McLaws v. Drew

• Decision Date: 15 May 2020
• Docket Number: A20A0695
• Parties: MCLAWS v. DREW.
• Court: Georgia Court of Appeals

355 Ga.App. 162

843 S.E.2d 440

MCLAWS

v.DREW.

A20A0695

Court of Appeals of Georgia.

May 15, 2020

McLaws Law Group, Rebecca Wyatt McLaws, Marietta, for Appellant.

Crystal S. Wright, for Appellee.

Barnes, Presiding Judge.

This appeal arises out of a petition for contempt filed in Cobb County Superior Court by Monica Drew against her ex-husband, Jay Drew. After Monica prevailed on the petition, one of Jay's attorneys, Rebecca McLaws, filed a motion for a new trial or, alternatively, a motion to set aside and for reconsideration. McLaws subsequently filed a motion seeking the recusal of the trial judge. Following the trial court's denial of both motions, Monica moved under OCGA § 9-15-14 (b) for the attorney fees and expenses incurred in defending against the same. The trial court granted the motion for attorney fees and entered judgment against both McLaws and Jay. McLaws now appeals from that order, arguing that the trial court erred in granting the motion for attorney fees because both the motion for a new trial and the motion seeking recusal of the trial judge were supported by relevant legal authority and the facts of record. McLaws further contends that, even if the attorney fee award was proper, the order must be vacated because: (1) it contains no specific findings of fact as to the alleged misconduct of Jay or his attorney; and (2) it failed to identify what portion of the requested attorney fees was attributable to the alleged misconduct. For reasons explained more fully below, we find that the trial court erred in granting the motion for attorney fees, and we therefore reverse the trial court's order.

We review a trial court's award of attorney fees under OCGA § 9-15-14 (b) for an abuse of discretion. Shoenthal v. DeKalb County Employees Retirement System Pension Board , 343 Ga. App. 27, 30, 805 S.E.2d 650 (2017). Such an abuse of discretion occurs "where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law." (Citation and punctuation omitted.)

Donohoe v. Donohoe , 323 Ga. App. 473, 476 (1), 746 S.E.2d 185 (2013).

The record shows that Monica and Jay were divorced in 2017, and the couple has one child. Monica filed her contempt petition in July 2018, seeking monies owed under the parties’ divorce decree for the child's school tuition, extracurricular activities, and counseling sessions. The petition also sought to recover monies owed from checks returned by the bank, and requested an order requiring Jay to make all future payments directly to the court. On October 4, 2018, the trial court held a hearing on the contempt petition. Jay appeared at that hearing, represented by attorney Justin Chin. There is no transcript of the hearing, although Chin submitted an affidavit stating that he requested that the hearing be taken down, "but was told that the court reporter was busy." Chin further averred that during the lunch break of the October 4 hearing, Jay began experiencing symptoms of a heart attack. Chin drove his client to a local hospital and left Jay there while Chin returned to court. Chin informed the court of his client's status, offered to show the court a video of his client at the hospital, and requested a continuance. The trial court declined to view the video and denied the request for a continuance.

Chin further asserted that he reviewed the pleadings prior to the hearing, and they did not indicate "that child support and/or an arrearage" was being sought. Additionally, Chin stated that Monica presented no documentary evidence showing that Jay owed the amounts claimed. Chin also averred that Monica's lawyer submitted neither an affidavit nor billing invoices to substantiate her request for attorney fees, and Chin was not provided an opportunity to cross-examine plaintiff's counsel as to the reasonableness of those fees. Chin's affidavit testimony is unrefuted, and with respect to his claims regarding a lack of evidence, the record shows that on the day of the hearing, Chin filed with the clerk of court a list of the exhibits introduced by the defense at the hearing.¹ No such evidence list was filed by Monica.

Immediately after the contempt hearing, the trial court entered an order finding Jay was in willful violation of the parties’ divorce decree. Specifically, the court found that Jay owed Monica $4,411 in child support; $5,874 for school tuition for the previous and current years; $1,210 for the child's extracurricular activities; and $410 for the child's counseling services. The court further found that Jay had the ability to pay those amounts, because "he [was] capable of obtaining employment." Additionally, the court stated it had considered the financial circumstances of both parties and that under OCGA § 19-6-2, Monica was entitled to attorney fees of $2,600. The order required Jay to pay the entire amount owed ($14,505) to the Cobb County Sheriff's office by November 5, 2018. The order further provided that if Jay failed to pay by that date, the Cobb County Sheriff was to arrest Jay and hold him in jail until he purged himself of contempt by paying the entire amount.

On November 5, 2018, McLaws filed a motion for a new trial or, in the alternative, a motion to set aside and for reconsideration. The motion alleged that the trial court had erred in refusing to grant a continuance following Jay's medical emergency, resulting in a violation of Jay's constitutional right to due process; in allowing evidence of Jay's alleged arrearage of child support payments, as the same had not been requested in the petition and Jay therefore had no notice he needed to defend against that claim; in failing to consider Monica's in judicio admissions relating to the alleged child support arrearage; in awarding attorney fees without receiving evidence or testimony as to the amount of those fees; and in failing to consider the financial circumstances of the parties before awarding attorney fees under OCGA § 19-6-2. In support of the new trial motion, McLaws submitted Jay's affidavit, in which he testified as to his trip to the hospital during the lunch break of the contempt hearing. Jay further testified that he lacked the ability to pay the amount required by the court, stating that he did not own a home and had neither a retirement account nor other assets he could liquidate. Additionally, Jay averred that he was never questioned by an attorney or the court as to his ability to pay an award of attorney fees. Jay's affidavit also contested the amount awarded to Monica by the court, stating that the evidence he presented at the hearing showed he did not owe the amount of child support arrearage awarded; that in calculating school tuition, the trial court ignored the evidence showing he had paid the amounts owed for August, September, and October 2018; and that the amount of money awarded Monica for the child's extracurricular activities exceeded the amount allowed by the divorce decree.

Although the filing of the motion for a new trial operated as a supersedeas to the judgment of contempt, the trial court apparently failed to communicate that fact to the Cobb County Sheriff's department and, on November 26, 2018, Jay was arrested and incarcerated. The following day, McLaws filed a motion seeking both a stay of enforcement of the contempt order and Jay's immediate release from custody. According to an affidavit submitted by McLaws, before she filed the motion, she contacted the trial court to inform it of the supersedeas effect of Jay's new trial motion and presented the court with a proposed order for Jay's immediate and unconditional release. The court, however, declined to enter the order and conditioned Jay's release on payment of $8,000 to Monica. On November 30, 2018, the trial court entered a consent order releasing Jay from jail, noting his payment of $8,000, and requiring him to pay the balance of $6,505 on or before December 17.

On December 7, in her capacity as Jay's attorney, McLaws filed a motion seeking the disqualification or recusal of the trial judge. In support of this motion, McLaws argued that the trial court's repeated violation of Jay's constitutional right to due process had created an appearance that the trial judge could not be impartial in deciding Jay's motion for a new trial. To support the arguments with respect to the violation of Jay's constitutional rights, McLaws submitted her own affidavit and the affidavit of Chin, detailing the trial court's refusal to continue the hearing after Jay suffered a medical emergency and its decision to jail Jay despite the filing of the motion for a new trial.

On December 10, the trial court entered an order denying Jay's motion to recuse. One week later, on December 17, the trial court held a hearing on both Jay's compliance with the contempt order and his motion for a new trial. That same day, Jay filed notice of his Chapter 13 bankruptcy petition, which stayed enforcement of the contempt order. The court, therefore, heard only the new trial motion. At that hearing, McLaws set forth the grounds for the new trial, including the failure to grant a continuance, the failure to consider the parties’ financial conditions before awarding attorney fees, the lack of evidence supporting the amounts allegedly owed under the divorce decree, and the evidence supporting a reduction in the amount awarded Monica. Less than three hours after the hearing, the trial court entered an order denying the motion for a new trial. In its order, the court did not address all of the arguments made by McLaws in either her written motion or at the hearing. Instead, the court only stated that the parties had the opportunity to present arguments and "[a]t the hearing, Defendant argued that the Court should vacate its October 4, 2018 [order] because the Court did not grant any of Defendant's requests for a continuance."

Following entry of the trial court's order, Monica moved under OCGA § 9-15-14 (b) for an award of...