Brown v. Brown
| Decision Date | 13 April 2021 |
| Docket Number | A21A0122 |
| Citation | 359 Ga.App. 511,857 S.E.2d 505 |
| Parties | BROWN v. BROWN. |
| Court | Georgia Court of Appeals |
Warner Bates, J. Matthew Anthony, Barry B. McGough, Andrew B. McClintock, for appellant.
Marple Rubin Family Law, Katie K. Leonard; Hill Macdonald, Brad E. Macdonald ; Boyd Collar Nolen Tuggle & Roddenbery, Robert D. Boyd, for appellee.
Phipps, Senior Appellate Judge.
Pamela Gadams Brown (the "mother") appeals from the trial court's order denying her request for declaratory judgment and awarding Brent Murdock Brown (the "father") attorney fees under both OCGA §§ 9-15-14 and 19-9-3 (g).1 Because the trial court erred in denying the mother's request for declaratory judgment, we reverse the trial court's order in that regard, and we reverse the trial court's award of OCGA § 9-15-14 (b) attorney fees based on the mother's pursuit of the declaratory judgment action. We further find that the trial court erred in its award of attorney fees under OCGA § 19-9-3 (g), and we vacate that award and remand the case for the court to reconsider its attorney fee award under that statute.
The record shows that the mother and the father were previously married and have two children together, who were born in 2008 and 2011. The parties divorced in 2015 pursuant to a final judgment and decree of divorce. The divorce decree awarded joint legal and physical custody of the children to the parties, and provided that they would share parenting time under a parenting plan, which was incorporated into the decree. The parenting plan included a provision for "SUMMER VACATION WEEKS" which stated:
Each parent shall be entitled to two consecutive weeks of uninterrupted parenting time with the minor children during the children's summer vacation from school. Father shall have the first choice of dates for his summer vacation with the children in all odd-numbered years, with Mother having the first choice of dates in all even-numbered years. The party with the first choice of dates shall notify the other party of his or her selection of dates by April 1st of each year, while the party with the second choice of dates shall notify the other party of his or her selection of dates by April 15th of each year.
The mother admits that the parties – by mutual agreement – deviated from the parenting plan by taking non-consecutive summer time from 2015 through 2018. However, in early 2019, the mother told the father that she intended to take the children on a summer trip to Africa and requested that he select his two weeks pursuant to the parenting plan for planning purposes. When the parties could not resolve the issue, the mother filed a "petition for modification of child custody and visitation[,] and motion for declaratory judgment."2 Regarding the motion for declaratory judgment, the mother asserted that in 2017, the last time the father selected his summer vacation weeks before her under the parenting plan, he selected six separate or non-consecutive days throughout the summer, which was inconsistent with the parenting plan directive for each party to select two consecutive weeks of uninterrupted parenting time. The mother requested that the trial court (a) "admonish Father that he must pick weeks, not days, which is consistent with the spirit and language of the Parenting Plan," and (b) "interpret and emphasize that the Summer Vacation Weeks of the Parenting Plan be taken in weekly increments, not daily increments." The mother also requested attorney fees.
The father filed an answer opposing all of the mother's requests for relief. In response to the mother's motion for declaratory judgment, the father asserted that the parenting plan offers the parties "two consecutive weeks" with the children during the summer without any further definition of how those weeks are allocated or exercised, which was demonstrated by the fact that the parties had never exercised two "consecutive" weeks. The father counterclaimed for attorney fees and litigation expenses pursuant to OCGA §§ 9-15-14 and 19-9-3, asserting that while he had made efforts to resolve the issue with the mother, she had engaged in abusive litigation tactics, pursued unreasonable positions in litigation, and refused to participate in cooperative co-parenting efforts and settlement discussions.
The mother filed a request for emergency relief seeking a temporary modification of summer visitation to enable her to take the children on the trip to Africa, but the trial court denied the motion. The May 16, 2019 order, which was prepared by the father's attorney, specifically noted that the summer vacation provision of the parenting plan was "currently in dispute."
On April 29, 2020, the trial court held a final hearing on the mother's request for declaratory judgment. At the hearing, the mother's counsel stated that she would be introducing evidence regarding the declaratory judgment, to which the court responded, The mother's counsel agreed, but stated that she was going to put up evidence "to show the judge what the issue is with the declaratory judgment," in defense of the father's request for attorney fees, and in support of the mother's request for attorney fees.
According to the mother, although the father said that he did not dispute the language of the parenting plan, his actions showed otherwise, and she still needed the trial court to rule on her declaratory judgment action and clarify that the summer vacation weeks parenting plan language required the parties to select two consecutive, uninterrupted weeks during the summer. The mother testified that she sought declaratory judgment because she was unable to plan summer trips because the father was not being flexible; he believed that he did not have to take two consecutive summer weeks, and he wanted the children to participate in swimming for five weeks every summer. The mother told the trial court,
The father and his counsel asserted that they did not contest the parenting plan language, had told the mother repeatedly that they did not contest the language, and yet the mother still pursued her action. The father's counsel specifically stated, However, both the father and his counsel argued that the parties had never followed the parenting plan language until the mother filed her declaratory judgment action. And, the father repeatedly testified that he selected his summer dates so the children could participate in swimming and other activities.
Evidence presented at the hearing showed that in March 2017, after the father selected six separate days throughout the summer and stated that he would select his remaining eight days after the mother selected her days, the mother insisted that the "summer vacation weeks" provision of the parenting plan required the parties to select two weeks of consecutive time with the children; the plan did not allow the parties to choose random days. She requested that the father "please pick your weeks, and I will still take July 22nd-29th and then after you pick your two weeks, I will pick another." The father replied that he disagreed with the mother's view of the plan, and he would not change his selections.3 On April 9, 2018, the father sent an e-mail to the mother stating that he had not received the mother's summer dates, which had been due on April 1, and selecting six separate summer days and a week in early August.
The father's counsel noted in a February 2019 letter that the father would agree to language that the summer parenting plan must be exercised in seven-day periods if the mother agreed to remove language from the plan that the father could not schedule extracurricular activities during her parenting time. In March 2019, the father notified the mother that he was selecting three days in May, four days in July, and a week in August. The mother's counsel informed the father's counsel that the father's selections were "NOT acceptable" under the parenting plan, and requested that the father select two consecutive weeks of summer parenting time. The father's counsel replied: "We disagree with your interpretation of the summer schedule outlined in the Parenting Plan, as the parties have never exercise[d] two consecutive weeks in a row with the children." The e-mail noted once again that although the father did not agree with the mother's interpretation of the Parenting Plan, he would select a seven consecutive day period if the mother agreed to allow the children to participate in swim meets.
In April 2019, the mother sent the father an e-mail in which she offered July 22-August 5 or July 5-18 as her two consecutive summer weeks with the children. The mother's attorney also sent a letter attempting to settle the issues, but the parties could not agree on terms. In fact, the father was only willing to agree that the summer vacation weeks would be exercised in seven-day periods. The father's attorney sent a letter proposing that each party have an additional week of summer vacation, raising each party's uninterrupted summer weeks from two weeks to three weeks, and that each party could exercise two of the weeks consecutively. The letter further stated that the father was willing to let the mother have first choice of weeks every summer as long as the mother agreed that the children could participate with the father in the five swim meets during the summer.
On August 27, 2019, the mother's counsel sent the father's counsel an e-mail stating that, according to the mother, the parties ...
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