Hall v. Hall, A15A1032.

• Decision Date: 19 November 2015
• Docket Number: No. A15A1032.,A15A1032.
• Citation: 335 Ga.App. 208,780 S.E.2d 787
• Parties: HALL v. HALL.
• Court: Georgia Court of Appeals

335 Ga.App. 208

780 S.E.2d 787

HALL

v.HALL.

No. A15A1032.

Court of Appeals of Georgia.

Nov. 19, 2015.

Reconsideration Denied Dec. 9, 2015.

James Stephen Lewis, Savannah, for Appellant.

Jonathan Everett Mills, for Appellee.

BOGGS, Judge.

Keith Hall, the father of 18–year–old L.H. and 16–year–old Z.H., appeals from both a temporary order and final order modifying child support, finding him in contempt, and awarding Felice Hall attorney fees. Keith contends that the trial court erred by (1) finding him in contempt for failing to pay child support, (2) awarding attorney fees without specifying a statutory or factual basis for such an award, (3) granting a temporary modification of child support without setting forth the specific information required by OCGA § 19–6–15(c)(2), and (4) awarding temporary attorney fees pursuant to OCGA § 19–6–15(k)(5). We granted Keith's application for discretionary review, and, for the reasons explained below, we affirm the contempt finding and the temporary modification rulings, but we vacate the award of attorney fees in the final order and remand the case with direction.

The record shows that L.H. and Z.H. were born out of wedlock, but Keith legitimated both children. The children's mother, Joanne Dean, consented to the placement of the children with Felice, Keith's former sister-in-law,¹ and is not a party to this appeal. There does not appear to be any dispute regarding the underlying facts in this case. The minor children have been the subject of numerous court orders, and, except for a period between 2002 and 2004, they have lived with Felice since 2000.² On July 6, 2001, Keith was ordered to pay child support in the amount of $112.00 per child per month through Child Support Enforcement. Keith was found to be in contempt of the child support order on April 11, 2002, and once again the court ordered him to pay $112.00 per child per month through Child Support Enforcement. Felice was granted final legal custody and control of the children on March 28, 2005. At some point in 2010 or 2011, Felice opened a case with Child Support Services to collect child support. As a result, Child Support Services initiated collection activities, including interception of a tax refund due to Keith and enforcement of an income deduction order against his wages.

In 2012, Keith filed a motion to modify the previous court orders to obtain custody of or reasonable visitation with the children, and the court entered an order allowing some limited visitation. Keith also filed a petition for legal and equitable relief from the child support order, arguing, in part, that Felice used fraudulent and deceitful means to obtain child support from him. Felice denied the allegations and filed a counterclaim for modification of child support and necessaries, including a request for attorney fees incurred in connection with the action. She subsequently amended her counterclaim to add a count for contempt and requested attorney fees pursuant to OCGA §§ 9–15–14 and 19–6–2 based on the costs incurred to enforce the prior court orders for child support.

On March 21, 2013, the trial court considered Felice's request for a temporary modification of child support and entered an order modifying the award of child support to $509.00 per month. The trial court also awarded Felice attorney fees in the amount of $1,080.00. On September 23, 2013, the trial court dismissed Keith's petition based on his failure to comply with discovery requests or appear at a hearing to explain his non-compliance. It does not appear that this order was ever appealed. Thereafter, on June 16, 2014, the trial court entered a final order awarding Felice child support in the amount of $498.00 per month. The court further found Keith in contempt of previous court orders requiring him to pay child support, and it awarded Felice arrearage amounts and attorney fees.

1. Keith contends the trial court erred in finding him in contempt of court for failing to pay $19,077.03 in past due child support based on the original child support obligation obtained by Child Support Services and the subsequent temporary order in this action. According to Keith, Felice lacks standing to enforce the original child support order because she was never a party to the order or actions. He also suggests that Felice did not have the authority to request a "modification" of the original court order. We disagree.

First, Keith fails to cite any statute or case law suggesting that Child Support Services is the only entity entitled to enforce child support orders originally obtained by Child Support Services. In fact, the law suggests the opposite. Although Felice was not a party to the action when Child Support Services obtained the original child support order on behalf of the minor children in 2001, case law supports the argument that she has standing to enforce and modify the original child support order as the legal and physical custodian of the minor children. See generally Monroe v. Taylor, 259 Ga.App. 600, 577 S.E.2d 810 (2003) (affirming trial court's order awarding increase in child support to custodial parent when original award made to Department of Human Resources in child support recovery action).

Statutory authority also supports the conclusion that Felice has standing to pursue a modification of child support or a finding of contempt based on Keith's failure to pay child support pursuant to a previous court order. Under OCGA § 29–2–22(a)(3), as the children's guardian, Felice is authorized to "[b]ring, defend, or participate in legal, equitable, or administrative proceedings, ... as are appropriate for the support, care, education, health, or welfare of the minor in the name of or on behalf of the minor." In addition, OCGA § 19–6–15(e) permits a nonparent custodian to enforce the child support provisions in that subsection. And OCGA § 19–6–35(a) defines child support obligors and obligees as follows:

(1) "Child support obligee" means an individual to whom the payment of a child support obligation is owed and includes a custodial parent or caretaker of a child to whom such support obligation is to be paid or a governmental agency entitled by law to enforce a child support obligation on behalf of such parent, caretaker, or child.

(2) "Child support obligor" means an individual owing a duty of support to a child or children, whether or not such duty is evinced by a judgment, order, or decree.

Here, Keith is the child support obligor and Felice is the child support obligee. As an obligee under a judgment requiring the payment of child support, Felice may pursue available remedies for enforcing the judgment, singly or concurrently with Child Support Services, until the judgment is satisfied. See Baars v. Freeman, 288 Ga. 835, 839(2)(a), 708 S.E.2d 273 (2011) ; Dept. of Human Resources v. Chambers, 211 Ga.App. 763, 766(2), 441 S.E.2d 77 (1994) (mother permitted to file contempt against father ordered to pay child support through DHR).

"A trial court's ruling on a contempt motion will be affirmed if there is any evidence to support it." (Citation omitted.) Baars, supra, 288 Ga. at 838(2), 708 S.E.2d 273. In this case, Keith legitimated the children and acknowledges that a child support order was entered. He has failed to demonstrate that Felice, as the children's guardian, lacks standing to pursue a contempt action based on his failure to pay child support pursuant to the previously entered court orders. The trial court's order finding him in contempt is therefore affirmed.

2. Keith argues that the trial court erred in awarding attorney fees without specifying a statutory or factual basis for the award. We are constrained to agree.

"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." (Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga.App. 640, 641, 649 S.E.2d 838 (2007). Here, Felice sought attorney fees under both OCGA § 19–6–2 and OCGA § 9–15–14. However, in its order granting Felice's temporary modification for child support, the trial court awarded attorney fees "in accordance with [OCGA] § 19–6–15," and in its final order, the trial court failed to specify any statutory basis for the award: "Additionally, the Court awards the previous attorney's fees in the amount of $380.00 [which] were awarded in the prior Order. Additionally, the Court awards $5,000.00 in attorney's fees to the Respondent as part of the attorney's fees incurred in bringing this action."

Georgia appellate courts have repeatedly held:

When there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

(Citations omitted.) Viskup v. Viskup, 291 Ga. 103, 106(3), 727 S.E.2d 97 (2012) (court may review record to determine statutory basis of attorney fees order); see also Blumenshine v. Hall, 329 Ga.App. 449, 454(5), 765 S.E.2d 647 (2014). The final order in the present case does not cite a statutory basis for the award or track any statutory language, so we must look to the record to see if it reveals the basis of the award.

We first turn to the two attorney fees statutes specified by Felice in her counterclaim: OCGA §§ 19–6–2 and 9–15–14.

OCGA § 19–6–2(a)(1) authorizes the grant of attorney fees in a divorce action within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney[ ] fees, if any, to be allowed against either party. OCGA § 9–15–14(b) authorizes an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial

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