Glaza v. Morgan
| Decision Date | 14 March 2001 |
| Docket Number | No. A01A0693.,A01A0693. |
| Citation | 548 S.E.2d 389,248 Ga. App. 623 |
| Parties | GLAZA v. MORGAN. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Turner, Turner & Turner, Nelson G. Turner, Atlanta, for appellant.
Miles W. Rich, for appellee.
We granted Joel Glaza's application for discretionary appeal of an order of the Superior Court of Gwinnett County awarding attorney fees to his former wife, Jamie Morgan, in her child custody modification action against him. Because we find no basis for the award under Georgia law, we reverse.
Glaza and Morgan were divorced in the Superior Court of Cherokee County. Their divorce decree provided for joint custody of their minor child and named Morgan as the primary custodian and ultimate decision maker. Glaza was given custodial visitation with the child on alternating weekends from 6:00 p.m. on Friday until 9:00 a.m. on Monday and each Wednesday from 6:00 p.m. until either Thursday or Friday at 9:00 a.m. (depending on whether he had custody of the child the following weekend).
After Glaza moved from Fulton County (where Morgan resides) to Gwinnett County, Morgan brought this action against him there. In her complaint, Morgan sought to discontinue the joint custody arrangement and eliminate weeknight visitation because of Glaza's change of residence. She also charged Glaza with contempt of the parties' divorce decree for refusing to disclose his business and residential addresses and for failing to pay child support.
Glaza denied that there had been any material change in circumstances warranting reduction of his custody rights. He also asserted that there was a pending contempt action by Morgan against him in the Cherokee County Superior Court. In addition, he filed a counterclaim seeking modification of the divorce decree to allow his wife or mother to pick up the child for visitation when it is inconvenient for him to do so.
Morgan offered to settle the case by retaining essentially the same weekend visitation schedule, but substituting afternoon and evening visits on Wednesdays in place of overnight stays. Glaza responded with a suggestion that the parties mediate the dispute, but Morgan refused. Glaza then made a settlement offer that would have expanded rather than restricted the amount of time the child spends with him on weeknights.
Approximately two weeks later, the case came on for a hearing. From the bench, the court determined that there had been a substantial change in condition warranting modification of the parties' divorce decree. The court ruled that Glaza's custody would be changed to Wednesday nights from after school until 8:00 p.m. and on alternating weekends from Friday after school until Sunday at 6:00 p.m. The court also ruled that joint legal custody would remain in effect and that Glaza's wife and mother could pick up the child on days when Glaza has custody. Other changes in the rather detailed summer, holiday, and birthday visitation schedule necessitated entry of a lengthy order, which Morgan drafted. One month after the hearing, the court entered the order with a number of handwritten insertions and deletions.
On the date the order was entered, Morgan filed a motion for attorney fees under OCGA § 9-15-14(b) based on allegations that Glaza had acted in a vexatious, stubborn, and litigious manner by ignoring her settlement offers and making no reasonable counteroffers. Glaza then requested attorney fees under OCGA § 9-15-14(b) for having to defend both Morgan's complaint and her request for attorney fees. The court entered an order finding that "relative equities would be best served" by granting Morgan's attorney fee request and denying Glaza's. The court awarded Morgan $2,498 in fees.
Under OCGA § 9-15-14(b), a court may assess reasonable and necessary attorney fees and expenses of litigation if it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification, i.e., was substantially frivolous, groundless, or vexatious.1 A decision under OCGA § 9-15-14(b) must be sustained unless the trial court abused its discretion.2
We interpret the order appealed as a refusal to award attorney fees to either party under OCGA §...
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