Sprenkle v. Sprenkle

• Decision Date: 21 April 2022
• Docket Number: A22A0573
• Citation: 872 S.E.2d 472
• Parties: SPRENKLE v. SPRENKLE.
• Court: Georgia Court of Appeals

872 S.E.2d 472

SPRENKLE

v.SPRENKLE.

A22A0573

Court of Appeals of Georgia.

April 21, 2022

Patricia Dee Shewmaker, Atlanta, for Appellant.

Chad Hill Greer Greer, Denise Danielle VanLanduyt, Decatur, for Appellee.

Brown, Judge.

Paul Sprenkle, Jr. ("the husband") appeals from the trial court's dismissal of his petition to domesticate a foreign judgment and its award of attorney fees to Kathleen Sprenkle ("the wife"). As explained infra, because the husband failed to timely file a notice of appeal from the dismissal order, this Court is without jurisdiction to consider the merits of that order. However, we reverse the trial court's award of attorney fees to the wife under OCGA § 9-15-14 (b).

The relevant facts are undisputed by the parties. The husband and the wife married in 1988, and had three children during the course of their marriage. In 2012, the parties divorced in the state of New York, where the family had been living since 2009. On July 31, 2013, a trial court in New York awarded the husband primary physical custody of the children, and the husband moved the children to Georgia.

In 2014, the husband filed in the Superior Court of Cobb County a "Motion to Domesticate a Foreign Judgment and Petition for Modification of Parenting Time and Child Support." The husband sought to domesticate the 2013 New York judgment in Georgia pursuant to OCGA § 19-9-62, the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), and requested that the Georgia superior court take jurisdiction of custody and parenting time. On April 18, 2014, the New York trial judge e-mailed counsel for both parties to inform them that she "retained jurisdiction for 4 years,"¹ and that pursuant to the UCCJEA, she wanted to discuss the issue of jurisdiction with the Georgia trial judge assigned to the case. The Georgia and New York judges conducted a conference on June 6, 2014, and decided to set the case for a UCCJEA hearing in New York where that court would determine whether jurisdiction should be relinquished to Georgia. However, it appears from the record that the hearing never occurred. And, on March 12, 2015, the New York trial court issued an "Order and Money Judgment," ruling on issues of parent-child communication, travel expenses, and attorney fees, but making no reference to the jurisdictional issue. Nearly seven years later on April 6, 2021, with no notice to the parties, the Georgia trial court dismissed the 2014 action for dormancy, pursuant to OCGA § 9-2-60 (b) and OCGA § 9-11-41 (e),² expressly stating that its dismissal was not an adjudication on the merits.

On July 28, 2020, the husband filed a second "Motion to Domesticate a Foreign Judgment and Petition for Modification of Parenting Time," seeking essentially the same relief.³ On September 9, 2020, the wife moved to dismiss the petition based on New York not relinquishing jurisdiction and Georgia's lack of personal jurisdiction over her. The husband opposed the motion, requesting a UCCJEA conference with New York and asking the court not to dismiss his petition before the conference. In February 2021, the husband filed a motion in the New York court, seeking a declaratory judgment that the New York court no longer maintained exclusive, continuing jurisdiction over the custody proceedings. The court scheduled a hearing on the motion for March 23, 2021, but the hearing did not occur until May 25, 2021.⁴ Despite the husband's request, the Georgia court dismissed the 2020 petition on March 29, 2021. In the dismissal order, the court stated that after the New York court's July 2013 order, that court subsequently exercised its exclusive, continuing jurisdiction with its March 12, 2015 order, and because New York continued to have exclusive jurisdiction, it could not modify the order pursuant to OCGA § 19-9-63.

On May 13, 2021, before the hearing on jurisdiction in the New York court, the wife filed a motion for attorney fees, pursuant to OCGA § 9-15-14 (b), alleging that the husband's 2020 petition lacked substantial justification. The husband opposed the motion, arguing that the filing of the petition was justified, and countered for attorney fees. After a hearing on the cross-motions for attorney fees, the Georgia trial court ordered the husband to pay fees pursuant to OCGA § 9-15-14 (b), finding that the husband's 2020 petition lacked substantial justification. The court noted that the husband had filed a substantially similar petition in 2014, "which was likewise resolved in [the wife's] favor when, following a UCCJEA conference between this Court and the Supreme Court of New York, the latter continued to exercise its continuing jurisdiction[.]" The court also noted that the New York court has not determined that it no longer has exclusive, continuing jurisdiction or that a Georgia court would be a more convenient forum pursuant to OCGA § 19-9-63. In awarding attorney fees, the court noted that the invoices submitted by the wife's counsel reflected $7,489.35 in fees, but it found that only $6,257.35 was reasonable and necessary without further explanation.

The husband filed an application for discretionary appeal on September 24, 2021, which this Court granted. The husband subsequently filed his notice of appeal on October 25, 2021. On appeal, the husband argues that the trial court erred in dismissing his 2020 petition and in awarding attorney fees to the wife.

1. As an initial matter, "it is incumbent upon this Court to inquire into its own jurisdiction." (Citation and punctuation omitted.) MSM Poly v. Textile Rubber & Chemical Co. , 353 Ga. App. 538, 539 (1), 839 S.E.2d 4 (2020). The trial court entered the order granting the wife's motion to dismiss the husband's 2020 petition on March 29, 2021. That order was a final order and did not reserve any issues for further review by the court. Thus, the husband had 30 days therefrom to file an application for discretionary appeal to challenge the order. See OCGA § 5-6-35 (a) (2), (b), (d). He failed to do so. Moreover, the wife's post-judgment motion for fees under OCGA § 9-15-14, did not toll the time for the husband to appeal from the March 29, 2021 order dismissing his petition. See O'Leary v. Whitehall Construction , 288 Ga. 790, 791 (1), 708 S.E.2d 353 (2011) (motion for fees pursuant to OCGA § 9-15-14 does not toll time to appeal from final judgment); Hill v. Buttram , 255 Ga. App. 123, 124, 564 S.E.2d 531 (2002) (same). Because the husband failed to timely appeal from the March 29, 2021 order, this Court is without jurisdiction to consider the merits of that order. See Parker v. Robinson , 337 Ga. App. 362, 364 (1), 787 S.E.2d 317 (2016) (physical precedent only); In re Estate of Dasher , 259 Ga. App. 201, 204, 576 S.E.2d 559 (2002) ("a timely filed notice of appeal is a jurisdictional prerequisite to a valid appeal"). The only appealable order before the Court is the order awarding the wife attorney fees pursuant to OCGA § 9-15-14. Accordingly, we will not consider the enumerated error associated with the dismissal of the husband's petition.

2. The husband contends that the trial court erred in awarding attorney fees to the wife pursuant to OCGA § 9-15-14 because his petition did not lack substantial justification as defined by the statute. He also asserts that the trial court failed to include sufficient findings of fact to support its conclusion that his petition lacked substantial justification and that the award failed to show how the court arrived at the amount of fees awarded. We agree with the husband that the trial court abused its discretion in concluding that his 2020 petition lacked substantial justification.

OCGA § 9-15-14 (b) authorizes a trial court to award reasonable attorney fees upon a finding that an action or any part thereof lacked substantial justification or that the action was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. As used in this Code section, lacked substantial justification means substantially frivolous, substantially groundless, or substantially vexatious.

(Citation and punctuation omitted.) Spirnak v. Meadows , 355 Ga. App. 857, 872-873 (7) (d), 844 S.E.2d 482 (2020). We review a fee award under OCGA § 9-15-14 (b) for an abuse of discretion. Shoenthal v. DeKalb County Employees Retirement System Pension Bd. , 343 Ga. App. 27, 30, 805 S.E.2d 650 (2017). "Under an abuse of discretion standard of review, we are to review the trial court's legal holdings de novo, and we uphold the trial court's factual findings as long as they are not clearly erroneous, which means there is some evidence in the record to support them." (Citation and punctuation omitted.) Cohen v. Rogers , 341 Ga. App. 146, 148 (2), 798 S.E.2d 701 (2017). "To the extent that the evidence relevant to the question of attorney fees consists of the state of the law, we make our own assessment of that evidence and decide for ourselves whether the claim asserted below presented a justiciable issue of law." (Citation and punctuation omitted.) Russell v. Sparmer , 339 Ga. App. 207, 209 (1), 793 S.E.2d 501 (2016) (physical precedent only).

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