BUTLER v. LEE
A15A1937
Court of Appeals of Georgia
March 9, 2016
336 Ga. App. 102 | 783 SE2d 704
MERCIER, Judge.
Jennifer L. Giles, for appellant. Warner, Bates, McGough, McGinnis & Portnoy, Kathy L. Portnoy, Nancy I. Jordan, for appellee.
This Court granted Margaret Butler‘s application for discretionary review of the trial court‘s order awarding attorney fees to Jenai Lee in connection with the underlying child custody and support action. Butler contends that the trial court‘s award of $25,000, made pursuant to
Butler and Lee were married in New York and underwent in vitro fertilization procedures while living there. Lee‘s eggs were fertilized with sperm from an anonymous donor and transferred to Butler to carry to term. The child was born in Georgia in 2011. Because at that time Georgia law did not recognize marriages between persons of the same sex, Lee petitioned the Superior Court of Fulton County to enter an adoption order “to confirm her status” as the child‘s mother. See
The parties later separated and, on February 18, 2013, Butler filed a petition for the court to determine child custody and support issues. In the petition, Butler sought joint legal and physical custody of the child and to be designated the child‘s primary physical custodian. Lee answered, seeking sole legal and physical custody.
The court entered a final order on child support on August 25, 2014, and entered a consent order providing for joint legal custody in October 2014.
On September 15, 2014, Butler filed a motion for attorney fees and litigation costs pursuant to
In November 2014, Butler filed a response to Lee‘s request for legal fees and litigation expenses. In the response, Butler asserted that Lee had included no legal authority or argument to support the request; stated that she (Butler) reserved the right to present evidence on the reasonableness of the fees requested; quoted
The court held a hearing regarding fees and, on January 12, 2015, ordered Lee to pay Butler $4,346 in fees pursuant to
1.
Butler argues that the trial court erred by awarding attorney fees to Lee pursuant to
The 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[.]
Thus,
What the statute provides as the means of giving proper notice is a motion for such fees filed of record by a party or some form of notice to any person potentially liable for an assessment of fees under the statute that the trial court is considering its own motion for the imposition of the sanctions made available by the statute.
We conclude that Butler received adequate notice. Specifically, in Lee‘s motion to enforce the parties’ mediated custody agreement (filed in July 2014), Lee sought attorney fees based on Butler‘s conduct as allegedly having “unnecessarily expanded] . . . the[se] proceeding[s]“; although Lee did not cite a particular statute in the motion, the quoted language is found in
It was after hearing argument on the attorney fee issue that the court issued its ruling. Under the circumstances, the record shows that Butler received sufficient notice that the court was considering imposing attorney fees and litigation expenses against her pursuant to
Alternatively, Butler contends that the trial court erred by awarding Lee $25,000 in attorney fees because the amount of the award was inconsistent with the evidence and the court‘s findings of fact, and the law prohibited the trial court from making an unapportioned or lump sum award of fees.
In its order, the trial court stated that Lee had incurred $106,000 in attorney fees, but that she was only requesting $25,000 in fees. The court concluded that the $25,000 request was “reasonable and necessary in addressing this protracted litigation.” Citing what it characterized as an unnecessary expansion of the litigation and conduct interposed for delay and harassment, the court entered against Butler an award of $25,000 pursuant to
“As we have held, in cases involving
[T]he trial court‘s award of [$25,000] may have been reasonable, but the trial court‘s order, on its face fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was [$25,000,] as opposed to any other amount.
Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72) (2013). See generally Franklin Credit Management Corp. v. Friedenberg, 275 Ga. App. 236, 242-243 (2) (d) (620 SE2d 463) (2005) (lump sum award not permitted, fee award vacated, and case remanded for additional findings, where billing records did not clearly delineate which fees were associated with the successful claim, and trial court failed to sufficiently specify the basis for the particular amount awarded). Consequently, we must vacate the order and remand the case for further action by the trial court. See Brewer, supra; Fedina, supra. On remand,
[t]he court is directed to indicate the basis for its award. If the court needs supplemental evidence to determine the amount of attorney fees [and litigation expenses] reasonably attributable to the prevailing claim, it may hold a hearing. Alternatively, if the court concludes it can make the required
determination without such evidence, by further considering the evidence already submitted, it may do so.
Franklin Credit Management Corp., supra at 243 (citations and punctuation omitted).
Judgment vacated and case remanded with direction. Andrews, P. J., and Branch, J., concur.
DECIDED MARCH 9, 2016.
MERCIER, Judge.