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Georgia Case Law Update – Belcher v. Belcher

In family law cases, emotions often run high and there can be great anger between the parties, which can cause a party to want to go out of his/her way to make things more difficult for the other. However, any party who asserts a claim or defense simply to harass the other will be punished with attorney’s fees in Georgia. Specifically, Georgia law states “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” O.C.G.A. § 9-15-14(a)The term “shall,” as used in this code section, emphasizes that an award of fees is not up to the discretion of the Judge but, rather, is required in this situation. However, the court must make “express findings specifying the abusive conduct for which the award is made” in order for the award to stand. Williams v. Becker, 294 Ga. 411, 413-14 (2014). 

A recent example of this requirement can be seen in the Georgia Supreme Court case of Belcher v. Belcher. Belcher v. Belcher, S15A1451 (January 19, 2016). In that case, the parties’ divorce decree required the Husband to pay Wife $500/month in alimony under she died or remarried. Several years later, Husband stopped paying and, through his attorney, demanded proof of Wife’s current health status. Wife’s attorney responded by stating that Wife was alive and, as such, Husband was required to pay alimony. Rather than paying, Husband filed a Petition for Declaratory Judgment alleging that he did not know if Wife had survived her bout with cancer. At a hearing on this issue the trial court dismissed Husband’s petition, holding that the divorce decree was clear on the issue of alimony and Wife was clearly alive since she was at the hearing. Wife subsequently filed a motion for attorney’s fees under O.C.G.A. § 9-15-14(a) and prevailed.

Husband appealed to the Georgia Supreme Court, alleging that that award for fees was improper because the court did not make express findings specifying the abusive conduct for which the award was made. The Georgia Supreme Court agreed, vacating the order awarding attorney’s fees and remanding to the trial court with direction that it enter a proper order.

Husband’s actions in this case were clearly egregious in this case as he clearly knew Wife was alive before filing the declaratory judgment action and wasting Wife’s time and money. Nonetheless, the Georgia Supreme Court had no choice but to send the order back to the trial court for compliance with well established Georgia law. In the end, the Wife will still get her attorney’s fees, but the Husband wasted more time and money in the process.


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