LISA MITCHELL ERNEST F/K/A LISA ERNEST MOFFA v. ROBERT WILLIAM MOFFA
A21A0269
| Ga. Ct. App. | Jun 15, 2021Background
- Moffa sued for divorce in July 2016; a temporary order gave him primary physical custody and limited Ernest’s parenting time (forfeiture if she tested positive for alcohol).
- A guardian ad litem was appointed in December 2017 and issued a September 21, 2018 report documenting Ernest’s significant alcohol abuse and recommending Moffa receive primary custody with supervised/conditional visitation for Ernest.
- A bench trial was specially set for Sept. 26–27, 2018; Ernest failed to appear. The court refused further continuances; Ernest’s counsel agreed to negotiate non-custodial issues off the record rather than present evidence.
- The trial court entered a final divorce decree (property division, permanent parenting plan, child support), referenced an agreement in places but did not incorporate or attach a formal settlement; later it reapportioned the guardian ad litem fee to require Ernest to pay the full final bill.
- After an evidentiary hearing, the trial court awarded Moffa attorney fees under OCGA § 9-15-14(b) for conduct that unnecessarily expanded the proceedings; Ernest appealed and the appellate court struck an affidavit she filed post-ruling from the record and affirmed.
Issues
| Issue | Ernest’s Argument | Moffa’s Argument | Held |
|---|---|---|---|
| Whether the court erred by entering a decree resolving non-custodial issues without a hearing or an enforceable settlement agreement | Trial court had no evidence on disputed non-custodial issues and no enforceable settlement existed, so decree is improper | Ernest’s counsel agreed to resolve non-custodial issues without presenting evidence; decree reflects contested resolution by the court informed by counsel’s negotiations | Affirmed — counsel chose to forego evidence; decree was a court decision informed by counsel’s negotiations, not an improperly incorporated separate agreement |
| Whether the trial court lacked authority to reapportion guardian ad litem fees after initially ordering split payment | Ernest relied on the earlier split and argues the court could not later require her to reimburse Moffa | Trial court retained authority to determine final apportionment; initial appointment reserved final allocation to the court and the case remained pending | Affirmed — OCGA §19-9-3(g) and the trial court’s continuing jurisdiction permitted reapportionment |
| Whether attorney fees under OCGA §9-15-14(b) were unsupported or improperly apportioned | Ernest contends her conduct did not warrant sanctions and fees were not limited to sanction-related work | Moffa presented evidence of sanctionable conduct (school-enrollment dispute, Ernest’s substance abuse, failure to appear) and billing records tying fees to specific sanction-related tasks | Affirmed — record supports finding of sanctionable conduct; fee award was apportioned and supported by records rather than a lump sum |
| Whether the appellate court may consider an affidavit and exhibits Ernest filed after the trial court’s rulings | Ernest says the affidavit concerns communications known to the court and should be considered | Moffa moved to strike because the material was not presented to the trial court before its rulings | Granted motion to strike — appellate courts may not consider evidence not before the trial court at the time of its rulings |
Key Cases Cited
- State v. White, 282 Ga. 859 (motion to strike post-judgment materials from appellate record)
- Givens v. Ichauway Inc., 268 Ga. 710 (appellate courts cannot consider evidence not before the trial court when it ruled)
- Dolvin v. Dolvin, 248 Ga. 439 (trial court may enter a decree in contested divorce without incorporating a settlement)
- Richardson v. Richardson, 237 Ga. 830 (trial court need not expressly reserve jurisdiction in a temporary order to later amend attorney-fee awards)
- Jarvis v. Jarvis, 291 Ga. 818 (divorce decree not final for appeal purposes until post-judgment attorney-fee order)
- Reid v. Reid, 348 Ga. App. 550 (factors supporting award under OCGA § 9-15-14(b); consideration of settlement conduct)
- Moore v. Hullander, 345 Ga. App. 568 (lump-sum or unapportioned fee awards are impermissible; must show allocation and reasonableness)
- Bagley v. Robertson, 265 Ga. 144 (trial court’s inherent authority to modify judgments while case pending)
- Sherman v. City of Atlanta, 293 Ga. 169 (attorney statements to the court are prima facie true if unchallenged)