Landry v. Walsh, A17A0449

• Decision Date: 25 May 2017
• Docket Number: A17A0450,A17A0449
• Citation: 801 S.E.2d 553
• Parties: LANDRY v. WALSH; and vice versa.
• Court: Georgia Court of Appeals

342 Ga.App. 283

801 S.E.2d 553

LANDRY

v.WALSH; and vice versa.

A17A0449

A17A0450

Court of Appeals of Georgia.

May 25, 2017

Reconsideration Denied July 7, 2017

Gregory David Golden, Atlanta, for Appellant in A17A0449.

Delia T. Crouch, Newnan, for Appellee in A17A0449.

Delia T. Crouch, Newnan, for Appellant in A17A0450.

Gregory David Golden, Eric Shapiro, Atlanta, for Appellee in A17A0450.

Miller, Presiding Judge.

In these appeals, Janine Landry and her ex-husband, Daniel Walsh, seek review of several rulings by the trial court arising out of the parties' custody dispute. In Case No. A17A0449, Landry challenges (i) the court's ruling excluding the testimony of a treating psychiatrist during the custody hearing; and (ii) the second of two court orders awarding attorney fees to Walsh. In Case No. A17A0450, Walsh seeks review of the first of the two court orders awarding him attorney fees. For the reasons that follow, we affirm the trial court's evidentiary ruling and reverse both of the attorney fee awards.

The parties' 2011 divorce decree granted joint legal custody of their two minor children to both parties and primary physical custody to Landry. A contemporaneous settlement agreement incorporated into the divorce decree gave Landry ultimate decision-making authority with respect to the children.

In March 2014, Walsh filed a custody modification petition and motion for contempt, asking the court, in relevant part, to investigate the children's condition and modify custody and visitation as warranted. Over the next year and a half, both parties—as well as the children's psychiatrist—vigorously contested numerous issues primarily concerning the children's medical and psychiatric care. In October 2014, while these disputes were ongoing, Walsh asked to be awarded primary physical custody of the children.

Following a two-day bench trial, the trial court granted Walsh sole legal custody of his children, directed Landry's visitation to be professionally supervised, and ordered her to pay Walsh child support and $4,000.00 in attorney fees under OCGA § 19-6-2 (the "First Fee Award"). Walsh timely moved for a new trial on the issue of attorney fees and also separately moved for attorney fees under OCGA § 9-15-14. Following a hearing on the motion for a new trial and fee request, the trial court awarded Walsh $50,000.00 in attorney fees under OCGA § 9-15-14 (the "Second Fee Award"). These appeals followed.

Case No. A17A0449

1. Landry contends that the trial court erred when it ruled that her children's psychiatrist's joint communications with her and the children are privileged and barred the psychiatrist from testifying as an expert at trial on that basis.¹ We discern no reversible error.

Under OCGA § 24-7-702, a witness with specialized knowledge may be qualified to provide expert opinion testimony. "A trial court retains broad discretion in determining whether to admit or exclude evidence, and an appellate court generally will not interfere with that discretion absent abuse." (Citation and punctuation omitted.) Thornton v. Hemphill , 300 Ga.App. 647, 650 (2), 686 S.E.2d 263 (2009) ; see Giannotti v. Beleza Hair Salon, Inc. , 296 Ga.App. 636, 639 (1), 675 S.E.2d 544 (2009) (applying same standard to expert testimony). To establish reversible error, a party seeking review of a trial court's ruling excluding testimony must show how the testimony would have benefitted her case. See Thornton , supra, 300 Ga.App. at 650 (2), 686 S.E.2d 263 ; Tarleton v. Griffin Fed. Sav. Bank , 202 Ga.App. 454, 455 (2) (b), 415 S.E.2d 4 (1992) ("An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.") (citation omitted). To make this showing, a party must proffer the excluded testimony to the trial court. See Thornton , supra, 300 Ga.App. at 650 (2), 686 S.E.2d 263. Absent such a proffer, we have no basis in the record to disturb the trial court's ruling. See id. ; accord Clemens v. State , 318 Ga.App. 16, 22 (4), 733 S.E.2d 67 (2012) (holding that the appellant failed to show how the trial court's exclusion of a witness's testimony harmed his case because, pretermitting any error in the evidentiary ruling, the appellant had not made a proffer of the proposed testimony to the trial court).

Before trial, Walsh moved to exclude the testimony of Stuart Davis, M.D., a psychiatrist who had treated the parties' children, on the ground that Dr. Davis's communications with the children and expert opinions regarding them are protected by the psychiatrist-patient privilege.² The court heard argument from both parties on Walsh's motion during the custody hearing. When asked why Dr. Davis's testimony was important, Landry responded merely that "he has extremely pertinent information with regard to [Landry]'s ability to parent and their psychological"—at which point the court asked another question. Following additional argument, the court granted Walsh's motion to exclude Dr. Davis's testimony.

Later in the hearing, Landry asked the court to reconsider its ruling excluding Dr. Davis's testimony. She asserted, without elaboration, that Dr. Davis could "speak directly to [the children's] mental state and what would potentially be in their best interest" because he had treated them for approximately two years. The court sustained its earlier ruling. At no point during the parties' argument did Landry seek to proffer the substance of Dr. Davis's proposed testimony on any topic, including the children's mental state or Landry's ability to parent.

Similarly, on appeal, Landry identifies no relevant facts or opinions about which Dr. Davis would have testified. Nor does she explain how such testimony would have benefitted her case. Although Landry briefly lists a handful of categories of purportedly non-privileged information Dr. Davis could have provided—such as unidentified information provided by third parties, the dates of treatment, and prescribed medications—she has identified neither the substance of any such testimony nor how such testimony would have benefitted her case.

Pretermitting the correctness of the trial court's ruling—upon which we express no opinion—absent a proffer of Dr. Davis's proposed testimony, Landry cannot establish prejudice resulting therefrom. See Clemens , supra, 318 Ga.App. at 22 (4), 733 S.E.2d 67 ; Thornton , supra, 300 Ga.App. at 650 (2), 686 S.E.2d 263. Consequently, she has not met her burden of showing reversible error in this regard, and we affirm the trial court's ruling on this issue. See Tolbert v. Toole , 296 Ga. 357, 363 (3), 767 S.E.2d 24 (2014) ("It is [the appellant]'s burden, as the party challenging the ruling below, to affirmatively show error from the record on appeal.") (citation omitted).

2. Landry challenges the trial court's Second Fee Award (purportedly made under OCGA § 9-15-14 ), contending that no evidence of legal fees incurred by Walsh supported the award and that the trial court insufficiently identified the factual and legal bases therefor. We agree.

Under OCGA § 9-15-14 (a), a trial court shall award reasonable and necessary attorney fees where a party has asserted a position that lacked any justiciable issue of law or fact so that it could not reasonably be believed that a court would accept it. Under OCGA § 9-15-14 (b), the trial court may award attorney fees where a party has brought an action or raised a defense that lacked substantial justification, brought an action for delay or harassment, or unnecessarily expanded the proceedings by other improper conduct. We review OCGA § 9-15-14 (a) attorney fee awards under an "any evidence" standard, while OCGA § 9-15-14 (b) awards are reviewed for abuse of discretion. See Doster v. Bates , 266 Ga.App. 194, 196-197 (1) & (2), 596 S.E.2d 699 (2004).

[W]hen a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14, it is incumbent upon the court to specify the conduct upon which the award is made. Indeed, a judgment devoid of such findings must be vacated and the case must be remanded for reconsideration. Furthermore, an order awarding attorney fees pursuant to this statute must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).

(Citations and punctuation omitted.) Woods v. Hall , 315 Ga.App. 93, 97 (2), 726 S.E.2d 596 (2012).

Here, the trial court's order awarding Walsh $50,000.00 in OCGA § 9-15-14 attorney fees neither contains any findings identifying the conduct underlying the award nor identifies the statutory subsection or subsections on which the award is premised. The trial court's oral ruling during the hearing on Walsh's motion for a new trial—in which the trial court stated, without elaboration, that the award was "[b]ased on what we've heard here today and what's gone on before"—likewise sheds no light on these issues.

Ordinarily, we would vacate the award and remand the case for the trial court to reconsider these issues in light of the evidence presented. See, e.g., Trotman v. Velociteach Project Mgmt., LLC , 311 Ga.App. 208, 214 (6), 715 S.E.2d 449 (2011) (concluding that the trial court did not abuse its discretion in deciding to award attorney fees under OCGA § 9-15-14 (b), but vacating and remanding for fact-finding as to how the court had apportioned its lump sum award of $30,000 to fees generated based on sanctionable behavior). Here, however, Walsh presented no evidence identifying any specific fees incurred as a result of any specific sanctionable conduct. Although Walsh's counsel asserted that he had incurred a total of $115,718.72 in attorney fees in this action, counsel introduced no evidence supporting either that initial calculation or counsel's apparently implied assertion that some unidentified portion of that amount was attributable to sanctionable conduct.³ Walsh's failure to meet his burden requires us to reverse the Second Fee Award. See Holloway v. Holloway , 288 Ga. 147, 150 (2), 702 S.E.2d 132 (2010) (revers...