | Han sought travel, interpreter, and attorney fees as litigation expenses incurred defending the superior court action | Court questioned recoverability of travel under § 9-15-14 (noting authority that airline tickets are not recoverable) but did not decide; remanded for reconsideration on findings and apportionment |
Key Cases Cited
- Fairburn Banking Co. v. Gafford, 263 Ga. 792 (1994) (defining “final disposition” for § 9-15-14 timeliness)
- Marshall v. Ricmar, Inc., 215 Ga. App. 470 (1994) (timeliness under prior § 9-15-14 language)
- Williams v. Becker, 294 Ga. 411 (2014) (trial court must make express findings re abusive conduct and statutory subsection for § 9-15-14 awards)
- Ellis v. Caldwell, 290 Ga. 336 (2012) (court’s language can indicate which § 9-15-14 subsection was applied)
- Razavi v. Merchant, 330 Ga. App. 407 (2014) (conclusory finding that complaint lacked substantial justification is insufficient)
- Note Purchase Co. of Georgia, LLC v. Brenda Lee Strickland Realty, Inc., 288 Ga. App. 594 (2007) (same)
- Bankston v. Warbington, 319 Ga. App. 821 (2013) (airline tickets not recoverable as litigation expenses)
- Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208 (2011) (fees must be limited to those incurred because of sanctionable conduct; lump-sum awards not permitted)
- Williams v. Warren, 322 Ga. App. 599 (2013) (trial court findings tracking statutory language may show subsection applied)