Cothran v. Mehosky, No. A07A1746.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBlackburn
Citation649 S.E.2d 838,286 Ga. App. 640
PartiesCOTHRAN v. MEHOSKY.
Docket NumberNo. A07A1746.
Decision Date16 July 2007
286 Ga. App. 640
649 S.E.2d 838
COTHRAN
v.
MEHOSKY.
No. A07A1746.
Court of Appeals of Georgia.
July 16, 2007.

[649 S.E.2d 839]

William J. Mason, Atlanta, for appellant.

Kessler & Schwarz, Louis J. Tesser, Atlanta, for appellee.

BLACKBURN, Presiding Judge.


In this action to set aside paternity and to modify child support, we granted discretionary appeal to review the trial court's award of attorney fees to Stanley Mehosky for his counsel's contempt-hearing preparation after his ex-wife failed to comply with an order for DNA testing. As the statute relied upon by the trial court does not authorize an award of attorney fees in this case, we reverse.

The undisputed evidence shows that Mehosky and Victoria Cothran were divorced on July 15, 1997. In the final decree, Mehosky acknowledged paternity of the two minor children born during the marriage (a daughter and a son) and was ordered to pay child support. On November 30, 2005, he filed an action to set aside the finding of paternity and to modify the child support award, claiming that he was not the legitimate biological father of the son. When Cothran contested these claims, Mehosky obtained an order from the trial court requiring Cothran to submit to DNA paternity testing. She refused to comply, and Mehosky moved for contempt. Prior to the court's ruling at a December 5, 2006 contempt hearing, the parties entered into an agreement, in which Cothran conceded Mehosky was not the biological father of the son, and in which Mehosky's child support obligation was modified. The sole issue remaining before the trial court was Mehosky's request for attorney fees.

Although it declined to award attorney fees for the entire cost of the action, the court awarded fees to Mehosky, pursuant to OCGA § 19-6-2, for his counsel's work performed in preparation for the contempt hearing. The court reasoned that OCGA § 19-6-2(a) authorized attorney fees in "alimony, divorce and alimony, or contempt proceedings," and thus governed the December 5 contempt hearing.1 The court rejected Mehosky's claim of 6,071.50 worth of work by his [286 Ga. App. 641] attorney performed for the contempt

649 S.E.2d 840

hearing, and awarded 3,705 as "reasonable compensation."

Cothran appeals, contending that OCGA § 19-6-2 does not authorize attorney fees in these circumstances, and that therefore the trial court's award was in error. We agree.

Where, as here, the issue is a question of law, we apply the plain legal error standard of review and owe no deference to the trial court's ruling. Suarez v. Halbert.2

"As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract." Suarez v. Halbert, supra, 246 Ga.App. at 824, 543 S.E.2d 733. OCGA § 19-6-2(a) authorizes attorney fees against either party, upon consideration of their financial circumstances, where "the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case...." An award of attorney fees under the statute is not predicated on the wrongdoing of either party. Cason v. Cason.3 Rather, the General Assembly has provided for the award of attorney fees particularly in alimony and divorce cases so as to "ensure effective representation of both spouses so that all issues can be fully and fairly resolved." Johnson v. Johnson.4 Georgia courts have thus approved...

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19 practice notes
  • Moore v. Hullander, A18A0592
    • United States
    • United States Court of Appeals (Georgia)
    • April 25, 2018
    ...the allegations are "for failure to comply with the original alimony or divorce decree." (Emphasis supplied.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). See Hall , 335 Ga. App. at 212 (2), 780 S.E.2d 787 ( OCGA § 19–6–2 is inapplicable to actions seeking modification......
  • Reid v. Reid, A18A1498
    • United States
    • Georgia Court of Appeals
    • February 8, 2019
    ...fees even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). Under OCGA § 19-6-2 (a) (1),[t]he grant of attorney’s fees as a part of the expenses of litigation, made at an......
  • Hall v. Hall, No. A15A1032.
    • United States
    • United States Court of Appeals (Georgia)
    • November 19, 2015
    ...fees even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga.App. 640, 641, 649 S.E.2d 838 (2007). Here, Felice 335 Ga.App. 211sought attorney fees under both OCGA § 19–6–2 and OCGA § 9–15–14. However, in its or......
  • Rowles v. Rowles, A19A0467, A19A0719
    • United States
    • Georgia Court of Appeals
    • June 28, 2019
    ...fees even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). Here, the Husband sought, and the trial court awarded, attorney fees under both OCGA §§ 9-15-14 and 19-6-2. We......
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20 cases
  • Moore v. Hullander, A18A0592
    • United States
    • United States Court of Appeals (Georgia)
    • April 25, 2018
    ...allegations are "for failure to comply with the original alimony or divorce decree." (Emphasis supplied.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). See Hall , 335 Ga. App. at 212 (2), 780 S.E.2d 787 ( OCGA § 19–6–2 is inapplicable to actions seeking modifi......
  • Reid v. Reid, A18A1498
    • United States
    • Georgia Court of Appeals
    • February 8, 2019
    ...even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). Under OCGA § 19-6-2 (a) (1),[t]he grant of attorney’s fees as a part of the expenses of litigation, made at an......
  • Hall v. Hall, No. A15A1032.
    • United States
    • United States Court of Appeals (Georgia)
    • November 19, 2015
    ...even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga.App. 640, 641, 649 S.E.2d 838 (2007). Here, Felice 335 Ga.App. 211sought attorney fees under both OCGA § 19–6–2 and OCGA § 9–15–14. However, in its or......
  • Rowles v. Rowles, A19A0467, A19A0719
    • United States
    • Georgia Court of Appeals
    • June 28, 2019
    ...even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). Here, the Husband sought, and the trial court awarded, attorney fees under both OCGA §§ 9-15-14 and 19-6-2. We......
  • Request a trial to view additional results

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