In Atlanta divorce cases, individuals sometimes believe that their spouse is bringing a contempt action for frivolous reasons. Often times those individuals will seek out attorney's fees for having to defend against a frivolous case. A new case in Georgia sets some ground rules regarding attorney's fees.
In Cole v. Cole, Mr. Cole and Mrs. Cole were divorced in June 2013, and in June 2014, Mr. Cole filed a petition for contempt against Mrs. Cole, contending that she had willfully violated several provisions of the parties' custody and visitation agreement. Cole v. Cole, 333 Ga. App. 753 (2015). Mrs. Cole denied the allegations and sought out attorney fees and expenses of litigation pursuant to O.C.G.A. § 19-6-2 for having to defend Mr. Cole's claims. Id. The trial court held a hearing and "dismissed the contempt petition as groundless, and then heard Mrs. Cole's counsel regarding the amount of attorney fees incurred thus far." Id. at 753-54. "The [trial] court further found that Mr. Cole's petition was frivolous, lacked substantiating evidence, and 'was an effort to 'nit-pick' the Court's prior Orders rather than to view the spirit and overall intent of the Court's prior Orders.'" Id. at 754. The trial court then awarded Mrs. Cole $3,000.00 in attorney fees. Id.
Mr. Cole appealed the trial court's order directing him to pay attorney fees and he contended that the "trial court erred in awarding the fees because (1) his ex-wife did not file a separate motion for fees and he was not afforded a separate hearing on the fees issue, (2) his contempt petition was not frivolous, and (3) the court failed to consider any evidence of the parties' financial circumstances." Id. at 753.
The Appellate Court found that (1) while Mrs. Cole did not file a separate motion for fees and Mr. Cole was not afforded a separate hearing on the fees issue, he "never objected to the trial court's consideration of attorney fees during the contempt hearing, and thus he has waived this issue for appellate review." Id. at 754. Additionally, (2) Even though Mr. Cole asserted that the trial court erred in awarding attorney fees because his contempt petition was not completely frivolous but had some merit, the Court of Appeals found that Mr. Cole's petition and the evidence presented at the hearing in this case, show that the trial court did not abuse its discretion in finding that the petition was frivolous. Id. Finally, (3) Finally, the Appellate Court agreed with Mr. Cole that the trial court erred in awarding attorney fees to Mrs. Cole absent evidence of the parties' financial circumstances or a motion for fees under OCGA § 9-15-14. Id. "Mrs. Cole prayed for attorney fees pursuant to O.C.G.A. § 19-6-2, which allows the award of fees in a case asserting contempt of a visitation and custody agreement '[w]ithin the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party.'" Id. (citing O.C.G.A. § 19-6-2 (a) (1)). Therefore, since the "trial court did not cite the statutory authority for its fees award, but found that the contempt petition was frivolous and brought without substantiating evidence," the Appellate Court held that "we affirm the trial court's dismissal of the contempt petition, but vacate the fees award and remand this case for further proceedings or findings as to that award." Id. at 753-54.
By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC