799 S.E.2d 169 (Ga. 2017), S17A0630, Merrill v. Lee
|Citation:||799 S.E.2d 169, 301 Ga. 34|
|Opinion Judge:||Nahmias, Justice.|
|Party Name:||MERRILL v. LEE|
|Attorney:||Davis, Matthews & Quigley, Elizabeth G. Lindsey, John A. Sugg, for appellant. Bogart, Hurst & Ference, Jeffrey B. Bogart, Susan A. Hurst; Lawler Green Prinz & Gleklen, Adam M. Gleklen, for appellee.|
|Case Date:||April 17, 2017|
|Court:||Supreme Court of Georgia|
Wife Michelle Merrill appealed a trial court order denying her motion for attorney fees, which was based on the unsuccessful petition by husband Gary Lee to modify his child support obligation under the parties’ divorce decree. Because the settlement agreement incorporated into the divorce decree required a party who unsuccessfully seeks relief in connection with the agreement to pay the... (see full summary)
This opinion is uncorrected and subject to revision by the court.
Judgment reversed and case remanded with direction.
NAHMIAS, Justice. All the Justices concur.
Michelle Merrill (Wife) appeals from the trial court's order denying her motion for attorney fees, which was based on the unsuccessful petition by Gary Lee (Husband) to modify his child support obligation under the parties' divorce decree. Because the settlement agreement incorporated into the divorce decree requires a party who unsuccessfully seeks relief in connection with the agreement to pay the defending party's reasonable attorney fees, we reverse the trial court's order and remand with direction to determine the amount of fees to which Wife is entitled.
1. Wife and Husband were divorced on October 11, 2005. The divorce decree incorporated the parties' settlement agreement resolving all issues of the divorce. Ten years later, on November 5, 2015, Husband filed a petition for downward modification of child support, asserting that he was unable to pay the amount required by the settlement agreement due to his health problems, his commercial real estate business's decline, and his obligation to support his new wife and three children.
On December 1, 2015, Wife's attorney sent a letter to Husband's attorney stating that his modification action was barred by Paragraph 5.0 of the settlement agreement and warning that if Husband persisted with his claim, Wife would seek attorney fees. Paragraph 5.0 says, in relevant part, that " Husband specifically waives his statutory right to modify his monthly child support obligation below the amount (including annual escalation) set forth in [the agreement]." Husband did not withdraw his modification action, so Wife filed a motion to dismiss it on December 14. On March 7, 2016, the trial court converted the motion to dismiss to a motion for summary judgment in order to consider the settlement agreement, and on April 8, the court granted summary judgment to Wife and denied...
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