Moore v. Hullander

• Decision Date: 25 April 2018
• Docket Number: A18A0592
• Citation: 814 S.E.2d 423
• Parties: MOORE v. HULLANDER.
• Court: Georgia Court of Appeals

345 Ga.App. 568

814 S.E.2d 423

MOORE

v.HULLANDER.

A18A0592

Court of Appeals of Georgia.

April 25, 2018

McRae, Smith, Peek, Harman & Monroe, John F. Niedrach, for appellant.

Perrotta, Lamb & Johnson, Anthony N. Perrotta, for appellee.

Barnes, Presiding Judge.

Following the grant of his application for discretionary appeal, Matthew James Moore appeals the trial court’s order granting attorney fees to his ex-wife, Noreen Dumas Hullander, in connection with a dispute over child custody and child support. For the reasons that follow, we vacate the attorney fees award and remand this case for further proceedings consistent with this opinion.

The record reflects that Moore and Hullander were divorced in 2005, and Hullander was awarded primary custody of their minor child and child support of $250 per month. Several years later, the trial court entered an order modifying child support to $450 per month. Subsequently, in March 2016, Moore filed a petition for modification of child custody. Moore attached to his petition the fourteen-year-old child’s affidavit of election to reside primarily with Moore. Hullander answered and counterclaimed for contempt against Moore for failing to pay the full $450 per month in court-ordered child support.

A temporary hearing on the issues of custody modification and contempt was held in May 2016. During the hearing, Moore paid his child support arrears in the amount of $16,400 to Hullander. Hullander stated that she did not intend to go forward with her contempt motion in light of Moore’s full payment at the hearing. At the conclusion of the hearing, the trial court declined to modify custody of the child during the remaining weeks of the school year, but the court indicated that it would revisit the issue of custody before the end of summer at the final hearing. However, a temporary order was never issued by the trial court after the hearing.

The child later changed her mind about living with Moore, and Moore decided in August or September 2016 that he would dismiss his petition seeking to modify child custody. However, Moore did not file his voluntary dismissal of his petition until March 2017.

Hullander filed a motion seeking attorney fees and expenses under OCGA §§ 9–15–14 (b) ; 13–6–11; 19–6–2 (a); and 19–9–3 (g). Moore opposed the motion, and a hearing on the issue of attorney fees was held in June 2017. At the hearing, Hullander’s attorney introduced, without objection, billing statements that covered the initiation of the case through early September 2016 that totaled $6,201, and the attorney stated in his place that his bills were reasonable and customary. Moore testified that he had decided to voluntarily dismiss his petition to modify custody once his child changed her mind about her election to live with him. Moore’s counsel also noted that the contempt issue "was wrapped up and was satisfied before any sort of litigation had to occur as to ... the contempt."

At the end of the hearing, the trial court announced that "based on certain factors," it would award Hullander attorney fees in the amount of $4,000. The trial court’s subsequent written order awarding attorney fees to Hullander did not specify the statutory basis for the award. The order stated:

[Hullander] is entitled to partial reimbursement of the attorney fees based on the fact that [Moore] was found in contempt of this Court for being substantially behind on his child support payments.

Further, the Court finds that [Moore] unreasonably delayed the resolution of this matter by his actions, or lack thereof.

After the trial court entered its written order awarding attorney fees to Hullander, Moore filed an application for discretionary appeal, which this Court granted. This appeal followed.

1. Moore contends that the trial court erred in predicating its award of attorney fees in part on a prior finding of contempt for failure to pay child support because no such finding had been made by the court. We agree.

As previously noted, in its order awarding attorney fees, the trial court stated that Moore had previously been "found in contempt of this Court for being substantially behind on his child support payments," and at the hearing on Hullander’s motion for attorney fees, the trial court stated that it had previously held Moore "in willful, indirect contempt of court for failure to pay child support." However, the record belies the trial court’s recollection of what had transpired earlier in the case and instead reflects that Hullander stated at the temporary hearing that she did not intend to go forward with her contempt motion in light of Moore’s full payment of his child support arrearage. Furthermore, the trial court never entered a written order after the temporary hearing that addressed the issue of contempt or any other issues raised at that hearing.

Because it is apparent from the record that Hullander did not go forward with her contempt motion and the issue of contempt was never adjudicated, the trial court abused its discretion by awarding attorney fees based in part on its erroneous finding that it had previously held Moore in contempt for failure to pay child support. See Harris v. Mahone , 340 Ga. App. 415, 429 (2), 797 S.E.2d 688 (2017) (trial court abused its discretion where the court’s ruling on attorney fees was predicated on "an erroneous factual finding"); Postell v. Alfa Insurance Corp. , 332 Ga. App. 22, 28 (2) (a) (iii), 772 S.E.2d 793 (2015) ("An abuse of discretion occurs where the trial court ... clearly errs in a material factual finding.") (citation, punctuation, and emphasis omitted).

2. The trial court also awarded attorney fees on the ground that Moore "unreasonably delayed the resolution of this matter by his actions, or lack thereof." Moore argues that the trial court’s award of attorney fees on that ground was improper because the court failed to set forth a statutory basis or sufficient factual findings to support the award. Again, we agree.

"As a general rule, an award of attorney fees and expenses of litigation are not available to the prevailing party unless authorized by statute or contract." Cary v. Guiragossian , 270 Ga. 192, 195 (4), 508 S.E.2d 403 (1998). To determine the statutory basis for a trial court’s award of attorney fees, we look to whether the trial court’s order "cite[s] a statutory basis for the award or track[s] any statutory language," whether the party seeking attorney fees specified the statutory basis for awarding the fees, and whether the record reveals the basis of the award. Hall v.Hall , 335 Ga. App. 208, 211 (2), 780 S.E.2d 787 (2015). Here, although the trial court did not specify a statutory basis for its award of attorney fees in its order, Hullander moved for attorney fees on several statutory grounds.

(a) Hullander moved for attorney fees based on OCGA § 19–6–2 (a),¹ but that statute "is expressly limited to actions for alimony, for divorce and alimony, and for contempt of an order arising out of an action for alimony or divorce and alimony." Viskup v. Viskup , 291 Ga. 103, 107 (3), 727 S.E.2d 97 (2012). OCGA § 19–6–2 (a) does not apply to a petition for modification of child custody, see id., or to contempt proceedings unless the allegations are "for failure to comply with the original alimony or divorce decree." (Emphasis supplied.) Cothran v. Mehosky , 286 Ga. App. 640, 641, 649 S.E.2d 838 (2007). See Hall , 335 Ga. App. at 212 (2), 780 S.E.2d 787 ( OCGA § 19–6–2 is inapplicable to actions seeking modification of child custody and is "limited to alimony and divorce cases and subsequent actions for contempt based on noncompliance with [the] divorce or alimony degree").

Moore commenced this action seeking to modify child custody, and Hullander’s counterclaim sought to have Moore held in contempt for failure to pay the full $450 per month in child support awarded by the trial court in an order entered subsequent to the original divorce decree, which had only awarded $250 per month in child support. Accordingly, attorney fees could not be awarded under OCGA § 19–6–2 (a) in this case. See Viskup , 291 Ga. at 107 (3), 727 S.E.2d 97 ( OCGA § 19–6–2"is not applicable to the case before us, which is a petition for modification of child custody."); Cothran , 286 Ga. App. at 642, 649 S.E.2d 838 ( OCGA § 19–6–2 (a) did not apply where "[t]he case involved no allegations of contempt for noncompliance with the original decree," but rather alleged contempt for violating a subsequent order entered by the trial court.); Hall , 335 Ga. App. at 209 (1), 212 (2), 780 S.E.2d 787 ( OCGA § 19–6–2 (a) did not apply where appellant was held in contempt for violating a child support order obtained by Child Support Services and a subsequent temporary order modifying child support).²

(b) Hullander also moved for attorney fees under OCGA § 13–6–11.³

A plaintiff is entitled to recover attorney fees under OCGA § 13–6–11 only if he can establish that the defendant has acted in bad faith in the underlying transaction. Therefore, the element of bad faith relates to the defendant’s conduct in entering into the contract or pertains to the transaction and dealings out of which the cause of action

arose, not to the defendant’s conduct after the cause of action arose.

(Citation and punctuation omitted.) Fertility Technology Resources v. Lifetek Medical , 282 Ga. App. 148, 153 (3), 637 S.E.2d 844 (2006). Here, at the hearing on Hullander’s motion for attorney fees, the trial court discussed some of Moore’s behavior leading up to this case and suggested that it could constitute bad faith under OCGA § 13–6–11. Notably, however, the trial court then stated that it would not "punish [Moore] for that [behavior] financially" because it "didn’t happen in this case," and in it its subsequent written order, the trial court did not award attorney fees based on a finding of bad faith by Moore prior to the litigation, but rather on a finding that Moore had unreasonably delayed the resolution of the case.⁴...