Day v. Mason, A20A0964

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBrown, Judge.
Citation357 Ga.App. 836,851 S.E.2d 825
Parties DAY v. MASON.
Decision Date18 November 2020
Docket NumberA20A0964,A20A1520

357 Ga.App. 836
851 S.E.2d 825

DAY
v.
MASON.

A20A0964
A20A1520

Court of Appeals of Georgia.

November 18, 2020


851 S.E.2d 827

Beverly L. Cohen, Roswell, for Appellant in A20A0964, A20A1520.

Brad Elliott Macdonald, Marietta, Megan Pownall Wyss, Atlanta, for Appellee in A20A0964.

Brad Elliott Macdonald, Vic Brown Hill, Marietta, for Appellee in A20A1520.

Brown, Judge.

357 Ga.App. 836

In these companion cases, Brandon Day appeals child support and attorney fee awards entered in two orders following a bench trial in his action for legitimation and custody of his minor daughter, K. R. D. In the first order, the trial court awarded future child support,

357 Ga.App. 837

half of K. R. D.’s extracurricular expenses, past child support, and attorney fees under OCGA §§ 9-11-37 and 19-9-3 (g) to K. R. D.’s mother, Ariel Mason. For the reasons explained below, we affirm this order except as to the awards of extracurricular expenses, past expenses, and attorney fees under OCGA § 9-11-37. In the second order, the trial court awarded appellate attorney fees to Mason under OCGA § 19-9-3 (g) for her defense of Day's appeal of the first order. We conclude that the statute does not authorize such fees, and we therefore reverse that ruling.

"In reviewing a bench trial, an appellate court views the evidence in the light most favorable to the trial court's ruling, defers to the trial court's credibility judgments, and will not set aside the trial court's factual findings unless they are clearly erroneous." (Citation and punctuation omitted.) Cousin v. Tubbs , 353 Ga. App. 873, n.1, 840 S.E.2d 85 (2020). So viewed, the evidence shows that Mason and Day were unmarried, but in a relationship, when K. R. D. was born in December 2016. Mason was then a full-time college student living with her parents, and Day was unemployed and living with his sister.

For the first few months of K. R. D.’s life, Day cared for her while Mason attended classes. When Day found a job, Mason hired nannies to care for K. R. D. at a cost of about $350 per week.1 Day paid Mason $350 every other week — money that Mason testified was meant to cover K. R. D.’s childcare expenses on alternating weeks. Mason graduated from college in July 2017 and thereafter began working full-time, with an additional part-time job on the weekends. Mason and Day ended their relationship in late 2017, but Day continued to make regular payments to Mason. Mason frequently requested additional money to cover K. R. D.’s non-childcare expenses, but — according to Mason — Day refused or ignored these requests.

In 2018, Mason enrolled K. R. D. in a mother's morning out program, and her nanny expenses dropped to about $275 per week. Around that same time, Day decreased the amount of his payments to Mason to $250 every other week. Once K. R. D.’s health improved, Mason enrolled her in a daycare that cost $255 per week. Day suggested some cheaper alternatives, which Mason rejected.

In October 2018, Day filed the instant action for legitimation, custody, and visitation. Mason filed an answer and counterclaim for paternity, child support, past child support, K. R. D.’s medical expenses not covered by insurance, and attorney fees. Following mediation, Mason agreed to the legitimation and the parties entered into a consent permanent parenting plan, which the trial court approved,

357 Ga.App. 838

that resolved custody and visitation issues. The case proceeded to a bench trial on the remaining issues.

With regard to Mason's claim for past child support, she presented evidence — including testimony and receipts — showing that she had spent $15,164.44 on non-childcare, non-medical expenses for K. R. D. since her birth, including clothes, diapers, formula, groceries, and toys; and $2,272.65 for K. R. D.’s mother's morning out program. Mason testified that she wanted Day to pay for half of those expenses. Mason also testified that she had paid $915 on out-of-pocket childcare expenses "when [she] did not get enough money from [Day] for his weeks of childcare," and she sought reimbursement for

851 S.E.2d 828

that full amount. Mason claimed that she had given Day credit for the money he had already paid toward K. R. D.’s childcare expenses and that the additional money she sought was for his share of K. R. D.’s other expenses. Finally, Mason testified that she wanted Day to pay fifty percent of the expense of K. R. D.’s future extracurricular activities.

Day presented evidence that he had already voluntarily contributed $16,304 toward K. R. D.’s expenses since her birth, even in the absence of a child support order. According to Day, these payments were not strictly for childcare, as Mason claimed, but instead were "for total ... child support period for [K. R. D.]" Day testified that Mason had failed to consult him before making purchases for K. R. D. and that she had spent "a ridiculous and excessive amount" on items that were not necessities. Day, however, did not specifically challenge any particular expenditure.

At the close of trial, Mason's counsel requested an award of attorney fees in the amount of $4,757 under OCGA § 9-11-37 on the ground that Day had failed to respond fully and timely to discovery requests. Counsel also sought $52,000 in attorney fees under OCGA § 19-9-3 (g) because Day had "failed to move th[e] case forward."

Following trial, the trial court entered a final order setting forth the parties’ gross incomes and relevant expenses and establishing the amount of Day's future monthly child support payments.2 The court also awarded "past expenses" to Mason, including $2,051.32 toward K. R. D.’s childcare expenses (including the mother's morning out program and "expenses incurred above [Day's] contributions toward childcare") and "$7,582.22 toward the other reasonable and necessary expenses for the minor child prior to the establishment of child support." The court directed Day and Mason to split the cost of

357 Ga.App. 839

K. R. D.’s extracurricular activities, but limited their obligation to "one (1) extracurricular activity for the minor child per season." Finally, the court ordered Day to pay all attorney fees that Mason requested — $4,757 under OCGA § 9-11-37 and $52,000 under OCGA § 19-9-3 (g).

We granted Day's application for discretionary review of the final order, resulting in the docketing of Case No. A20A0964. The trial court subsequently entered another order awarding Mason $12,000 in attorney fees under OCGA § 19-9-3 (g) "in anticipation of defending the pending appeal." Day filed a second application for discretionary review, which we also granted, resulting in the docketing of Case No. A20A1520.

Case No. A20A0964

1. Past Expenses. Day challenges the trial court's award of past expenses to Mason on various grounds. In their arguments regarding Mason's right to recover these expenses, both parties rely upon this Court's opinion in Weaver v. Chester , 195 Ga. App. 471, 393 S.E.2d 715 (1990), for the proposition that Mason was entitled to reimbursement for Day's share of "reasonable and necessary" actual, past expenditures made on behalf of K. R. D. While this amount is considered when determining the "maximum for a back support award," Smith v. Carter , 305 Ga. App. 479, 482 (2), 699 S.E.2d 796 (2010), a trial court must also "follow the Child Support Guidelines, which would include at least a consideration of the custodial parent's income, the noncustodial parent's income, and other child support obligations of the parents." Id. In this case, the record shows that the trial court signed an order, which was prepared and presented by Mason, ordering Day to pay half of Mason's past expenditures without applying the Child Support Guidelines to the parties’ incomes during the time the past expenditures were incurred. Accordingly, we vacate the portion of the trial court's order awarding "past expenses incurred on behalf of the minor child" and remand for further proceedings consistent with this opinion. See Medley v. Mosley , 334 Ga. App. 589, 594 (3), 780 S.E.2d 31 (2015) (vacating award of past child support

851 S.E.2d 829

that did not apply child support guidelines even though appellant argued different ground to overturn past child support award on appeal); Dept. of Human Resources v. Mitchell , 232 Ga. App. 215, 216 (1), 501 S.E.2d 508 (1998) ("the right of a child to support belongs to the child and cannot be waived by a parent"). Based upon our decision to vacate the trial court's award of past expenses, the majority of Day's remaining contentions with regard to Mason's recovery of past expenses are rendered moot, save those regarding laches and voluntary payment.

357 Ga.App. 840

(a) Day asserts that Mason cannot recover for past support because she accepted what he did pay and waited to pursue her claim until after he filed a legitimation action. However, Day cites no authority to support what appears to be a...

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2 practice notes
  • Richello v. Wilkinson, A21A0679
    • United States
    • United States Court of Appeals (Georgia)
    • November 1, 2021
    ...courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion." Day v. Mason , 357 Ga. App. 836, 842 (4), 851 S.E.2d 825 (2020) (punctuation omitted). And pursuant to OCGA § 9-11-37 (d) (1), if a party fails to appear for his properly not......
  • Richello v. Wilkinson, A21A0679
    • United States
    • United States Court of Appeals (Georgia)
    • November 1, 2021
    ...courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion." Day v. Mason, 357 Ga.App. 836, 842 (4) (851 S.E.2d 825) (2020) (punctuation omitted). And pursuant to OCGA § 9-11-37 (d) (1), if a party fails to appear for his properly noti......
3 cases
  • Richello v. Wilkinson, A21A0679
    • United States
    • United States Court of Appeals (Georgia)
    • November 1, 2021
    ...courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion." Day v. Mason , 357 Ga. App. 836, 842 (4), 851 S.E.2d 825 (2020) (punctuation omitted). And pursuant to OCGA § 9-11-37 (d) (1), if a party fails to appear for his properl......
  • Richello v. Wilkinson, A21A0679
    • United States
    • United States Court of Appeals (Georgia)
    • November 1, 2021
    ...courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion." Day v. Mason, 357 Ga.App. 836, 842 (4) (851 S.E.2d 825) (2020) (punctuation omitted). And pursuant to OCGA § 9-11-37 (d) (1), if a party fails to appear for his properly......
  • Rosser v. Clyatt, A22A0469
    • United States
    • United States Court of Appeals (Georgia)
    • June 2, 2022
    ...attorney fees also includes an award of appellate fees depends on the language of the statute." (Citations omitted.) Day v. Mason , 357 Ga. App. 836, 847 (6), 851 S.E.2d 825 (2020). "A party can, however, recover attorney fees 364 Ga.App. 104 incurred on appeal when attorney fees ......

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