Merrill v. Lee, 301 Ga. 34

Background

Wife and Husband divorced in 2005; the divorce decree incorporated a settlement agreement that set Husband’s monthly child support and included an attorney-fee provision (Paragraph 28) for actions related to the agreement.
In 2015 Husband petitioned to downwardly modify his child support obligation, alleging changed circumstances (health, business decline, new dependents).
Wife’s counsel warned the modification was barred by a waiver in the agreement (Paragraph 5.C) and threatened to seek fees; Wife moved to dismiss and the trial court converted that motion to summary judgment.
The trial court granted summary judgment to Wife, denying Husband’s modification petition; Wife then moved for attorney fees under Paragraph 28 and state statutes, submitting an affidavit showing $49,610.59 in fees.
The trial court denied Wife’s fee motion without a hearing while Husband’s application for discretionary appeal was pending; the Supreme Court of Georgia granted Wife’s appeal and reversed, directing the trial court to determine reasonable fees.

Issues

Issue	Wife's Argument	Husband's Argument	Held
Does Paragraph 28 authorize awarding Wife attorney fees after Husband’s modification petition was denied?	Paragraph 28 requires the moving party to pay defending party’s reasonable fees when relief under the agreement is denied.	Paragraph 28 does not apply or should not be enforced in this case.	Yes. Paragraph 28 plainly applied; Husband’s petition sought relief "in connection with" the agreement and was denied, so Wife is entitled to fees.
Was awarding fees premature while Husband’s appeal application was pending?	Wife argued the trial court should award fees once relief was denied.	Argued fee award premature because discretionary appeal to the court was pending.	Court need not decide because Husband abandoned this argument on appeal; Supreme Court did not rely on it.
Is enforcement of Paragraph 28 against public policy?	Enforcement is consistent with parties’ freedom to contract and prior Georgia precedent permitting fee agreements in divorce/child-support contexts.	Enforcement would be contrary to public policy.	No. Court rejected public-policy challenge; parties may contract for attorney-fee recovery and cited precedent enforcing such provisions.
Should fees also be awarded under OCGA §§ 9-15-14 or 19-6-15?	Wife alternatively sought fees under these statutes.	Husband argued statutes or good-faith theories preclude fees.	Court did not reach statutory claims because contract provision required fees; remanded to quantify reasonable fees.

Key Cases Cited

Roberts v. Tharp, 286 Ga. 579 (2010) (enforced contractual attorney-fee provisions in divorce decree)
Haley v. Haley, 282 Ga. 204 (2007) (recognized enforcement of fee agreements in family-law context)
City of Gainesville v. Dodd, 275 Ga. 834 (2002) (court may affirm for any correct reason; cited regarding preservation of arguments)
Sylar v. Hodges, 250 Ga. App. 42 (2001) (no public policy bar to contracting for recovery of attorney fees)