Butler v. Lee

SECOND DIVISION
ANDREWS, C. J.,
BRANCH AND MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 9, 2016

In the Court of Appeals of Georgia
A15A1937. BUTLER v. LEE.

MERCIER, Judge.

This Court granted Margaret Butler’s application for discretionary review of

the trial court’s order awarding attorney fees to Jenai Lee in connection with the

underlying child custody and support action. Butler contends that the trial court’s

award of $25,000, made pursuant to OCGA § 9-15-14, was unauthorized because (a)

she had no notice that the court was considering making such an award and, (b) the

amount of the award was an unapportioned “lump sum,” and was inconsistent with

the evidence and the court’s own findings. We hold that Butler received sufficient

notice that the court was considering awarding fees against her pursuant to OCGA §

9-15-14 (b), but that the court erred by failing to show that the award was apportioned
to include only those fees incurred because of the sanctionable conduct. We therefore

vacate the court’s order and remand the case with direction.

Butler and Lee were married in New York and underwent in vitro fertilization

procedures while living there. Lee’s eggs were fertilized with sperm from an

anonymous donor and transferred to Butler to carry to term. The child was born in

Georgia in 2011. Because at that time Georgia law did not recognize marriages

between persons of the same sex, Lee petitioned the Superior Court of Fulton County

to enter an adoption order “to confirm her status” as the child’s mother. See OCGA

§ 19-3-3.1 (2011) (prohibiting and not recognizing marriages between persons of the

same sex); but see Obergefell v. Hodges, _ U. S. _ (135 SCt 2584, 192 LE2d 609

(2015) (holding that same-sex couples have a fundamental right to marry, and state

laws excluding same-sex couples from civil marriage are invalid; states cannot refuse

to recognize a lawful same-sex marriage performed in another state on the ground of

its same-sex character). The trial court granted the adoption in August 2011, finding

that Butler (the child’s legal mother) expressly consented to the adoption; that Lee

was “an equal second parent to the child,” that the child should have the legal benefits

and protections of both women as his parents; that the parent-child relationship

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between Butler and the child would be preserved intact; and that Lee would be

recognized as the child’s second parent.

The parties later separated and, on February 18, 2013, Butler filed a petition for

the court to determine child custody and support issues. In the petition, Butler sought

joint legal and physical custody of the child and to be designated the child’s primary

physical custodian. Lee answered, seeking sole legal and physical custody.

In December 2013, before the custody and support issues were resolved, Lee

filed a motion for declaratory relief, seeking a determination that the adoption decree

terminated the legal relationship between Butler and the child. In her response to the

motion, Butler argued that Lee’s motion was filed in bad faith and unnecessarily

expanded the litigation. The court denied Lee’s motion, finding that Lee was estopped

from taking a position contrary to the one she had taken when she petitioned the court

for an adoption (i.e., requesting that both parties be granted equal rights to the child).

The court entered a final order on child support on August 25, 2014,

and entered a consent order providing for joint legal custody in October 2014.

On September 15, 2014, Butler filed a motion for attorney fees and litigation

costs pursuant to OCGA § 9-15-14, in connection with the defense of Lee’s motion

for declaratory relief. The same day, Lee filed a request for legal fees and litigation

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expenses. On September 16, 2014, Lee filed a motion for reconsideration of the child

support order. She also filed a response to Butler’s motion for fees and costs, arguing

that the motion for declaratory relief was necessary as it sought to clarify the

uncertainty of the parties’ legal rights, given that the case raised issues that were

undeveloped under Georgia law, and asserting that the motion for reconsideration (for

which Butler also sought fees pursuant to an amendment to her motion) was

necessary to, among other things, correct a clerical error in the support order.

In November 2014, Butler filed a response to Lee’s request for legal fees and

litigation expenses. In the response, Butler asserted that Lee had included no legal

authority or argument to support the request; stated that she (Butler) reserved the right

to present evidence on the reasonableness of the fees requested; quoted OCGA § 9-

15-14 (b) and asserted that Lee “cites no factual basis to support the fee request

specified in OCGA § 9-15-14”; and noted that a hearing was scheduled for January

8, 2015 on the issue of attorney fees.

The court held a hearing regarding fees and, on January 12, 2015, ordered Lee

to pay Butler $4,346 in fees pursuant to OCGA § 9-15-14 in connection with the

motion for declaratory relief. On January 15, 2015, the trial court entered the order

at issue in this appeal, ordering Butler to pay Lee $25,000 in attorney fees pursuant

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to OCGA § 9-15-14, finding that Butler’s conduct of “posturing and wrangling . . .

constituted stubborn litigiousness,” unnecessarily expanded the litigation and was

interposed for delay and harassment. The court found that Butler had, among other

things, (1) made it difficult for Lee to take the child to a dentist; (2) argued that the

child should stay with a third party during the day rather than with Lee, who was a

stay-at-home parent; and (3) refused mediation and forced Lee to file a motion to

enforce the parties’ agreement.

1. Butler argues that the trial court erred by awarding attorney fees to Lee

pursuant to OCGA § 9-15-14 (b), when Butler received no notice that Lee was

seeking such fees. This Court reviews a trial court’s decision to award attorney fees

pursuant to OCGA § 9-15-14 (b) for an abuse of discretion. Murray v. DeKalb

Farmers Market, 305 Ga. App. 523, 525 (2) (699 SE2d 842) (2010).

OCGA § 9-15-14 (b) provides, in pertinent part:

The court may assess reasonable and necessary attorney’s fees and
expenses of litigation in any civil action in any court of record if, upon
the motion of any party or the court itself, it finds that an attorney or
party brought or defended an action, or any part thereof, that lacked
substantial justification or that the action, or any part thereof, was
interposed for delay or harassment, or if it finds that an attorney or party
unnecessarily expanded the proceeding by other improper conduct.

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 Thus, OCGA § 9-15-14 (b) allows the court, either its own motion or on the

motion of any party, to assess attorney fees and litigation expenses (where the above

circumstances are present). However, the party against whom such fees are sought is

entitled to notice that such relief may be awarded. See Williams v. Cooper, 280 Ga.

145, 147 (1) (625 SE2d 754) (2006). “What the statute provides as the means of

giving proper notice is a motion for such fees filed of record by a party or some form

of notice to any person potentially liable for an assessment of fees under the statute

that the trial court is considering its own motion for the imposition of the sanctions

made available by the statute.” Id.

We conclude that Butler received adequate notice. Specifically, in Lee’s motion

to enforce the parties’ mediated custody agreement (filed in July 2014), Lee sought

attorney fees based on Butler’s conduct as allegedly having “unnecessarily

expand[ed] . . . these proceedings”; although Lee did not cite a particular statute in

the motion, the quoted language is found in OCGA § 9-15-14 (b). Then, on August

25, 2014, in its final order on child support, the court stated that it was reserving for

later “[t]he issue of legal fees which may be awarded, if there is such an issue in this

case,”and that after the parties have attempted to settle the fee issue, any party

seeking such fees shall make submissions on this issue . . . within 20 days from the

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entry of this Order”; the court noted in the order that the stated deadline was intended

to shorten the time allowed in OCGA § 9-15-14 (e). On September 15, 2014, Lee

filed a request for oral argument, legal fees and litigation expenses (without

specifying a statutory basis therefor), accompanied by an attorney’s affidavit,

itemized fee statements, and other documents. On September 30, 2014, the court

issued a notice that it would hear “Petitioner’s [Butler’s] and Respondent’s [Lee’s]

Motion for Attorney Fees” on January 8, 2015. In Butler’s November 2014 response

to Lee’s request for fees, Butler specifically cited OCGA § 9-15-14, asserted that Lee

was not entitled to a fee award pursuant to that statute, reserved the right to present

evidence of reasonableness of fees at oral argument, and noted that a hearing was

scheduled for January 2015 on the issue of attorney fees. It was after hearing

argument on the attorney fee issue that the court issued its ruling. Under the

circumstances, the record shows that Butler received sufficient notice that the court

was considering imposing attorney fees and litigation expenses against her pursuant

to OCGA § 9-15-14 (b), and also that she had an opportunity to challenge Lee’s

request for an award thereunder. See Citizens for Ethics in Government v. Atlanta

Dev. Auth., 303 Ga. App. 724, 736-737 (3) (694 SE2d 680) (2010) (affirming fee

award where, although trial court had not specifically stated that it was considering

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an award of attorney fees under OCGA § 9-15-14 (b), appellant had received ample

notice and an opportunity to challenge the award, because the trial court had told

appellant that it intended to take up at a bond hearing on its own motion the issue of

sanctions against him, including attorney fees). Compare Williams v. Cooper, 280 Ga.

145, 146 (1) (625 SE2d 754) (2006) (vacating attorney fee award under OCGA § 9-

15-14 (b) based on lack of notice because, prior to making fee award, no party had

filed a motion seeking attorney fees from appellant, the court had not mentioned that

it was considering an award under OCGA § 9-15-14 (b) or an award on any basis

against the appellant, and the hearing notice contained no reference either to OCGA

§ 9-15-14 (b) or to the possibility that appellant could be assessed attorney fees for

her conduct); Rowan v. Reuss, 246 Ga. App. 139, 140 (1) (539 SE2d 241) (2000)

(award of attorney fees made upon the court’s own motion under OCGA § 9-15-14

(b) was vacated and case remanded for hearing where attorney fee issue was raised

during closing arguments at child support hearing and record did not demonstrate that

appellant had received adequate notice of court’s intention to impose attorney fees).

2. Alternatively, Butler contends that the trial court erred by awarding Lee

$25,000 in attorney fees because the amount of the award was inconsistent with the

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evidence and the court’s findings of fact, and the law prohibited the trial court from

making an unapportioned or lump sum award of fees.

In its order, the trial court stated that Lee had incurred $106,000 in attorney

fees, but that she was only requesting $25,000 in fees. The court concluded that the

$25,000 request was “reasonable and necessary in addressing this protracted

litigation.” Citing what it characterized as an unnecessary expansion of the litigation

and conduct interposed for delay and harassment, the court entered against Butler an

award of $25,000 pursuant to OCGA § 9-15-14. The court did not indicate how the

award was apportioned to include only fees and expenses generated based on Butler’s

sanctionable conduct.

“As we have held, in cases involving OCGA § 9-15-14 (a) or (b), the trial court

must limit the fees award to those fees incurred because of the sanctionable conduct.

‘Lump sum’ or unapportioned attorney fees awards are not permitted in Georgia.”

Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009) (citations and

punctuation omitted). “[T]he trial court’s award of [$25,000] may have been

reasonable, but the trial court’s order, on its face fails to show the complex decision

making process necessarily involved in reaching a particular dollar figure and fails

to articulate why the amount awarded was $[25,000], as opposed to any other

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amount.” Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72) (2013). See

generally Franklin Credit Management Corp. v. Friedenberg, 275 Ga. App. 236,

242-243 (2) (d) (620 SE2d 463) (2005) (lump sum award not permitted, fee award

vacated, and case remanded for additional findings, where billing records did not

clearly delineate which fees were associated with the successful claim, and trial court

failed to sufficiently specify the basis for the particular amount awarded).

Consequently, we must vacate the order and remand the case for further action by the

trial court. See Brewer, supra; Fedina, supra. On remand,

[t]he court is directed to indicate the basis for its award. If the court
needs supplemental evidence to determine the amount of attorney fees
[and litigation expenses] reasonably attributable to the prevailing claim,
it may hold a hearing. Alternatively, if the court concludes it can make
the required determination without such evidence, by further
considering the evidence already submitted, it may do so.

Franklin Credit Management Corp., supra at 243 (citations and punctuation omitted).

Judgment vacated and case remanded with direction. Andrews, P. J., and

Branch, J., concur.

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