Haley v. Haley

HUNSTEIN, Presiding Justice,

concurring.

I concur fully in the majority’s opinion that the trial court was authorized to award Ms. Haley attorney fees under the settlement agreement provision in issue in this case. While this resolution renders dicta any discussion of OCGA§ 19-6-19 (d), I write separately to reject the dissent’s position that an award of attorney fees to Ms. Haley as the prevailing party in this modification of child support proceeding would not be proper under that statute.

Nothing in OCGA § 19-6-19 (d) precludes an award of attorney fees to a party who prevails in the settlement of a modification of alimony proceeding. “In proceedings for the modification of alimony for the support of a spouse or child pursuant to the provisions of this Code section, the court may award attorneys’ fees, costs, and expenses of litigation to the prevailing party as the interests of justice *206may require.” Id.4 Modification proceedings resolved by settlement rather than by trial are not excluded or otherwise singled out for different treatment under this language. The sole limitation set forth in the statute is that the award reflect “the interests of justice,” a legislative requirement that would be seriously compromised by the dissent’s proposed interpretation of the statute.

Nor does Shapiro v. Lipman, 259 Ga. 85 (377 SE2d 673) (1989) support the dissent’s position. Shapiro merely holds that when a modification of alimony proceeding is tried before a jury, the “prevailing party” for purposes of an award of attorney fees under OCGA § 19-6-19 (d) is determined by the jury’s verdict, not by the trial court. Shapiro did not address and thus does not serve as authority for the dissent’s claim that trial courts are prohibited from awarding attorney fees under OCGA § 19-6-19 (d) to parties who prevail in modification proceedings resolved by settlement rather than by trial.

Finally, policy considerations weigh against the dissent’s position in light of the disincentive it provides for former spouses to resolve their differences by any means other than trial. The special treatment the law gives domestic relations cases reflects the unfortunate reality that ex-spouses rarely handle their conflicts with the disinterested arm’s-length objectivity seen in commercial law cases. Instead of promoting the settlement of disputes over alimony, the dissent would exacerbate the bitter battles that too often follow divorce by adding attorney fees, costs and expenses of litigation to the list of contested items that the parties would have to address before an agreement outside of the courtroom could be reached.

For these reasons and consistent with the plain language of the statute, I would recognize that where a modification of alimony proceeding is settled by the parties, the trial court is authorized under OCGA § 19-6-19 (d) to determine whether one party prevailed and, if so, whether the interests of justice require that attorney fees, costs and expenses of litigation be awarded to the prevailing party.

As the majority notes, OCGA § 19-6-19 (d) was amended, effective July 1, 2006, to delete any reference to child support.