Paige Bankston appeals from the trial court’s order entered pursuant to OCGA § 9-15-14 (b) awarding: (1) attorney fees incurred by Timothy Warbington in response to Bankston’s motion asking the court to hold Warbington in contempt for failure to comply with visitation provisions of a child custody decree, and (2) other expenses incurred by Warbington as a result of the visitation dispute. The court denied the contempt motion and subsequently considered Warbington’s request for the award of attorney fees and expenses. Finding pursuant to OCGA § 9-15-14 (b) that the contempt motion lacked substantial justification, was interposed for harassment, and unnecessarily expanded the proceedings, the trial court awarded Warbington $2,832.50 in attorney fees incurred in response to the motion, plus $1,468 for airline tickets purchased as a result of the visitation dispute. We find no abuse of discretion and affirm the trial court’s decision that Warbington was entitled to the award of attorney fees pursuant to OCGA § 9-15-14 (b). For the reasons that follow, we vacate the court’s award of attorney fees in the amount of $2,832.50 and remand for reconsideration of the amount, and reverse the court’s award of $1,468 to Warbington for the expense of airline tickets purchased as a result of the visitation dispute.
1. The parties submitted the motion for attorney fees to the trial court by letter briefs. We find no merit to Bankston’s contention that the court was required to dismiss the motion because Warbington’s letter brief was not filed within ten days as ordered by the court. The court’s order awarding attorney fees pursuant to OCGA § 9-15-14 (b) found that Warbington’s letter brief was timely delivered to the judge’s chambers, but not filed with the Clerk until a few days later “because the Clerk refused to accept submissions made in the letter brief format directed by the order.” The trial court did not err in refusing to dismiss the claim.
Bankston also contends that the trial court erred by awarding attorney fees in the amount of $2,832.50 because the court failed to hold a hearing and because there was a lack of evidence establishing the actual attorney fees incurred. Generally, before an award of attorney fees is made against a party under OCGA § 9-15-14 (b), that party “is entitled to an evidentiary hearing upon due notice permitting him an opportunity to confront and challenge the value and the need for legal services claimed.” (Citation and punctuation omitted.) Ellis v. Caldwell, 290 Ga. 336, 340 (720 SE2d 628) (2012). But a party may waive the right to this hearing. Id. The record shows that, when the trial court asked for letter briefs on the issue of sanctions under OCGA § 9-15-14 (b), it also asked the parties to inform the court whether or not a hearing was waived. Bankston informed the court in her letter brief that she did not waive a hearing. But the court’s subsequent order considering Bankston’s letter brief and awarding sanctions notes that, after filing the brief, Bankston agreed that the court could consider the motion for attorney fees without a hearing. Accordingly, we find that Bankston waived the right to an evidentiary hearing.
Nevertheless, Bankston’s letter brief opposing sanctions objected that there was no affidavit or other evidence in the record showing the
3. As part of its award of sanctions pursuant to OCGA § 9-15-14 (b), the trial court also awarded Warbington expenses he incurred by the purchase of airline tickets as a result of the visitation dispute with Bankston. This was not an expense of litigation recoverable in a sanction award pursuant to OCGA § 9-15-14 (b). Accordingly, the ticket expense award of $1,468 is reversed.
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.
Under OCGA § 9-15-14 (b),
[t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.