Merrill v. Lee, 301 Ga. 34

Michelle Merrill (Wife) and Gary Lee (Husband) divorced in 2005; the divorce decree incorporated a settlement agreement that set Husband’s child support and included fee-shifting provisions.
In 2015 Husband petitioned to downwardly modify child support, citing health, business decline, and new family obligations.
Wife notified Husband that Paragraph 5.C of the settlement agreement waived his right to modify support and warned she would seek fees; she then moved to dismiss. The trial court converted the motion to summary judgment and denied Husband’s modification petition.
Wife moved for attorney fees under Paragraph 28 of the settlement agreement (and also cited statutes), attaching an affidavit showing $49,610.59 in fees incurred defending the modification action.
The trial court summarily denied Wife’s fee motion while Husband’s application for discretionary appeal was pending in the Georgia Supreme Court; the Supreme Court ultimately denied Husband’s application and later granted Wife’s appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Paragraph 28 of the settlement agreement requires Husband to pay Wife’s fees after his modification petition was denied	Merrill: Paragraph 28 mandates that a moving party who seeks relief under the agreement and is denied must pay the defending party’s reasonable attorneys’ fees	Lee: Fee award was premature while appeal was pending; later argued enforcement would violate public policy	Held: Yes — Paragraph 28 applies; trial court erred in denying fees; remanded to determine reasonable amount
Whether public policy/prohibition prevents enforcement of the fee provision	Merrill: Contractual fee-shifting is enforceable	Lee: Enforcement would be contrary to public policy	Held: Rejected — no statute or policy bars contractual fee recovery in this context
Whether the trial court could refuse to enforce the parties’ fee arrangement in the divorce decree	Merrill: Court must enforce incorporated settlement terms	Lee: (argued below only prematurity)	Held: Court lacked authority to alter the fee arrangement incorporated into the decree; must enforce it
Whether statutory fee bases (OCGA §§ 9-15-14, 19-6-15) required separate analysis	Merrill: Also argued entitlement under statutes	Lee: Argued good-faith novel legal theory bars sanction under § 9-15-14; § 19-6-15 denial urged as contrary to justice	Held: Court did not reach statutory grounds because contract-based entitlement controlled; remand to determine amount under contract

Roberts v. Tharp, 286 Ga. 579 (contractual fee provisions in divorce-related agreements enforceable)
Haley v. Haley, 282 Ga. 204 (Georgia Supreme Court enforces fee agreements incorporated in divorce decrees)
Sylar v. Hodges, 250 Ga. App. 42 (contracting for recovery of attorney fees not against public policy)
City of Gainesville v. Dodd, 275 Ga. 834 (party may urge alternative grounds on appeal for affirming judgment)