Suarez v. Halbert
| Decision Date | 16 November 2000 |
| Docket Number | No. A00A1240.,A00A1240. |
| Citation | 246 Ga. App. 822,543 S.E.2d 733 |
| Parties | SUAREZ et al. v. HALBERT et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sanders, Haugen & Sears, Robin G. Mayer, Newnan, for appellants.
Bogart & Bogart, Jeffrey B. Bogart, Christine C. Bogart, George R. Ference, Atlanta, for appellees.
Ernesto and Beatriz Suarez, as maternal grandparents, filed a petition under the Family Violence Act, OCGA § 19-13-1 et seq., seeking to halt their son-in-law from committing further acts of violence against their minor grandchildren. After a hearing, the court found merit to the petition and placed the grandchildren in the grandparents' care and custody. Subsequently, the parents filed a motion for attorney fees under OCGA § 19-13-4(a)(10), and the trial court assessed $10,440.55 in attorney fees against the prevailing grandparents, giving as the sole reason the disparity of income between the parties. We granted the grandparents' application for discretionary appeal to consider their contention that the attorney fees provision contained in the Family Violence Act was not intended to reward the perpetrators or the abettors of domestic violence.
On February 23, 1998, on behalf of themselves and their grandchildren, Ernesto and Beatriz Suarez filed a petition under the Family Violence Act solely against Michael J. Halbert. This petition alleged that Michael Halbert had committed and was continuing to commit multiple acts of violence which included: grabbing, dragging, and throwing his son; fighting with the children's mother; tying up his son in a bedroom and leaving him there; and making threats while in the children's presence to kill them, their mother, and himself. After an ex parte hearing, the trial court issued a temporary protective order to ensure the children's safety. Later, the trial court amended the order to add Beatriz Halbert as a party respondent to the petition.
Evidence presented at a hearing on March 4, 1998, showed that eight years earlier, Beatriz Halbert had filed her own petition under the Family Violence Act seeking protection from Michael Halbert. This petition alleged that Halbert had threatened to kidnap the children and to kill her and the children. The record also shows that in another incident occurring in May 1997, Beatriz Halbert summoned police after Halbert had engaged in a violent confrontation with their son.
After being informed that the son had been communicating his extreme fearfulness regarding his father to a close relative via e-mail, the trial court decided to conduct an in camera hearing with the children. In that hearing, both children confided that they were afraid to return home. After speaking privately with the children, the court noted, Based on all the evidence including the testimony of psychologists and other witnesses, the trial court ordered a two-month extension of the initial protective order and directed that visitation by the parents occur only under supervision.
On May 6, 1998, the trial court conducted a second evidentiary hearing. The court again spoke privately with the children and decided that based on the "rancor and animosity" shown, supervised visitation by the parents involving the son should not continue. The trial court refused to return the children to a situation where the court believed a threat of violence continued to exist. The order entered on June 10, 1998, extended the placement of the two children in their grandparents' custody and care, until midnight August 24. The court ordered psychological evaluations and gave specific instructions on schooling, telephone calls, personal possessions, and pets and required the grandparents to transport the children to certain school and church activities.
While this protective order remained in effect and while the grandparents were providing substantial care for both children, Michael and Beatriz Halbert filed a motion seeking reimbursement from the grandparents, the Suarezes, for attorney fees purportedly incurred in responding to the Family Violence Act petition.1 The Halberts sought the recovery of all their attorney fees billed through July 31, 1998, and totaling $20,880.91.
After oral argument on the motion for attorney fees, the trial court ordered the Suarezes to make four monthly payments solely to Beatriz Halbert, totaling $10,444.55, half of the total being sought. The court observed: The court explicitly stated that its order was not "based on any finding of bad faith or improper conduct by the grandparent petitioners during the course of the litigation."
1. The Suarezes contend that the trial court erred by applying a divorce and alimony "disparity of income" standard to a motion for attorney fees filed under the Family Violence Act. They claim that the statutory framework does not envision imposing attorney fees upon the prevailing party who acts in good faith in bringing such a petition. They urge that the court committed legal error by engrafting a "disparity of income" test borrowed from another statute onto the Family Violence Act. We agree.
When a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the "plain legal error" standard of review. Glover v. Ware, 236 Ga.App. 40, 45(3), 510 S.E.2d 895 (1999). Moreover, Gwinnett County v. Davis, 268 Ga. 653, 655, 492 S.E.2d 523 (1997). This is such a case. See Wood v. Dan P. Holl & Co., 169 Ga.App. 839, 841(2), 315 S.E.2d 51 (1984).
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. Indus. Distrib. Group v. Waite, 268 Ga. 115, 116(1), 485 S.E.2d 792 (1997). When awarded by statute, such fees may be obtained only...
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